RECORD OF PROCEEDINGS


	IN THE CASE OF:	  


	BOARD DATE:	  7 February 2008
	DOCKET NUMBER:  AR20070009060 


	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.


Ms. Catherine C. Mitrano

Director

Mr. Mohammed R. Elhaj

Analyst

The following members, a quorum, were present:


Mr. William D. Powers

Chairperson

Ms. Rose M. Lys

Member

Mr. Qawiy A. Sabree

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 correction of his DD Form 261 (Line of Duty and Misconduct Status) from "Not in Line of Duty-Due to Own Misconduct" to "In Line of Duty."

2.  The applicant states, in effect, that there is no proof he was driving without permission or that he was under the influence of alcohol when he had an accident while driving a military vehicle on 12 February 1972 in the Republic of Vietnam.  He argues that there is no copy of the blood alcohol test in the record.

3.  The applicant provided the following additional documentary evidence in support of his application:

	a.  DD Form 261 (Line of Duty and Misconduct Status), dated 24 March 1972;

	b.  DA Form 2323 (Witness Statement), dated 12 July 1972;

	c.  Headquarters, U.S. Army Drug Treatment Center Special Orders Number 6, dated 14 February 1972, appointing an Investigating Officer;

	d.  Military Police Report and Traffic Accident Map/Sketch, dated 13 February 1972;

	e.  DA Form 2173 (Statement of Medical Examination and Duty Status), dated 18 February 1972, 3 March 1972, and 24 March 1972;

	f.  Standard Form (SF) 88 (Report of Medical Examination), dated 16 March 1972;

	g.  DA Form 8-118 (Medical Board Proceedings), dated 16 March 1972;

	h.  DA Form 199 (Physical Evaluation Board Proceedings), dated 22 March 1972; and

	i.  Miscellaneous Department of the Army Messages (Joint Messageform) during May and June 1972, inquiring about the LOD determination.




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 that he enlisted in the Regular Army on 21 January 1970 for a period of 3 years.  He completed basic combat and advanced individual training and was awarded military occupational specialty (MOS) 91B (Medical Specialist).  The highest grade the applicant attained during his military service was specialist four/pay grade E-4.

3.  The applicant's record shows that he served in the Republic of Vietnam during the period 29 July 1970 through 12 March 1972.  He was assigned to the 221st Medical Detachment.

4.  On 13 February 1972 at Cam Rahn Bay, Republic of Vietnam, the applicant was the driver of an M-151 military vehicle (jeep).  He failed to control the vehicle and it left the roadway, overturning several times.  A passenger escaped with minor injuries; however, the applicant was severely injured.  He was transported to the 24th Evacuation Hospital in Long Binh, Republic of Vietnam.  Upon admission to the hospital, he was found to be unresponsive, decerebrate, and with bloody drainage from the right ear.  His blood-alcohol level, as shown on his SF 502 (Medical Evaluation Board) Narrative Summary, was determined to be "greater than 400mg%" or greater than 0.40g/100ml.  A blood-alcohol reading of 0.40+ is usually related to unconsciousness, coma and, possibly, death.  After initial treatment at the 24th Evacuation Hospital, the applicant was transferred to Letterman General Hospital, San Francisco, California.

5.  On 14 February 1972, Headquarters, U.S. Army Drug Treatment Center, Republic of Vietnam, published Special Orders Number 6, appointing an investigating officer to determine the circumstances surrounding the applicant's vehicle accident for determination of Line of Duty status.

6.  An initial DA Form 2173, dated 20 February 1972 and completed by the 24th Evacuation Hospital, Republic of Vietnam, showed the applicant suffered "cerebral contusion basilar skull fracture,” and that the applicant “was under the influence of alcohol.”  Additionally, Item 15 (Details of the Accident or History of Disease) showed the entry “car accident-high blood alcohol level-other details unknown.”  Item 32 (Injury is Considered to Have Been Incurred in Line of Duty) was marked “No” by the unit commander. 

7.  The DD Form 261, dated 26 February 1972, shows the applicant was injured on 13 February 1972 while driving a jeep in the Republic of Vietnam.  The investigation further revealed that the applicant removed the jeep from the motor pool without having dispatched it and that, at the time of the accident, he was not in possession of a valid driver’s license.  

8.  On 13 March 1972, a second DA Form 2173, was completed upon the applicant’s admittance to Letterman General Hospital, San Francisco, California, and showed the applicant suffered “basilar skull fractures and cerebral contusion”.  Item 15 of this form showed the entry “patient involved in vehicle accident, in the Republic of Vietnam, on 13 February 1972.”  Item 32 was marked “No” by the unit commander. 

9.  On 16 March 1972, a Medical Evaluation Board (MEB) convened at Letterman General Hospital, San Francisco, California, and found the patient to be medically unfit due to basal skull fracture, severe cerebral contusion, and post-traumatic encephalopathy.  He was also found mentally incompetent and did not have the capacity to understand the nature of and cooperate in Board proceedings.  The MEB recommended the applicant be referred to a Physical Evaluation Board (PEB).

10.  The DD Form 261, dated 21 February 1972, showed the investigating officer completed his investigation of the accident and determined that the accident was not in the line of duty and was due to the applicant's misconduct and that his intentional misconduct was the proximate cause.  The approving authority approved the findings on 21 March 1972 and the reviewing authority approved it on 24 March 1972.

11.  On 22 March 1972, a PEB convened and evaluated the applicant's medical condition as though a favorable line of duty determination had been made.  The PEB found the applicant's condition prevented him from performing his duties and determined that he was physically unfit.  The applicant was rated under the DVA Schedule for Rating Disabilities (VASRD) code 9304, complete chronic 
brain syndrome and granted a 100 percent disability rating; code 8513, complete and major paralysis of all radicular groups and granted a 90 percent disability rating; and code 8520, complete paralysis of the right sciatic nerve and granted an 80 percent disability rating.  The PEB also recommended the applicant be placed on the Temporary Disability Retirement List (TDRL) with reexamination in September 1973.

12.  On 18 January 1973, the applicant was honorably discharged from the Army in accordance with paragraph 5-8e (5) of Army Regulation 635-40 (Physical Evaluation for Retention, Retirement, or Separation), by reason of physical disability.  The DD Form 214 he was issued confirms he completed a total of 2 years, 11 months, and 28 days of creditable active military service and 6 days of lost time due to his incident of being absent without leave (AWOL).

13.  A witness statement written by the passenger in the jeep, dated 12 July 1972, states that he [passenger] was with the applicant when the accident occurred on 13 February 1972 and that the applicant was "under the influence of alcohol at the time of the accident and that they were not on official business."

14.  On 6 September 1973, the Department of Veterans Affairs (DVA) acted on the applicant's application for disability and held that the applicant's injuries were the result of his own willful misconduct and was not incurred in the line of duty.

15.  On 22 January 1980, the Army Physical Disability Agency reviewed the applicant's records and commented to the effect that the Agency found no errors in the processing of the applicant's line of duty determination.  

16.  On 26 March 1981, Headquarters, Department of the Army, Office of the Adjutant General commented that, after thoroughly reviewing the applicant's records, it was determined there was no new evidence to warrant a change in the previous determination of Not in the Line of Duty-Due to Own Misconduct; that the evidence presented clearly indicated the applicant was driving a military vehicle in an unfit condition to drive; and that the blood-alcohol test administered at the 24th Evacuation Hospital shows that he was definitely under the influence of alcohol and could not operate a vehicle.

17.  Army Regulation 600-10 (The Army Casualty System) established basic policies and outlines responsibilities and procedures for the efficient operation of the Army Casualty System.  It consolidates and incorporates casualty directives dealing with certain preparatory actions, reporting and notification, investigative requirements, statistical requirements, and the Army's role in providing 
assistance to the survivors of its members.  Chapter 5 of the version at the time defined the requirements and established the procedures for determining line of duty status of individual members of the Army.  It states, in pertinent part, that injury, disease, or death proximately caused by the Soldier's intentional misconduct or willful negligence is "Not in LOD — Due to Own Misconduct." Simple or ordinary negligence or carelessness, standing alone, does not constitute misconduct.  This paragraph goes on to say that LOD 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.

18.  Paragraph 5-18 of Army Regulation 600-10 covers the interpretation of basic factors, intentional misconduct or willful neglect.  It states that (1) misconduct for line of duty purposes must be intentional; however, intent may be expressed or implied.  Negligence (i.e., neglect) to constitute misconduct within the purview of this regulation must be willful; however, the willfulness likewise may be expressed or implied.  Negligence so gross as to evidence a reckless or wanton disregard to the consequences thereof should be regarded as willful.  Simple negligence is not misconduct for line of duty purposes.  (2) The presence of misconduct does not of itself fix misconduct as the producing cause of the injury or disease.  A finding that disease or injury resulted from misconduct is proper and sustainable only when it has been established by substantial evidence that misconduct was the moving or direct (proximate) cause thereof.  When misconduct is only a contributing cause, the disease or injury should not be determined to have resulted from misconduct.

19.  Paragraph 5-19 also states that a violation of military regulations, orders, or instructions, or of civil laws, in itself, and in the absence of a further showing of misconduct, should be deemed to establish no more than simple negligence.  As simple negligence does not constitute misconduct for line of duty purposes, injury or disease resulting from such a violation may not be held "not in line of duty" on that basis alone.  Additionally, the use of a Government vehicle or other Government conveyance without authority will not be sufficient in itself, without other evidence of misconduct, to sustain a finding that any injury incurred during such unauthorized use was incurred not in line of duty.  Such unauthorized use is considered on the same basis as a violation of orders, and further evidence of misconduct either in handling the vehicle or of intent not to return the vehicle is to be evaluated with other evidence in determining misconduct status.


20.  The following diseases and injuries, and the effects directly attributed thereto, should be considered as having resulted from misconduct:  (a)  Any disease or injury directly resulting from the intemperate use of intoxicating liquor or habit-forming drugs.  The term "intemperate use of intoxicating liquor" is defined as a use which is excessive under all circumstances of the case (considering, for example, the amount, type, and relative intoxicating effect of the liquor used; the period of time over which it was consumed; the physical condition of the user and whether he was a habitual user of intoxicants; whether the use of the liquor was such as to reflect discredit upon the military service, etc.).

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends that his DD Form 261 should be changed from "Not in Line of Duty-Due to Own Misconduct" to "In Line of Duty" due to the absence of a copy of the blood-alcohol test or proof that he was driving without a license. 

2.  The evidence of record shows that the applicant not only unlawfully acquired a jeep without dispatching it through the proper procedure at the motor pool, but also did not have a driver’s license as evidenced by the unit commander’s entry in Item 30 (Details of the Accident) of the three DA Forms 2173, dated 18 February 1972 (submitted by the applicant), and 3 March 1972 and 24 March 1972 (applicant’s records).  It appears that the applicant exercised poor judgment by driving a military vehicle without a driver’s license and without proper dispatch, thus endangering himself, his passenger, and pedestrians, as well as government, private, and public property.  

3.  Evidence of record clearly shows the applicant was highly intoxicated at the time of the accident as evidenced by the entry submitted by the military medical officials at the 24th Evacuation Hospital, on two DA Forms 2173, dated 18 February 1972 and 3 March 1972, and confirmed by the witness statement of his passenger who stated that the applicant “was under the influence of alcohol at the time of the accident.”  Not only did the applicant bring discredit to the U.S. Army in a combat zone, his gross negligence and reckless or wanton disregard to the consequences of his actions were clearly willful and the moving, direct, and proximate cause of this event. 

4.  In view of the foregoing evidence, it is clear that the applicant was driving a military vehicle while in an unfit condition to drive, without proper dispatch, without a license, and without any regard to his personal safety or that of others.  


The blood-alcohol level shows that he was without doubt under the influence of alcohol and could not possibly operate a vehicle safely.  Therefore, the applicant is not entitled to the relief requested. 


BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

__wdp___  __rml___  __qas___  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.



						William D. Powers
______________________
          CHAIRPERSON




INDEX

CASE ID
AR
SUFFIX

RECON
YYYYMMDD
DATE BOARDED
YYYYMMDD
TYPE OF DISCHARGE
(HD, GD, UOTHC, UD, BCD, DD, UNCHAR)
DATE OF DISCHARGE
YYYYMMDD
DISCHARGE AUTHORITY
AR . . . . .  
DISCHARGE REASON

BOARD DECISION
(NC, GRANT , DENY, GRANT PLUS)
REVIEW AUTHORITY

ISSUES         1.

2.

3.

4.

5.

6.