MEMORANDUM OF CONSIDERATION


         IN THE CASE OF:



         BOARD DATE: 31 JULY 2003
         DOCKET NUMBER: AR2002079581

         I certify that hereinafter is recorded the record of consideration of the Army Board for Correction of Military Records in the case of the above-named individual.

Mr. Carl W. S. Chun		Director
Ms. Gale J. Thomas		Analyst

The following members, a quorum, were present:

Ms. Gale J. Wire		Chairperson
Ms. Karen A. Heinz		Member
Mr. Robert L. Duecaster		Member

         The Board, established pursuant to authority contained in 10 U.S.C. 1552, convened at the call of the Chairperson on the above date. In accordance with Army Regulation 15-185, the application and the available military records pertinent to the corrective action requested were reviewed to determine whether to authorize a formal hearing, recommend that the records be corrected without a formal hearing, or to deny the application without a formal hearing if it is determined that insufficient relevant evidence has been presented to demonstrate the existence of probable material error or injustice.

         The applicant requests correction of military records as stated in the application to the Board and as restated herein.

         The Board considered the following evidence:

         Exhibit A - Application for correction of military
records
         Exhibit B - Military Personnel Records (including
         advisory opinion, if any)

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APPLICANT REQUESTS: In effect, that his line of duty determination be changed from not in line of duty to in line of duty, and that he receive disability compensation.

APPLICANT STATES: That his accident was not the result of his misconduct, that he was in a coma for 15 days after the accident, his memory was gone, and that he had no recollection of what happened and still to this day cannot remember. In support of his request he submits documents showing his stay at the 130^th Station Hospital in Germany, verification of his surgery appointment on 8 August 1986 at Fort Gordon, Georgia, TDY Orders for further evaluation at Fort Gordon, Georgia on 18 May 1987, and a 1 August 2000 statement of his current condition from his physician. He also provides medical/lab records translated from German into English.

EVIDENCE OF RECORD: The applicant's military records show:

The applicant enlisted in the Regular Army on 6 August 1974, for a period of
3 years. He served in Germany from January 1975 to July 1977, in Korea from June 1981 to June 1982, and a second tour in Germany from May 1983 to May 1986.

On 26 May 1985, while in Germany he was involved in a motor vehicle accident. He was treated at a German Hospital for multiple trauma with face and skull fractures, a ruptured liver, third degree open dislocation talar fracture with soft tissue defect on the left foot, multiple tarsal injuries on his right, a peripheral talar head fracture, injuries to his right elbow and right hand, and several rib fractures from the second to the fifth ribs on the right. His head injury resulted in loss of consciousness, and required ventilatory support. He was in a coma for several days, and when that condition was resolved, and he had stabilized sufficiently he was transferred to the 130^th Station Hospital.

A Military Police Report dated 13 June 1985, states that the applicant was involved in a traffic accident that was caused by his failure to maintain control, excessive speed for the conditions, and drunk driving. The report shows his blood alcohol level was 1.72 percent.

On 18 November 1985, a Medical Evaluation Board (MEB) found that the applicant would probably be unfit for continued military service, however, his condition had not reached final resolution, but because of the prognosis for future traumatic arthritis and his serious foot injuries, it would be expected that he will be unable to fulfill duty requirements in the future. The MEB recommended referral to a Physical Evaluation Board (PEB). On 2 December 1985, the applicant agreed with the board’s findings and recommendation.

On 29 April 1986, a DD Form 261 (Report of Investigation, Line of Duty and Misconduct Status) determined that the applicant’s automobile accident was the result of his driving at a dangerously high speed for the road conditions, and a Blood Alcohol Test (BAT) conclusively demonstrated that he was driving while intoxicated (DWI). The findings were “not in line of duty,” that the accident was caused by the applicant’s negligence.

On 9 June 1986, the applicant was medically extended beyond his scheduled release date for completion of disability processing for multiple trauma with face and skull injuries and an impairment of his left leg.

A second MEB was conducted on 21 July 1987 because of the lapse of time between the original MEB (18 November 1985) and the line of duty determination. The MEB determined that under the provisions of Army Regulation 40-501, paragraph 3-36c(1) the applicant was unfit for continued military service, and recommended referral to a Physical Evaluation Board (PEB).

On 27 October 1987, a Physical Evaluation Board determined that the applicant’s condition precluded adequate performance of the normal duties associated with his office, grade, rank or rating and found him unfit for further military service. The applicant’s condition rendered him unfit to perform the duties of his grade and MOS, and since his disabilities were the result of his own actions and a line of duty determination of “Not in Line of Duty” had been made, his disabilities were not compensable under the Army Disability Program.

On 25 January 1988, the applicant was honorably separated from active duty, under the provisions of Army Regulation 635-40, for physical disability without severance pay. His DD Form 214 (Certificate of Release or Discharge fro Active Duty) indicated he had 13 years, 5 months, and 20 days of total active service.

The translated medical/lab records provided by the applicant indicates some of his injuries, but many of the entries are shown as illegible or blank, and have no physician signature.

Title 10, United States Code, Section 1207 states that each member of the armed forces who incurs a physical disability that, in the determination of the Secretary concerned, makes him unfit to perform the duties of his office, grade, rank, or rating, and that resulted from his intentional misconduct or willful neglect or was incurred during a period of unauthorized absence, shall be separated from his armed force without entitlement to any benefits under this chapter.




Army Regulation 600-8-1 states that line of duty determinations are essential for protecting the interests of both the individual concerned and the United States Government, where service is interrupted by injury, disease, or death. Formal line of duty investigations must be conducted for injuries or death involving the abuse of alcohol or other drugs. A formal investigation is a detailed investigation conducted by an appointed officer who appends appropriate statements and other documentation to support his or her findings, which are then submitted to the general court-martial convening authority (GCMCA) for approval. The GCMCA acts as the final approving authority for formal line of duty investigations in the name of the Secretary of the Army.

The regulation notes that line of duty findings or determinations must be supported by substantial evidence and by a greater weight of evidence than supports any different conclusion. The evidence contained in the investigation must establish a degree of certainty so that a reasonable person is convinced of the truth or falseness of a fact. It states specifically that the investigating officer should include copies of pertinent hospitalization or clinical records, and when relevant, the results of any blood, breath, urine, or tissue test for the intoxicating agent.

It states that an injury incurred as the “proximate result” of prior and specific voluntary intoxication is incurred as the result of misconduct. In order for intoxication alone to be the basis for a determination of misconduct with respect to a related injury, there must be a clear showing that the member’s physical or mental faculties were impaired due to intoxication at the time of the injury, the
extent of the impairment, and that the impairment was a proximate cause of the injury. Rule 3, Appendix F, of Army Regulation 600-8-1 states that injury or disease that results in incapacitation because of the abuse of alcohol and other drugs is not in line of duty, it is due to misconduct. This rule includes the effect of the drug on the member’s conduct and thought process, as well as the physical effect on his body. Any erratic or reckless conduct caused by the effect of the drug, which directly causes his injury or disease is misconduct

DISCUSSION: Considering all the evidence, allegations, and information presented by the applicant, together with the evidence of record, applicable law and regulations, it is concluded:

1. The applicant has provided no evidence to substantiate his claim that his accident and subsequent physical disabilities were not as a result of his misconduct. The applicant’s blood alcohol level was sufficient evidence, which would serve as a basis to establish “a degree of certainty that a reasonable person” would be convinced that the applicant’s automobile accident and subsequent injuries were the result of his intoxication, and excessive speed.


2. There is no evidence in the available records, nor has the applicant provided documentation to justify changing his line of duty investigation to “In Line of Duty.”

3. Because the applicant’s injuries were determined to have been incurred as a result of misconduct, the applicant is not eligible for compensation for his disabilities.

4. In order to justify correction of a military record the applicant must show to the satisfaction of the Board, or it must otherwise satisfactorily appear, that the record is in error or unjust. The applicant has failed to submit evidence that would satisfy that requirement.

5. In view of the foregoing, there is no basis for granting the applicant's request.

DETERMINATION: The applicant has failed to submit sufficient relevant evidence to demonstrate the existence of probable error or injustice.

BOARD VOTE:

________ ________ ________ GRANT

________ ________ ________ GRANT FORMAL HEARING

__GJW__ ___KAH _ ___RLD_ DENY APPLICATION

                  Carl W. S. Chun
                  Director, Army Board for Correction
of Military Records

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INDEX

CASE ID	AR2002079581
SUFFIX
RECON	YYYYMMDD
DATE BOARDED	20030731
TYPE OF DISCHARGE	(HD, GD, UOTHC, UD, BCD, DD, UNCHAR)
DATE OF DISCHARGE	YYYYMMDD
DISCHARGE AUTHORITY	AR . . . . .
DISCHARGE REASON
BOARD DECISION	DENY
REVIEW AUTHORITY
ISSUES 1.	108.00
2.
3.
4.
5.
6.