RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:        16 NOVEMBER 2004
      DOCKET NUMBER:  AR2004100060


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

|     |Mr. Carl W. S. Chun               |     |Director             |
|     |Ms. Deborah L. Brantley           |     |Senior Analyst       |


      The following members, a quorum, were present:

|     |Mr. Melvin Meyer                  |     |Chairperson          |
|     |Ms. Eloise Prendergast            |     |Member               |
|     |Mr. Robert Rogers                 |     |Member               |

      The Board considered the following evidence:

      Exhibit A - Application for correction of military records.

      Exhibit B - Military Personnel Records (including advisory opinion,
if any).

THE APPLICANT'S REQUEST, STATEMENT, AND EVIDENCE:

The applicant defers to counsel.

COUNSEL'S REQUEST, STATEMENT AND EVIDENCE:

1.  Counsel requests that the applicant’s 2002 not in line of duty-due to
own misconduct finding be corrected to show that the injuries sustained as
a result of a motorcycle accident were sustained in line of duty.

2.  Counsel states the line of duty (LOD) investigating officer incorrectly
concluded that the applicant’s personal injuries were the result of his
willful misconduct and the direct cause of his injuries.

3.  He states for some “inexplicable reason” the LOD investigating officer
did not address the role which the “gold sedan” played in the motor vehicle
accident and argues that five witnesses to the accident “provided
information which attributes as the cause of the motor vehicle accident,
the erratic operation of the gold sedan….”

4.  Counsel states that the witnesses all provided information “which
establishes that the immediate and direct cause of applicant’s motorcycle
accident was the manner in which the gold sedan accelerated as applicant
and (Mr. H - the other motorcycle rider) attempted to pass.”

5.  In sworn statements, rendered in December 2002, counsel cited the
following:

      a.  Witness and co-motorcycle rider – Mr. H: related that he and the
applicant had only two twelve ounce beers at the Round Up Tavern before
they left “around two, two-thirty or something….”  He states they had only
coffee at their second stop, the Elbe Tavern and left there about five.  He
states that the applicant was ahead of him most of the time on the road
after leaving the Elbe Tavern and that he and the applicant attempted to
pass a gold sedan twice, which was in front of them, but “they would speed
up.”  He states that the first time he and the applicant attempted to pass
the driver of the gold sedan sped up and that he and the applicant then
dropped back, at which time the driver of the gold sedan slowed down.  He
states that when he and the applicant attempted to pass the gold sedan the
second time the driver of the gold sedan again sped up. Mr. H related that
he told the applicant “They’re screwing with us too much” and he (Mr. H)
dropped back behind the gold sedan.  The applicant continued to try to pass
the gold sedan but the “sedan sped up again and prevented him from
passing.”  He states that he (Mr. H) “stood up on the foot pegs, looked
over to make sure there was nothing coming, because we were getting too
close to the curb [sic] there, and I didn’t see anything coming.  I seen
[the applicant] ride straight off.”  He states that when the applicant
began to pass the gold sedan the second time he was still in a passing
zone.  He maintains that because the gold sedan sped up they were unable to
pass the gold sedan on both occasions.  Mr. H also states that he took a
Breathalyzer test while in the police sedan and that he was told “it was
.017 and it was fine.”  He states he was verbally told the results and
permitted to get back on his motorcycle and drive to the hospital.  When
asked the question “in your opinion, after personally experiencing and
observing these events, what was the actual cause of [the applicant’s]
accident?” to which Mr. H responded “the car in front of us, because of
their erratic driving.”

      b.  Witness – Mr. F:  related that it was about five in the evening
and that he and his family, including his spouse (Mrs. F) were the lead car
on the road when “a woman in a gold sedan, a Lincoln Town Car, she passed
us.”  He states that he and his spouse both said something like “that
stupid lady” and then they were passed by the two motorcycle riders.  He
states that the two motorcycle riders attempted to pass the gold sedan and
the driver of the car accelerated so they backed off.  They attempted a
second pass and the driver of the car accelerated a second time preventing
the lead motorcycle from passing.  He states the motorcycles were in a
passing zone and “if they could have just passed her at the speed she
initially was traveling, they could have made a safe pass.”  He states that
he realized there had been an accident and stopped and that the driver of
the gold sedan also came back to the scene but “she was acting very
nervous.  Her mannerisms, or her disposition was very nervous.”  He states
that eventually the driver of the gold sedan said the applicant was “just
sleeping” and got in her car and left.  The driver of the gold sedan was
there less then five minutes.

      c.  Witness – Mrs. F:  related essentially the same information as
her spouse but also indicated that the driver of the gold sedan “was very
erratic” when she returned to the accident scene and that “She has a very
distinct appearance that a lot of people that use too much alcohol, smoke
too much and take drugs have.  It was really obvious that she was on
something.  She really looked crazy.”

6.  Counsel also stated that a North Carolina Licensed Private Investigator
and a certified accident reconstruction expert was “engaged to investigate
the motor vehicle accident, to visit the scene of the accident, interview
witnesses who had not previously been interviewed…and to obtain photographs
of the approach to the scene of the accident.”  The investigator talked to
the proprietor of the Round Up Tavern in December 2002 who related that Mr.
H and the applicant “may have had two beers each but were not drinking
heavily and only stayed a short while, possible 30 to 34 minutes total.”
The investigator spoke to the woman who served the applicant and Mr. H at
the Elbe Tavern in December 2002.  He noted that the woman stated “she
remembered while they were at the tavern they were drinking
coffee…and…neither [Mr. H] or [the applicant] had anything alcoholic where
they were at the Tavern and they were there over an hour.”

7.  Counsel argue that another woman, Ms. H, provided a witness statement
to the Washington State Patrol, but that her statement was not included in
the line of duty investigation, but that it is extremely important.
Counsel states that Ms. H related that the “other vehicle” was a “gold-
sedan” and that the driver was “very shaky, left scene within 5 mins.”  He
states that while Ms. H did relate in her statement that she “detected an
odor of alcohol on the victim” she also “makes clear reference to the other
motor vehicle.”

8.  Counsel states that another witness, SSG V, was interviewed but that
the line of duty investigating officer “only touched on the issue of the
gold sedan when he interviewed” SSG V.  He notes that in SSG V’s sworn
statement he related that he was told by Mr. F at the scene of the accident
about the involvement of the “gold sedan” in this motor vehicle accident,
and thereby corroborated Mr. F’s statement regarding the fact that the
woman in the gold car “was speeding so he [applicant] wouldn’t pass her.”

9.  Counsel states that “although it may be correct to conclude that
applicant was found to test positive for alcohol in his blood following the
accident, it is incorrect to conclude that any alleged alcohol impairment
was the ‘proximate cause’ of the injury….”  He states that the line of duty
investigation “completely fails to address the involvement of the ‘gold
sedan’ in the subject motor vehicle accident” and the “erratic operation of
which was clearly the actual and proximate cause of applicant’s motorcycle
accident.”

10.  Counsel provides a copy of the line of duty investigation and
associated documents, affidavits from the three individuals interviewed by
counsel, report of the private investigator, and extracts from the
Washington State Patrol/Police report.

CONSIDERATION OF EVIDENCE:

1.  Records available to the Board indicate that the applicant served an
initial period of active duty between 1982 and 1986.  In May 1988, while a
member of the United States Army Reserve, the applicant enlisted in the
Regular Army for a period of 4 years, in pay grade E-5.

2.  The applicant was trained as an infantryman and ultimately as a special
forces Soldier.  He was promoted to pay grade E-7 in 1999, had been awarded
several personal decorations, including the Army Good Conduct Medal, Army
Achievement Medals, and an Army Commendation Medal.  His performance
evaluation reports indicated that he was a successful Soldier and well
thought of by members of his rating chain.

3.  On a May 1993 reenlistment document, the applicant indicated that he
had been charged, and convicted of DWI (driving while intoxicated) in
January 1990.  He noted that he paid a fine and served 7 days in
confinement.  A driving record report, contained in the applicant’s file,
also indicates that in 1983 he was changed and convicted of DUI (driving
under the influence) his sentence of 90 days confinement was suspended
“upon payment of fine and costs” and that he surrendered his license and
not operate a motor vehicle on North Carolina highways for 6 months.”

4.  According to a “Statement of Medical Examination and Duty Status”
initiated on 17 June 2002, the applicant was admitted to Madigan Army
Medical Center at 1745 hours on 16 June 2002.  The document noted that the
applicant was involved in a motor vehicle accident, that he was under the
influence of alcohol at the time, and that a blood alcohol test was
completed and showed a 0.265.  The statement noted that the applicant
sustained internal injuries, a closed head injury, and multiple fractures.

5.  On 27 June 2002 a line of duty investigating officer was appointed.

6.  The handwritten “Police Traffic Collision Report,” included with
counsel’s documents to the Board, and which was listed as an exhibit in the
line of duty investigation report, notes that the applicant “vehicle #1 was
attempting to pass a vehicle #2 in a no pass zone just south of a curve.
Vehicle # 1 lost control on curve, left skid marks on S/W corner of
roadway, continuing west approximately 125 feet into a small revine [sic]
and brush area.  The vehicle came to rest 10 feet NW of the driver.”  The
hand drawing on the report shows a “solid” line on the road where the
applicant attempted to pass the vehicle.

7.  The photograph of the “approach to accident scene,” which was provided
by counsel as part of the private investigator’s report also shows a solid
line for the applicant’s lane as he approached the corner where the
accident occurred.

8.  A handwritten Washington State Patrol report completed on 16 June 2002
by Mr. F, who was subsequently interviewed by counsel in December 2002 and
provided a sworn statement, wrote in his description of “how the collision
happened” that:

      motorcyclists traveling N…proceeded to pass Lincoln in the passing
      [unreadable].  The Lincoln sped up in order to keep motorcyclists from
      passing.  Motorcyclist # 1 cleared car 15 to 20 ft rounding a corner
      (veering to the right) entering back into the N bound Ln.
      Motorcyclist #2 pulled back behind Lincoln (to keep from being
      unsafe).  The corner created a blind spot for me.  As I rounded the
      corner I saw only dust on the left side of the road from where the
      motorcyclist #1 had crashed in the bushes.  I pulled off the road
      approached driver who had crashed finding him unconscious smelling of
      alcohol.

9.  A second, handwritten Washington State Patrol report, completed on 16
June 2002 by Ms. H, described the “other vehicle” as a “gold sedan” and
that the driver, a “Blond woman” was “very shaky left scene within 5 min.”
She wrote in her description of “how the collision happened” that:

      Man was in bushes off motorcycle.  I was about 3ft away handing
      materials to other witness – a strong odor of alcohol was present from
      victim and other motorcycle rider.  Woman in gold sedan paced back and
      forth a couple of times – said he’s snoring and left the scene.  Other
      motorcyclist said that they had made victim stop drinking 2 hrs ago.
      Body was face down approx 10-15 ft from bike.

10.  On 15 July 2002 the line of duty investigating officer obtained a
statement from SSG V.  A copy of his statement was included in documents
provided to the Board by counsel as part of the line of duty investigation.
 SSG V related that he was on his way back from Mount Rainer on 16 June
2002 and:

      was passed by two motorcycles.  The next thing that happened when I
      came around the curve here the accident had taken place.  I saw the
      other motorcycle on the side of the road about 100m or so from the
      scene of the accident.  I stopped asked what happened.  He said that
      his buddy road off the road.  We turned around and went to the scene.
      At that time the fire chief in his POV drove by at that time.  I told
      him that there was an accident and to call 911.  When we got to the
      victim he was on his belly face down, the fire chief said that we need
      to pull him over.  We rolled him over making sure not to cause any
      injury to him.  His buddy said that they were drinking and he got him
      to stop about an hour or so before they were driving.  Mr. F I believe
      was behind the gold sedan and said that the lady in the gold car was
      speeding up so he wouldn’t pass her when he came around the curve he
      flew off into the ditch.  There was loose gravel on the road.  He
      could of lost control from the gravel.

11.  In a typed interview statement, also included with the line of duty
investigation provided by counsel, SSG V related that the motorcycles in
question passed him “and anxiously pass[ed] other vehicles in front.”  He
stated that “they were basically ‘leapfrogging’ the whole way.”  He
indicated that Mr. H told him “they had been drinking, but stopped an hour
ago prior to getting on the road” and that he “was able to sense a strong
odor of alcohol on [Mr. H’s] breath” and “also sensed alcohol from [the
applicant’s] body.”  The interview statement is listed as a “recorded
interview” by the line of duty investigative officer on his “Findings to
Line of Duty and Report of Investigation” and as an attached exhibit.

12.  The typed interview statement, included as part of the line of duty
investigation, from Mr. H, the other motorcycle rider, indicated that he
had “linked up” with applicant about 1PM at the Round Up Tavern.  He stated
that he did not think that the applicant had been drinking prior to their
meeting.  When asked if he thought the two of them “were excessively
speeding” Mr. H responded “no doubt in my mind that we were speeding.  In
my opinion he should have waited to clear the curve to pass the vehicle he
was trying to pass.”  Mr. H also related in the interview that when the
highway patrol showed up he “blew and it came out to be 0.017.”  The
interview statement is listed as a “recorded interview” by the line of duty
investigative officer on his “Findings to Line of Duty and Report of
Investigation” and as an attached exhibit.

13.  A copy of the “Chemistry-Plasma Toxicology” report, based on a blood
sample taken at 1905 hours on 16 June 2002, and included with the line of
duty investigation report, noted that the sample showed “ALCOHOL (ETOH) 265
MG/DL [milligrams/deciliter].”

14.  On 1 July 2002 the line of duty investigating officer reported in his
“Report of Investigation Line of Duty and Misconduct Status” that the
applicant “consumed alcoholic beverages to reach a alcohol blood level of
265MG/DL.”  He stated that “both riders were doing ‘leapfrogging’ to pass
other passenger vehicles on the road at high speed” and that when the
applicant “attempted to pass another vehicle in a no pass zone he lost
control of his motorcycle and crashed into a small ravine and brush area.”
The investigating officer noted that blood was drawn from the applicant
“immediately after admitting to the ER” and that his “blood alcohol level
at 1905 hours, just 30 minutes after the accident, was 265 MG/DL.”  He
stated that both SSG V and Ms. H related that “they were able to smell
alcohol literally coming out of [the applicant’s] pores as he was laying
face down….”
15.  The investigating officer noted that in determining the outcome of his
investigation that he, “as required by paragraph 41-13, Army Regulation 600-
8-1,” covered:

      a.  Speed of vehicles (motorcycles) involved as evidenced by
testimony of witnesses, skid marks, condition of roads, and the damage to
the motorcycles.

      b.  All road characteristics, natural obstructions to the driver’s
vision, and traffic signs.

      c.  Other vehicles, including any part played by them in creating the
conditions that resulted in the accident.

      d.  Light and weather conditions and their effect on driving
conditions.

      e.  Physical conditions of the driver, including sobriety, fatigue,
and exhaustion.

16.  He concluded that the evidence “supports a finding that [the
applicant] displayed willful misconduct in the direct cause of his injury.”
 He cited that portion of Army Regulation 600-8-1, which states that
“Injury results in incapacitation because of the abuse of intoxicating
liquor is not in line of duty.  It is due to misconduct” and the basis for
his conclusion that the applicant’s injuries were incurred “Not in the Line
of Duty-Due to Own Misconduct.”

17.  Documents contained with the line of duty investigation note that the
investigating officer met with the applicant and his mother on 11 July 2002
regarding his appointment to conduct a line of duty investigation.  The
applicant, however, was determined not to be medically competent to
understand or discuss his rights.

18.  A 23 July 2002 memorandum from the investigating officer and addressed
to the applicant, informed him (the applicant) that he (the investigating
officer) had concluded that the applicant’s injuries were incurred “not in
the line of duty-due to own misconduct.”  He provided the applicant with a
copy of the evidence gathered by him during his investigation and offered
the applicant to make a statement in his own behalf.

19.  An unsigned memorandum to the investigating officer, dated 6 August
2002, which was contained in the applicant’s official military personnel
file, appears to be a rebuttal to the line of duty findings.  The rebuttal
statement indicates that while he (the applicant) had no “independent
recollection of the events, the high blood alcohol content attributed to me
at the time of the accident conflicts with the statement and recollection
of [Mr. H], the person with whom I had spent the evening and was riding
with when the accident occurred.”  He noted that the “test result also
conflicts with the manner in which I have conducted myself in the past.”
He stated that “If the person who I had spent the evening with was not
intoxicated, it does not follow that there would be such a great disparity
in our blood alcohol levels.”  He argued that the accident was not
consistent with his driving habits and history and that he “would not
normally drive in an improper manner.”  He stated that if he “made a
mistake in judgment while driving that evening, it is not in line with my
past habits and history.”  He cited accomplishments of his military career
and that if he “made a mistake of judgment, it was one that I have never
made before through these many years of service.”

20.  A letter of recommendation, from the applicant’s commander dated
21 August 2002, was also in the applicant’s official military personnel
file.  The letter noted that “unquestionably, [the applicant] had a lapse
in judgment the afternoon of his accident.  This one time lapse of judgment
should not overshadow the service, sacrifice, and contributions this
soldier has made during his eighteen years of dedicated service to the U.S.
Army and the United States of America.”  The commander noted that the
applicant and his family would continue to suffer immensely from this
accident for the rest of their lives and that if the applicant loses all
medical benefits in addition to his permanent condition due to this single
lapse of judgment, it will add exponentially to this suffering.

21.  An 11 September 2002 legal review of the line of duty determination,
by the staff judge advocate at Fort Lewis, Washington, noted that he (the
attorney) agreed with the “Not in Line Duty – Due to Own Misconduct”
determination.  He stated that “the facts do not support any other
determination” and that the applicant’s:

      blood alcohol level was established by extremely reliable means
      through analysis at Madigan Army Medical Center.  His operation of his
      motorcycle as reflected in the accident report, including passing
      another vehicle under dangerous conditions, is consistent with
      impaired judgment due to alcohol consumption.

22.  The attorney acknowledged that while the applicant may have been an
exemplary soldier and that future benefits may be affected, it did not
“provide any grounds to modify the fingings….”

23.  On 19 September 2002 the applicant was notified, via correspondence
delivered to his brother, that he (the applicant) had the right to appeal
the findings.

24.  Although a copy of the appeal was not in documents available to the
Board, a 10 April 2003 memorandum from the Chief, Mortuary Affairs and
Casualty Support Division informed the commander at Fort Lewis that the
line of duty investigation complied with the regulatory legal requirements
and that no errors exist in the record that has a material or adverse
effect on the soldier’s rights.  It stated that “substantial evidence
supports the line of duty determination.”

25.  The memorandum stated that:

      The appeal submitted on behalf of [the applicant] established that the
      accident that resulted in his injuries occurred while he was
      attempting to pass a vehicle that was operated in an erratic manner.
      [The applicant] had attempted to pass the vehicle safely, but was
      unable to do so when the vehicle accelerated.  In that instance he
      decided to terminate the passing maneuver.  [The applicant] attempted
      another safe pass before the accident.  That second attempt clearly
      failed when the vehicle he was attempting to pass accelerated.
      Nevertheless, [the applicant] decided to execute the passing maneuver
      unsafely and he crashed.  The preponderance of the evidence indicates
      that the proximate cause of the accident was [the applicant’s]
      decision to execute the passing maneuver when it was clear that it was
      unsafe to do so.  [The applicant] made this decision while highly
      intoxicated, traveling at an excessive speed, and already in a “no
      pass” zone.”  The vehicle that was passed, while driven in an erratic
      manner, posed no danger to [the applicant] at any time.  His unsafe
      pass placed him in jeopardy and would not have been attempted by a
      sober reasonably prudent driver.  The finding that [the applicant]
      made that decision as the result of misconduct and willful negligence
      on his part is amply supported by the reliable blood alcohol content
      test results obtained in his case and the statement initially made to
      the investigating officer by [Mr. H].  [Mr. H] was driving with [the
      applicant] and easily avoided having a similar accident.

26.  Army Regulation 600-8-1, then in effect, stated that line of duty
determinations are essential for protecting the interest of both the
individual concerned and the United States Government, where service is
interrupted by injury, disease, or death.

27.  It states that Injury or disease proximately caused by the member’s
intentional misconduct or willful negligence is “not in LD – due to own
misconduct.”  Simple or ordinary negligence or carelessness, standing
alone, does not constitute misconduct.”  Line of duty findings or
determinations must be supported by substantial evidence and by a greater
weight or 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.

28.  The regulation states that if the subject matter of the investigation
involves any motor vehicle accident, several facts are important and should
be covered, if applicable, include; speed of vehicle(s) involved, road
factors, including natural obstructions to the driver’s vision, and road
signs, other vehicles, including any part played by them in creating the
conditions that resulted in the accident, traffic laws and regulations in
force, and the physical condition of the driver, including sobriety,
fatigue, and exhaustion, and the effect of their physical condition.

29.  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.

30.  Army Regulation 600-8-1 stated that willful negligence is a conscious
and intentional omission of the proper degree of care which a reasonably
careful person would exercise under the same or similar circumstances.
Willful negligence is a degree of carelessness greater than simple
negligence.  Willfulness may be expressed by direct evidence of a member’s
conduct.  Willfulness will be presumed when the member’s conduct
demonstrates a gross, reckless, wanton or deliberate disregard for the
foreseeable consequences of an act or failure to act.

31.  The regulation provides several rules which govern line of duty and
misconduct determination.  Those rules include:

      a.  injury or disease directly cause by the misconduct or willful
negligence is not in line of duty.  It is due to misconduct.

      b.  While the mere drinking of alcoholic beverages is not misconduct,
one who voluntarily becomes intoxicated is held too as high as a standard
of conduct as one who is sober.

      c.  injury caused by driving a vehicle when in an unfit condition,
and the member knew or should have known about it, is not in line of duty.
It is due to misconduct.

      d.  injury because of erratic or reckless conduct without regard for
personal safety or the safety of others, is not in the line of duty.  It is
due to misconduct.

DISCUSSION AND CONCLUSIONS:

1.  While counsel argues that the proximate cause of the applicant’s
accident was the erratic behavior of the woman in the “gold sedan” and that
because the line of duty investigating officer did not fully investigate
nor include the involvement of that vehicle in the accident that the line
of duty find was erroneous or unjust, is not supported by the preponderance
of the evidence.

2.  Statements rendered by witnesses to the accident during the initial
investigation indicated that several of them described the smell or sense
of alcohol on the applicant as they stood near him at the accident site.

3.  The evidence also shows that Mr. H, who was driving with the applicant,
stated in his initial interview as part of the line of duty investigation,
that there was “no doubt” in his mind that they were speeding and that the
applicant “should have waited to clear the curve to pass the vehicle he was
trying to pass.”  In statements to other witnesses he had related, in one
instance, that they had been drinking “but stopped about an hour ago prior
to getting on the road” and in another instance that he had “made victim
stop drinking 2 hrs ago.”

4.  The statement rendered by Mr. H 6 months after the accident, as part of
counsel’s investigation, is inconsistent with the information he provided
immediately following the accident and the statements provided by the
tavern employees, also 6 months after the date of the accident, are also
not sufficiently compelling to overcome information related during the
initial investigation.

5.  The evidence shows that the applicant was involved in a motor vehicle
accident on 16 June 2002, admitted to the hospital at 1745 hours, and that
a “Chemistry-plasma Toxicology” report, on blood drawn at 1905, showed a
test result of 265 MG/DL.
6.  The fact that the other motorcycle rider, Mr. H, did not have a high
breathalyzer result, or that he was permitted to continue riding his
motorcycle after the accident is not evidence that the applicant’s blood
alcohol test result was erroneous.  Rather, the fact that Mr. H was able to
make a decision to back off from passing the “gold sedan” during the second
attempt, and that in his initial statement indicated that in his opinion
the applicant should have waited to clear the curve to pass the vehicle he
was trying to pass” further supports the conclusion that the applicant’s
faculties were impaired due to intoxication at the time of the injury and
that he took an unnecessary risk that his partner, Mr. H, whose blood
alcohol level was not excessive, was able to recognize as an unsafe action
and hence avoided.

7.  The photograph and the hand drawn picture on the police report of the
accident site both show a solid line in the applicant’s travel lane which
shows that the applicant was in a no passing lane at least at the time he
attempted to pass the “gold sedan” the second time.  This evidence also
supports the conclusion that the applicant acted without the proper degree
of care, which a reasonable careful person would exercise under the same or
similar circumstance, as was evidence by the care exercised by his riding
partner.

8.  The actions by the woman in the “gold sedan” may have been erratic and
her actions at the accident scene may have been strange, but the evidence
shows that it was not her actions, but the applicant’s decision to continue
to pass her in an unsafe manner, when his physical and mental faculties
were impaired due to intoxication, which was the proximate result of the
accident.  Hence the finding of not in line of duty – due to misconduct,
was the appropriate finding.

9.  While the impact of such a finding is clearly unfortunate it does not
serve as a basis to change that finding.

10.  The evidence shows that the line of duty investigation was conducted
appropriately, not withstanding counsel’s argument to the contrary.  It was
processed to conclusion, with no indication that the applicant’s rights
were jeopardized.

11.  In order to justify correction of a military record the applicant must
show, 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.




BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF

________  ________  ________  GRANT PARTIAL RELIEF

________  ________  ________  GRANT FORMAL HEARING

__MM___  ___EP __  ___RR __  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

The evidence presented does not demonstrate the existence of a probable
error or injustice.  Therefore, the Board determined that the overall
merits of this case are insufficient as a basis for correction of the
records of the individual concerned.





                                  _____  Melvin Meyer______
                                            CHAIRPERSON



                                    INDEX

|CASE ID                 |AR2004100060                            |
|SUFFIX                  |                                        |
|RECON                   |YYYYMMDD                                |
|DATE BOARDED            |20041116                                |
|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.       |122.00                                  |
|2.                      |                                        |
|3.                      |                                        |
|4.                      |                                        |
|5.                      |                                        |
|6.                      |                                        |


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[pic]