RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:        7 December 2006
      DOCKET NUMBER:  AR20050013874


      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             |
|     |Mr. John J. Wendland, Jr.         |     |Analyst              |

      The following members, a quorum, were present:

|     |Mr. Richard T. Dunbar             |     |Chairperson          |
|     |Mr. Dale E. DeBruler              |     |Member               |
|     |Mr. Larry W. Racster              |     |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:

1.  The applicant requests, in effect, removal of the "Not in Line of Duty
- Due to Own Misconduct" finding from the Line of Duty (LOD) investigation,
dated
20 June 2002, and replacement with a finding of "In Line of Duty."

2.  The applicant states, in effect, that the LOD investigation (LODI)
conducted to investigate the vehicle accident he was involved in on 26
April 2002 was conducted while he was a patient in the hospital and unable
to participate in the process because he was in a coma or unconscious and
heavily medicated.  He also states, in effect, the LODI was conducted in an
effort to meet regulatory deadlines rather than to obtain a complete and
accurate report.  He further states, in effect, it was only after he was
discharged from the hospital that he received the benefit of counsel and
this was during the appellate process.  The applicant adds, in effect, that
the appellate review included an unjust after-the-fact determination that
he was at fault in the accident due to his being tired.  The applicant
states, in effect, that this was never an issue in the initial LODI, cannot
equate to misconduct, and was manufactured by the appellate authority to
support the initial LOD finding after he had successfully countered and
refuted the allegation of excess alcohol.  He adds that had he been advised
of the charge of "being too tired to drive" he could have easily rebutted
the allegation, but was not given the chance.  He adds that the memorandum
denying his appeal does not provide the actual decision or identify the
individual who actually reached the decision.  The applicant also states
that "[a] VA administrative decision determined the accident was not the
result of "willful misconduct" and granted the accident "in line of duty".
It is thus readily apparent that the VA correctly discounted the flawed
evidence related to alcohol and gave no credence to the unjust allegation
of lack of sleep.  The VA determined all of [his] injuries to have been
service connected."  He states, in effect, that after several evaluations
by the VA he was determined to be 100 percent disabled due to service
connected disabilities.  He adds, in effect, that he has incurred
significant financial hardship as a result of mistakes made by the Army
with respect to payments made to him following his discharge date and has
been unsuccessful in recouping the taxes that were withheld on the
erroneous payments.  He concludes by stating, in effect, that the Army
perpetuated an injustice with its prejudicial and unconscionable appellate
action.

3.  The applicant provides a copy of Headquarters, U.S. Total Army
Personnel Command, Alexandria, Virginia, memorandum, dated 10 April 2003,
subject:  Line of Duty Determination on SGT [Applicant's Name and Social
Security Number]; T_______ S_____, LLP Attorneys at Law, letter, dated 2
December 2002, subject:  Sgt [Applicant's Name] Appeal of Line of Duty
Determination, with Exhibits A - I; and copies of Department of Veterans
Affairs (VA), VA Regional Office, Des Moines, Iowa, Rating Decisions
(pertaining to the applicant), dated 20 July 2004, 8 November 2004, 22
January 2005, and 28 January 2005.

CONSIDERATION OF EVIDENCE:

1.  The applicant's military service records show that prior to the period
of service under review, the applicant was appointed a commissioned officer
on 7 June 1996, served as an infantry officer in the Regular Army, and
attained the grade of rank of first lieutenant/pay grade O-2.

2.  The applicant's military service records contain a copy of
Headquarters, U.S. Army Infantry Center (USAIC), Fort Benning, Georgia,
memorandum, dated
15 January 1999, subject:  Administrative Reprimand, along with supporting
documents and endorsements.  This documentation shows, in pertinent part,
that the applicant received an administrative letter of reprimand from the
major general in command of the USAIC (Fort Benning) for being apprehended
on
16 October 1998 for driving under the influence of alcohol as determined by
a properly conducted test.  This documentation is filed in the performance
section of the applicant's Official Military Personnel File (OMPF).

3.  The applicant's military service records contain a copy of
Headquarters, USAIC, Fort Benning, Georgia, memorandum, dated 23 February
1999, subject:  Administrative Reprimand, along with supporting documents
and endorsements. This documentation shows, in pertinent part, that the
applicant received an administrative letter of reprimand from the major
general in command of the USAIC (Fort Benning) for being apprehended on 21
February 1999 for driving under the influence of alcohol as determined by a
properly conducted test.  This documentation is filed in the performance
section of the applicant's OMPF.

4.  On 27 August 1999, the applicant was discharged under the provisions of
Army Regulation 600-8-24 (Officer Transfers and Discharges), paragraphs 4-
2b and 4-24a(1).  The reason for his discharge was "Unacceptable Conduct."

5.  On 13 November 2001, the applicant enlisted in the Virginia Army
National Guard (VaARNG), participated in Operation Noble Eagle, and had
attained the grade of rank of sergeant/pay grade E-5 when he was honorably
discharged on 15 November 2002.

6.  On 26 April 2002, the applicant was involved in a single-car vehicle
accident.  During the early morning hours on that date, in the vicinity of
23500 Hull Street Road in Chesterfield County, Virginia, the applicant lost
control of his vehicle.  The Police Accident Report shows that the
applicant was cited by civilian police for reckless driving.  This document
also shows that the applicant's vehicle ran off the roadway and he
sustained multiple injuries when the vehicle overturned and struck a tree.
This document also shows that the applicant had his seatbelt on and was
trapped upside down in the car.  He was admitted to a civilian hospital and
later transferred to Walter Reed Army Medical Center, Washington, District
of Columbia.  As a result of the accident, the applicant sustained
permanent physical disabilities and was hospitalized for nearly six months.

7.  The applicant's military service records do not contain a copy of the
LODI, dated 20 June 2002.  However, in the processing of this case, a copy
of the
DD Form 261 (Report of Investigation - Line of Duty and Misconduct Status)
with exhibits was obtained from Headquarters, National Guard Bureau, Army
National Guard Readiness Center, Arlington, Virginia.  The DD Form 261
shows that a LODI was initiated to determine whether the applicant's single-
car vehicle accident occurred in the line of duty.  The LODI contains a
copy of a DA Form 2173 (Statement of Medical Examination and Duty Status),
dated 5 June 2002. This document shows, in pertinent part, in Section I (To
Be Completed by Attending Physician or Hospital Patient Administrator),
Item 11 (Medical Opinion) that on 26 April 2002, the attending physician
indicated that the applicant was not under the influence of alcohol or
drugs.  This document also shows in Item 14 (No. of MG Alcohol/100 ML
Blood) the entry "102 mg/100 ml blood."  The LODI also contains a statement
by the Investigating Officer (IO), dated 17 June 2002, which indicates the
IO did not inform the applicant of his right to not make any statements
relating to the cause of the motor vehicle accident because the applicant
was incapable of speaking and was being administered medication.  This
document further shows that the IO did inform the applicant's father of the
applicant's right.  The LODI contains a copy of Code of Virginia, Section
18.2-266 (Driving motor vehicle, engine, etc. while intoxicated, etc.).
This document shows, in pertinent part, that "[i]t shall be unlawful for
any person to drive or operate any motor vehicle, engine or train (i) while
such person has a blood alcohol concentration of 0.08 percent or more by
weight by volume or 0.08 grams or more per 210 liters of breath as
indicated by a chemical test administered as provided in this article, (ii)
while such person is under the influence of alcohol, …"

8.  The DD Form 261 shows that on 20 June 2002, the IO concluded the LODI
indicating that the applicant's injuries were "not in line of duty - due to
own misconduct."  The LODI underwent both a legal and an administrative
review and, on 16 August 2002, the IO notified the applicant of his
findings and advised the applicant of his right to submit a statement
and/or other evidence on his behalf within 10 days, prior to the LODI being
forwarded to the approving authority.  The LODI is absent any documentation
indicating that the applicant responded to the IO's letter.  The LODI then
underwent an additional legal review and, on 20 September 2002, the Chief,
Personnel Division, National Guard Bureau, approved the findings of the
LODI and the applicant was advised of his right to appeal.

9.  On 4 October 2002, the applicant indicated that he would appeal the LOD
determination, but required an additional 30 days to prepare the appeal,
and subsequently submitted his appeal on 2 December 2002.  In his appeal
the applicant stated the LOD determination should be reversed or the LODI
reopened because, in effect, he had no opportunity for any meaningful
participation in the LODI and there was not a thorough investigation into
the accident.  He further maintained that substantial evidence supports the
conclusion that alcohol was not a factor in the accident.

10.  On 10 April 2003, the Chief, Mortuary Affairs and Casualty Support
Division, on behalf of the Commanding General, U.S. Total Army Personnel
Command (Alexandria, Virginia), notified the Commander, VaARNG, to advise
the applicant that after thorough administrative and legal reviews of the
LODI and LODI appeal, the LODI was found to comply with the regulatory
legal requirements, no errors exist in the record that has a material or
adverse effect on the Soldier's rights, and that substantial evidence
supports the line of duty determination finding of "Not in Line of Duty -
Due to Own Misconduct."

11.  In support of his application, the applicant provides copies of
documents related to his LODI appeal and VA rating decisions.  The
documentation pertaining to the applicant's appeal of the LODI, in
pertinent part, seeks to rebut the evidence contained in the LODI that
alcohol was a contributing factor to the applicant's single-car vehicle
accident and his subsequent injuries.  The four VA rating decisions
pertaining to the applicant show, in pertinent part, that a VA
administrative decision determined the accident was not the result of
"willful misconduct" and granted the accident "in the line of duty".  These
four VA rating decision documents also reveal, in pertinent part, that the
LODI conducted by the Army (i.e., that pertained to the applicant's single-
car vehicle accident and subsequent injuries he suffered on 26 April 2002)
was not part of the evidence considered by the VA in arriving at its
decisions and determinations.

12.  Army Regulation 600-8-1 (Army Casualty and Memorial Affairs and Line
of Duty Investigations), dated 18 September 1986, in effect at the time,
prescribed the policies and procedures for investigating the circumstances
of the disease, injury, or death of a Soldier and provides standards and
considerations used in determining LOD status.  It also provides the
reasons for conducting LODI, which include extension of enlistment,
longevity and retirement multiplier, forfeiture of pay, disability
retirement and severance pay, medical and dental care for Soldiers on duty
other than active duty for a period of more than 30 days, and benefits
administered by the Department of Veterans Affairs.  This document further
provides, in pertinent part, that an adverse LOD determination is an
administrative determination and not a punitive or judicial action.
Disciplinary and other administrative actions, if warranted, shall be taken
independently of any LOD determination.  A favorable determination does not
preclude separate disciplinary or administrative actions and that a LOD
determination is not binding on the issue of guilt or innocence of the
Soldier in a separate disciplinary action, the issue of pecuniary liability
in a report of survey, or any other administrative determination.

13.  Paragraph 39-1 (General) of the LODI regulation provides, in pertinent
part, that "[l]ine of duty determinations are essential for protecting the
interest of both the individual concerned and the U.S. Government, where
service is interrupted by injury, disease, or death.  A person who becomes
a casualty because of his or her intentional misconduct or willful
negligence can never be said to be injured, diseased, or deceased in the
line of duty."

14.  Paragraph 39-5 (Standards applicable to LOD determinations) of the
LODI regulation provides, in pertinent part, "[i]njury or disease
proximately caused by the member's intentional misconduct or willful
negligence is "Not in L[O]D - due to own misconduct"."

15.  Paragraph 40-3 (Evidence collection) provides, in pertinent part, that
[i]f information concerning the incident is sought from the member, the
member will be advised that he or she does not have to make any statement
that is against his or her interest that relates to the origin, incurrence,
or aggravation of any injury or disease he/she suffered."

16.  Paragraph 41-10 (Intoxication and drug abuse) of the LODI regulation
provides, in pertinent part, "[a]n 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."

17.  Appendix B (Rules Governing Line of Duty and Misconduct
Determinations) of the LODI regulation states that "[i]n every formal
investigation, the purpose is to find out whether there is evidence of
intentional misconduct or willful negligence that is substantial and of a
greater weight than the presumption of "in line of duty."  To arrive at
such decisions, several basic rules can be applied to various situations.
(The specific rules of misconduct are set forth in Appendix B.)

18.  Rule 1 of Appendix B provides that "[i]njury, disease, or death
directly caused by the individual's misconduct or willful negligence is not
in line of duty.  It is due to misconduct.  This is a general rule and must
be considered in every case where there might have been misconduct or
willful negligence.  Generally, two issues must be resolved when a Soldier
is injured, becomes ill, contracts a disease, or dies - (1) whether the
injury, disease, or death was incurred or aggravated in the line of duty;
and (2) whether it was due to misconduct.  Normally, the two issues are
resolved at the same time under the same facts and same rules."

19.  Rule 3 of Appendix B provides that "[i]njury, disease, or death 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 applies to the
effect of the drug on the Soldier's conduct, as well as to the physical
effect on the Soldier's body.  Any wrongfully drug-induced actions that
cause injury, disease, or death are misconduct.  That the Soldier may have
had a pre-existing physical condition that caused increased susceptibility
to the effects of the drug does not excuse such misconduct."

20.  Rule 4 of Appendix B provides, in pertinent part, that "[i]njury
disease, or death that results in incapacitation because of the abuse of
intoxicating liquor is not in line of duty.  It is due to misconduct.  The
principles in Rule 3 apply here.  While merely drinking alcoholic beverages
is not misconduct, one who voluntarily becomes intoxicated is held to the
same standards of conduct as one who is sober.  Intoxication does not
excuse misconduct."

21.  Rule 8 of Appendix B provides that "[i]njury or death caused by
driving a vehicle when in an unfit condition, and the [Soldier] knew or
should have known about it, it is not in line of duty.  It is due to
misconduct.  A [Soldier] involved in an automobile accident caused by his
having fallen asleep while driving is not guilty of willful negligence
solely because he fell asleep.  The test is whether a person, under the
same circumstances, would undertake the trip without falling asleep while
driving.  Unfitness to drive may have been caused by voluntary intoxication
or use of drugs."

22.  The Glossary of the LODI regulation states that "[a]ny wrongful or
improper conduct which is intended or deliberate is intentional misconduct.
 Intent may be expressed by direct evidence of a member's statements or may
be implied by direct or indirect evidence of the member's conduct.
Misconduct does not necessarily involve committing an offense under the
Uniform Code of Military Justice (UCMJ) or local law."

23.  The Glossary of the LODI regulation states that a "[p]reponderance of
evidence is evidence that tends to prove one side of a disputed fact by
outweighing the evidence to the contrary (that is, more than 50 percent).
Preponderance does not necessarily mean a greater number of witnesses or a
greater mass of evidence; rather preponderance means a superiority of
evidence on one side or the other of a disputed fact.  It is a term that
refers to the quality, rather than the quantity, of the evidence."

24.  The Glossary of the LODI regulation states that "[p]resumption is an
inference of the truth of a proposition or fact, reached through a process
of reasoning and based on the existence of other facts.  Matters that are
presumed need no proof to support them, but may be rebutted by evidence to
the contrary."

25.  The Glossary of the LODI regulation states that "[a] proximate cause
is a cause which, in a natural and continuous sequence, unbroken by a new
cause, produces an injury, illness, disease, or death and without which the
injury, illness, disease, or death would not have occurred.  A proximate
cause is a primary moving or predominating cause and is the connecting
relationship between the intentional misconduct or willful negligence of
the member and the injury, illness, disease, or death that results as a
natural, direct and immediate consequence that supports a "not line of duty
- due to own misconduct" determination."

26.  The Glossary of the LODI regulation defines simple negligence as
"[t]he failure to exercise that degree of care which a similarly situated
person of ordinary prudence usually takes in the same or similar
circumstance.  An injury or disease caused solely be (sic) simple
negligence is in line of duty unless it existed prior to entry into the
Service or occurred during a period of AWOL (except when the Soldier was
mentally unsound at the inception of the unauthorized absence)."

27.  The Glossary of the LODI regulation states that "[a] conscious and
intentional omission of the proper degree of care that a reasonably careful
person would exercise under the same or similar circumstances in (sic)
willful negligence.  Willful negligence is a degree of carelessness greater
than simple negligence.  Willfulness may be expressed by direct evidence of
a member's conduct and 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.  Willful negligence
does not necessarily involve committing an offense under the UCMJ or local
law."

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends, in effect, that the "Not In Line of Duty - Due
to Own Misconduct" finding should be removed from the Line of Duty
investigation, dated 20 June 2002, and replaced with a finding of "In Line
of Duty" because he did not participate in the process, the LODI was not
complete and accurate, that he had successfully refuted the allegation of
excess alcohol and his being tired due to a lack of sleep was manufactured
by the appellate authority to support the initial LOD finding, and that the
VA determined all of his injuries to have been service connected.  He also
contends, in effect, that the Government should refund the taxes that were
withheld from erroneous payments that were made to him by the Army.

2.  The evidence of record shows that immediately following the automobile
accident that occurred on 26 April 2002, the applicant was incapable of
making a statement on his behalf.  The evidence of record also shows that
approximately six weeks after the automobile accident, while the applicant
was still incapacitated, the IO contacted the applicant's father and
requested the release of records associated with the accident, but the
applicant's father denied the IO's request.  Consequently, the IO conducted
the LODI based on the evidence he was able to collect from available
reports and witnesses.  Then, on 16 August 2002, the IO advised the
applicant that he was not notified of the LOD process earlier because the
applicant's medical condition precluded the applicant from making a clear
and informed decision at the time.  At this time, the IO also informed the
applicant of his right to make a statement or submit evidence on his
behalf.  However, there is no evidence of record that shows the applicant
made a statement or submitted evidence on his behalf in response to the
IO's letter, dated 16 August 2002.  The evidence of record also shows that
the LODI was reviewed administratively for completeness and legally for
compliance with regulatory requirements; and that the Chief, Personnel
Division, National Guard Bureau, subsequently approved the LODI findings of
"Not in Line of Duty - Due to Own Misconduct" on 20 September 2002.

3.  On 2 December 2002, the applicant's appeal was submitted by his
counsel.  The applicant's appeal focuses on the lack of verification of the
applicant's blood alcohol content.  The evidence of record shows that a
toxicology report from the Medical College of Virginia (MCV) Hospital
showed a blood alcohol level of .102. The evidence of record also shows
that the VaARNG State Surgeon offered a sworn statement, dated 13 June
2002, based on his review of the working file at that time.  (Note:  This
statement is identified in the LODI as Exhibit "J2", but shows that the
exhibit's identifier was changed and later marked Exhibit "G2").
Regardless, in his statement, the VaARNG State Surgeon stated, in pertinent
part, "[i]t appears that the [applicant] does show evidence that alcohol
was involved in his accident."

4.  The applicant contends that he successfully countered and refuted the
allegation of excess alcohol in his appeal of the LODI and offers as
evidence the fact that the driver first arriving at the scene of the
accident stated that he did not smell any alcohol while he was near and
speaking with the applicant and that the emergency medical technician did
not include any references to alcohol in his report.  In addition, the
applicant asserts the blood sample would not be admissible in a court of
law and could not serve as the basis for a criminal charge because: (1) no
probable cause justified taking the sample; (2) it does not appear the
blood sample was transmitted to the Division of Forensic Service in
accordance with state law; (3) the blood sample was never tested in
accordance with the requirements of Virginia law; and (4) the sole evidence
of the blood test results is contained with the toxicology report which in
turn constitutes inadmissible hearsay."

5.  The applicant's contention that the initial blood alcohol level
determination was not verified with a second test sample and would be
inadmissible in a court of law is not applicable in the conduct of a LODI
and determination.  While the applicant's contention may be true, the
evidence of record shows that the LODI determination is not governed by the
standards of local law, rather the LODI must be conducted and completed in
accordance with the Army regulatory guidance and that a LOD determination
is not binding on the issue of guilt or innocence of the Soldier in any
separate disciplinary action.

6.  The applicant contends that the appellate review included an unjust
after-the-fact determination that he was at fault in the accident due to
his being tired; however, he provides insufficient evidence in support of
this claim.  The evidence of record shows that the LODI contains a sworn
statement submitted by the applicant's roommate and (then) commander.  This
document shows, in pertinent part, that this individual observed the
applicant return to the apartment in the evening with a six pack of beer
and a bottle of bourbon and that later (early the next morning) that he had
a discussion with the applicant regarding the applicant's intention to
drive his girlfriend home.  This individual states that "[a]cting as a
friend and roommate, not as a commander, I told him that it was a stupid
idea and that he should go back to his room and get some sleep."  This
individual further adds that "I based that decision because I was concerned
about his lack of sleep."  In addition, both legal reviews of the LODI
addressed this issue and the evidence contained in the LODI.

7.  The evidence of record further shows that the applicant consumed at
least three alcoholic beverages prior to deciding to drive his girlfriend
home and, based on a blood test in the MCV hospital emergency room, the
applicant had a heightened blood alcohol level (i.e. .102).  As a result,
there is a presumption that the applicant was in an unfit condition to
drive (i.e. Rule 8 of Appendix B, Army Regulation 600-8-1) and that his
willful negligence was a proximate cause that produced his injuries.
Moreover, the LODI regulation states that "[a] conscious and intentional
omission of the proper degree of care that a reasonably careful person
would exercise under the same or similar circumstances is willful
negligence.  The evidence of record shows that the applicant's roommate and
(then) commander advised him not to drive that evening.  Regardless of the
reason(s) (i.e., consumption of alcohol and/or lack of adequate sleep), the
applicant's roommate and (then) commander (a presumably reasonably careful
person) clearly believed that the applicant was in an unfit condition to
drive and advised the applicant not to drive that morning.  Regardless of
this advice, the applicant demonstrated willful negligence and a disregard
for the foreseeable consequences when he decided to drive his girlfriend
home and, as a result, was involved in a single-car vehicle accident.
Therefore, in view of the foregoing, the evidence of record supports a "not
in line of duty - due to own misconduct" determination.

8.  The evidence of record also shows that the applicant's LODI was
accomplished in compliance with applicable regulations, then in effect,
with no indication of procedural errors which would have jeopardized his
rights.  In this regard, the evidence of record further shows that both the
LOD approving and appellate authorities determined that the LODI complies
with the Army's regulatory legal requirements.

9.  There is a presumption of administrative regularity in the conduct of
governmental affairs.  This presumption can be applied to any review unless
there is substantial creditable evidence to rebut the presumption.  In this
instance, the "presumption of regularity" is based upon Army Regulation 600-
8-1 (Army Casualty and Memorial Affairs and Line of Duty Investigations)
which provides that the correct conclusion based on the facts must be
shown.  The evidence of record supports the conclusion that the LODI
findings and determination are correct.

10.  The evidence of record shows that a determination of service
connection and/or rating decision rendered by the VA does not mandate a
similar determination for the LODI by the Army.  The VA, operating under
its own policies and regulations, may make a determination that a medical
condition warrants compensation.  In fact, the evidence of record shows
that the VA did not consider the Army's approved LODI findings and
determination concerning the applicant's vehicle accident when it arrived
at its decision.  In this regard, it would be inappropriate for the Army to
change the applicant's LOD determination based on the VA's rating decision,
since the VA did not have the benefit of the evidence contained in the
applicant's LODI when it rendered its service-connected rating decision.

11.  The LODI investigating officer's findings must be supported by
substantial evidence and by a greater weight of evidence than supports any
different conclusion.  The evidence must show that it is more likely than
not that the investigating officer's findings accurately document how the
disease, injury, or death occurred.  This standard of proof is based on a
"preponderance of evidence," and is less demanding than the "beyond a
reasonable doubt" standard required in criminal proceedings.  There is no
indication of procedural errors by the investigating officer which would
tend to have substantially jeopardized the applicant's rights.  Therefore,
the Board concurs with the findings and conclusions of both the LOD
approving authority and the LOD appellate authority and concludes that the
applicant's LODI was accomplished in compliance with applicable
regulations.

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

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF

________  ________  ________  GRANT PARTIAL RELIEF

________  ________  ________  GRANT FORMAL HEARING

____RTD_  ___DED_  __LWR__  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

The Board determined that 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.




                                       __Richard T. Dunbar____
                                            CHAIRPERSON


                                    INDEX

|CASE ID                 |AR20050013874                           |
|SUFFIX                  |                                        |
|RECON                   |YYYYMMDD                                |
|DATE BOARDED            |20061207                                |
|TYPE OF DISCHARGE       |(HD, GD, UOTHC, UD, BCD, DD, UNCHAR)    |
|DATE OF DISCHARGE       |20021115                                |
|DISCHARGE AUTHORITY     |AR . . . . .                            |
|DISCHARGE REASON        |                                        |
|BOARD DECISION          |DENY                                    |
|REVIEW AUTHORITY        |Mr. Chun                                |
|ISSUES         1.       |122.0100.0000                           |
|2.                      |                                        |
|3.                      |                                        |
|4.                      |                                        |
|5.                      |                                        |
|6.                      |                                        |


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