IN THE CASE OF:	

	BOARD DATE:	
	DOCKET NUMBER:  AR20070008503 


THE BOARD CONSIDERED THE FOLLOWING EVIDENCE:

1.  Application for correction of military records (with supporting documents provided, if any).

2.  Military Personnel Records and advisory opinions (if any).


THE APPLICANT'S REQUEST, STATEMENT, AND EVIDENCE:

1.  The applicant requests, in effect, that all references that show or indicate he was under the influence of alcohol be removed from his records.

2.  The applicant states, in effect, that the records state he was under the influence of alcohol from a test that read 0.13, over two hours after he was discovered following an accident.  All the evidence proves he was innocent or, in effect, that there was sufficient reasonable doubt.  He states that Ada County, the county in which the accident took place, dismissed the entire case due to this.

3.  The applicant adds that he was injected with 80 mg of succinycholine and also with other medications before the alcohol test over two hours after he was discovered.

4.  The applicant states, in effect, he has served his country with honor.  He has two honorable discharges with good conduct and this entire affair is a slanderous lie upon his name.

5.  On 4 June 2007, the applicant advised his Member of Congress (MOC) he had filed an action with this agency to remove an issue from his record and requested the MOC's assistance in resolving the issue.  On 2 July 2007, the MOC, in a letter addressed to the Congressional Liaison requested appropriate consideration and action be taken in behalf of his constituent and that a report be submitted to him so that he could respond to his constituent appropriately.

6.  In support of his application, the applicant provides 52 sheets of paper upon which are copies of:  DD Forms 214, police reports, sworn statements, medical documents and laboratory results, documents downloaded from the internet related to the issue, and legal documents.

COUNSEL'S REQUEST, STATEMENT AND EVIDENCE:

1.  Counsel requests, in effect, that an official document be placed in his service record acknowledging that the applicant was not under the influence of alcohol at the time of his service-ending accident.

2.  Counsel states, in effect, the former member was never convicted of civilian charges that were directly related to his discharge and alleged being under the influence of alcohol.  Counsel adds that the applicant’s record is tainted with false allegations against his character – allegations which were thrown out in civil court.  It is time, counsel states, to either expunge these false statements from the former member’s record or provide a clarifying statement in his file stating that there is no veracity to these false claims.  The former member served his country in two services and earned two honorable discharges.  Counsel states that the applicant has nothing to gain materially by correcting his records; only restoring his honor.

3.  Counsel provided no additional documents aside from a statement of support for the applicant’s request.

CONSIDERATION OF EVIDENCE:

1.  Title 10, U.S. Code, section 1552(b), provides that applications for correction of military records must be filed within 3 years after discovery of the alleged error or injustice.  This provision of law also allows the Army Board for Correction of Military Records (ABCMR) to excuse an applicant’s failure to timely file within the 3-year statute of limitations if the ABCMR determines it would be in the interest of justice to do so.  While it appears the applicant did not file within the time frame provided in the statute of limitations, the ABCMR has elected to conduct a substantive review of this case and, only to the extent relief, if any, is granted, has determined it is in the interest of justice to excuse the applicant’s failure to timely file.  In all other respects, there are insufficient bases to waive the statute of limitations for timely filing.




2.  The applicant’s record shows he was honorably discharged from the Idaho Army National Guard on 21 December 2000 under the provisions of National 
Guard Regulation 600-200, paragraph 8-27, for Medical, Physical or Mental Condition Retention.  The applicant had joined the Idaho Army National Guard on 10 August 1998, after having served in the Marine Corps for the period 4 June 1986 through 13 April 1990.

3.  The evidence shows that the applicant had been ordered to active duty for training on 12 June 1999.  He was scheduled to complete his training and to return to his unit on 26 June 1999.

4.  The evidence shows that on 23 June 1999 the applicant was involved in a motorcycle accident in an undeveloped locality in Ada County, Idaho.  The applicant was not the registered owner of the motorcycle which was involved in the accident.  The Idaho Vehicle Collision Report which was completed and filed shows the accident took place at an unknown hour, he was found by passing motorists at approximately 0100 hours [Sworn Statement – Jervik] and police were not dispatched until 0153 hours.  The light conditions were dark, weather conditions were clear, and the road surface was dry.  According to the Idaho Vehicle Collision Report, there were contributing circumstances – alcohol impairment.

5.  Following transportation of the applicant to Saint Alphonsus Regional Medical Center, the officer who investigated the accident went to the hospital to check on his condition.  Upon observation of his condition, he detected an odor of alcohol on his facial area.  He also smelled a strange odor of an alcoholic beverage on his clothing.  Based on the odor of alcohol and the evidence at the scene, the officer requested a blood alcohol draw be taken from him to determine his blood alcohol concentration.  The applicant was administered both an alcohol and a drug test.

6.  The applicant provided the results of the blood alcohol test on the blood that was collected at 0315 hours, on 23 June 1999.  The report which was concluded at 0322 hours reads, "Alcohol, Plasma / 0.13 [0.00 – 0.10] g/dL / Stat."  The figures contained within parenthesis are determined to be within normal limits.  A level of 0.13 g/dL was above the legal limit in the State of Idaho.

7.  On 23 June 1999 the Deputy Chief of Staff for Personnel, Headquarters, Idaho Army National Guard, Boise, Idaho, appointed a field grade officer to conduct a line of duty investigation pertinent to the applicant's accident in accordance with the then in effect Army Regulation 600-8-1.

8.  A preliminary DA Form 2173, Statement of Medical Examination and Duty Status, was completed by the applicant's unit commander, on 25 June 1999.  In this report it was indicated by the attending physician the applicant was under the 
influence of alcohol at the time of accident, injury was likely to result in a claim against the Government, and the injury was not incurred in the line of duty.  He added a statement to the accident report indicating the accident occurred at late night, in civilian clothes, and the applicant had been intoxicated.  He continued by adding that injuries had been sustained as a result of a motorcycle crash with no witnesses, with no helmet, and with a trajectory of 75 feet.  He indicated a blood alcohol test was made and the number of milligrams of alcohol per 100 milliliters of blood was measured at 0.13.

9.  The applicant's unit commander, in his preliminary finding, indicated the injuries were considered to have been incurred in the line of duty; however, he check-marked Item 31 of the form indicating that a formal line of duty investigation was required.

10.  On 25 June 1999 the commander of the applicant's unit ordered that a line of duty investigation be completed.  All documents related to this line of duty investigation are not available; however, sufficient documents are available which allow the Board to consider the applicant's request.

11.  On 9 July 1999, a Staff Judge Advocate, Idaho National Guard, conducted a legal review of the completed line of duty investigation.  The legal review shows the investigating officer had received a legal pre-brief prior to initiating the investigation.  The overwhelming presumption at the start of the line of duty investigation was that the Soldier would be found "in line of duty" unless evidence that his status or conduct rose to a sufficient level to rebut this presumption.

12.  In a memorandum, Subject:  Legal Review, Line of Duty Investigation [the applicant], dated 9 July 1999, the Staff Judge Advocate, Idaho National Guard, in his analysis made three statements:  a.)  the investigating officer's findings were based on credible evidence that the accident was proximately caused by and the direct result of the applicant's misconduct and/or negligence due to over-consumption of alcohol; b.) the investigating officer made a specific finding that the applicant had consumed sufficient alcohol to render a BAC (blood alcohol content) level of 0.13 g/dL, based on a sample taken at 0315 hours, nearly two hours after the applicant was discovered by the road; and c.) the investigating officer concluded that the applicant should be found "not Line of Duty – Due to Own Misconduct" because he, all evidence considered, must have been intoxicated at the time he was operating the motorcycle.

13.  The Staff Judge Advocate, Idaho National Guard, in his review concluded the investigation was consistent with the standards of Army Regulation 15-6 and Army Regulation 600-8-1 that was then in effect, all technical formalities appeared to have been observed, and there being no legal objections and the investigation being legally sufficient, the line of duty investigation could be used as a basis for actions deemed appropriate by proper Guard authorities.

14.  The applicant provided a pre-trial memorandum (Case Number M9907513) for the District Court of the Fourth Judicial District of the State of Idaho, Ada County, Magistrate Division, dated 14 January 2005, which shows that the State moved to dismiss the charges.  The Board staff noted that the Case Number on this memorandum does not correspond with the Case Number entered on the Idaho Vehicle Collision Report.  The case number shown on the Idaho Vehicle Collision Report is 17389.

15.  In a letter addressed to the Board, dated 28 May 2007, the applicant states that five years after the motorcycle accident, he was being accused of being under the influence to have caused the accident.  The accident, he states, was listed as alcohol-related before the test was administered as can be seen by the police report.  This, he summarizes is what caused him to receive a verdict from the military of not being in the line of duty – due to his own misconduct.  He adds that he doesn't want anyone to be fooled into thinking he was intoxicated while operating any vehicle, but he does want to thank the medical staff for using the medications on his body that caused the faulty alcohol result.

16.  In a clarifying statement [labeled #1] prepared by the applicant, he states, in effect, the officer who investigated the accident ordered an alcohol test to be done on site.  He states the officer stated in his police report that it was a DUI incident even though he had no solid proof at this time.  The test was never mentioned again and there is no record of what happened to this particular test.  The alcohol test that was administered at the hospital was administered at 0322 hours, over two hours after the accident discovery.  The alcohol test was not administered at 0315 hours as it says in the Army investigation.

17.  In a clarifying statement prepared by the applicant [labeled #2], about whether he was wearing a helmet or not and whether the charges had been dismissed, he states, in effect, the Army wanted evidence that proved the charge had been dismissed.  He sent this evidence in twice; but, after having received the evidence, the Army then said that in their eyes he was not in the line of duty.

18.  After the case was dismissed, the applicant alleges to have talked to the Sheriff of Cassia County about the alcohol test.  The Sheriff said that medications can and usually do effect alcohol tests.  He added that law enforcement authorities don't prepare written statements on these kinds of issues but he did say if anyone called him on this, he would say the same exact statement.

19.  In the processing of this case, an advisory opinion was requested from the Commander, US Army Human Resources Command, Operations/Line of Duty Investigations Section.

20.  The Chief, Operations/Line of Duty Investigations Section, provided an advisory opinion, on 8 November 2007.  In the advisory opinion, the Chief, Operations/Line of Duty Investigations Section, stated that from review of all documents available, a determination was made by his command that the applicant had been found, “Not in the Line of Duty – Due to his Own Misconduct,” because he was allegedly intoxicated at the time of his accident.  The accident report indicated the applicant smelled of alcohol on his face and clothing.  The police officer at the scene requested a blood alcohol test.  The toxicology results showed that the blood alcohol level was 0.13 g/dL nearly two hours after he had been discovered on the road.  First aid and medical intervention at the hospital with succinycholine was used to paralyze the orotracheal route and for better intubation of the trachea.

21.  The applicant claims that the first aid and medical intervention of succinycholine raised his blood alcohol level.  The Chief, Operations/Line of Duty Investigations Section, coordinated this issue with the Division of Forensic Toxicology Post-Mortem and Human Performance Testing Laboratory of the Armed Forces Institute of Pathology.  In his response, the toxicologist stated that succinycholine does not raise or change the blood alcohol level (emphasis added).

22.  After a review of the evidence and in consultation with expert toxicologists, the Chief, Operations/Line of Duty Investigations Section, affirmed the findings of “Not in the Line of Duty – Due to Own Misconduct.”

23.  The advisory opinion was submitted to the applicant for his review and possible comment and/or rebuttal on 19 November 2007.  The applicant did not respond.

24.  In addition to the advisory opinion, the Chief, Operations/Line of Duty Investigations Section, provided some information and guidance with regards to this case which cannot be overlooked.  The official noted that:  a.)  the adverse 

determination had not been forwarded to their headquarters for review; b.)  a line of duty determination is an administrative decision; it is not a criminal verdict, and it determines if a service member was injured in the line of duty; c,)  a ruling by a judge or jury does not influence the line of duty investigation (emphasis added);
d.)  a line of duty investigation considers all facts and evidence presented by the investigating officer; and e.)  an adverse line of duty determination also has no influence on the type of discharge a service member is awarded.  It does and will influence the type of benefits the service member may or may not be eligible for.

25.  Army Regulation 600-37 sets forth policies and procedures to (a)  authorize placement of unfavorable information about Army members in their individual official personnel files; (b)  to ensure that unfavorable information that is unsubstantiated, irrelevant, untimely, or incomplete is not filed in their individual official personnel files; and (c)  to ensure that the best interests of both the Army and the Soldiers are served by authorizing unfavorable information to be placed in and, when appropriate, removed from their official personnel files. 

26.  Army Regulation 600-37, paragraph 7-2, states that once a document has been directed for filing in the OMPF, it is presumed to be administratively correct and to have been filed pursuant to an objective decision by competent authority.  Thereafter, the burden of proof rests with the individual concerned to provide evidence of a clear and convincing nature that the document is untrue or unjust, in whole or in part, thereby warranting its alteration or removal from the OMPF.

27.  Army Regulation 600-8-104 prescribes the policies and mandated operating tasks for the Military Personnel (MILPER) Information Management/Records Program of the Military Personnel System.  This regulation provides principles of support, standards of service, policies, tasks, rules, and steps governing all work required in the field to support MILPER Information Management/Records.  Table 2-1 specifies that the results of a line of duty investigation will be filed in the restricted portion of a Soldier's OMPF.

28.  Army Regulation 600-8-104, paragraph 2-4, specifies that once a document is placed in a Soldier's OMPF, the document becomes a permanent part of that file.  The document will not be removed from the OMPF or moved to another part of the OMPF unless directed by one of the following agencies:  the Army Board for Correction of Military Records (ABCMR), or one of the other agencies listed in the referenced paragraph.

DISCUSSION AND CONCLUSIONS:

1.  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.

2.  The applicant's contention that the succinycholine he was injected with, and other medications administered before the alcohol test was given over two hours after he was discovered, raised his blood alcohol level were found not to have merit by toxicologists of the Armed Forces Institute of Pathology.

3.  Based on the evidence in this case, it was determined that the investigating officer's findings were based on credible evidence that the accident was proximately caused by and the direct result of the applicant's misconduct and/or negligence due to over-consumption of alcohol; a specific finding was made that the applicant had consumed sufficient alcohol to render a BAC level of 0.13 g/dL, based on a blood sample taken nearly two hours after the applicant was discovered by the road; and on the investigating officer's conclusions that the applicant should be found "Not Line of Duty – Due to Own Misconduct" because all evidence indicates he must have been intoxicated at the time he was operating the motorcycle.

4.  The applicant has provided no evidence of a clear and convincing nature that the results of the line of duty determination are untrue or unjust, in whole or in part, thereby warranting its alteration or removal from his records.  He is therefore not entitled to removal from his records the results of the Line of Duty Determination which indicates he was under the influence of alcohol at the time of his motorcycle accident, as he requested.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

___x____  ___x____  ___x____  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.



      __________x_____________
      	CHAIRPERSON
      
I certify that herein is recorded the true and complete record of the proceedings of the Army Board for Correction of Military Records in this case.
ABCMR Record of Proceedings (cont)                                         AR20070008503



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ABCMR Record of Proceedings (cont)                                         AR20070008503



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