IN THE CASE OF:	  

		BOARD DATE:	  
		DOCKET NUMBER:  AR20080005816 


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 the findings of his Not in Line of Duty - Due to Own Misconduct determination be overturned to that of In Line of Duty and removal of the resulting Letter of Reprimand from his official military personnel file (OMPF). 

2.  The applicant states, in effect, that on 9 July 1992 he received a Not in Line of Duty Report of Investigation for an auto accident that happened on 2 May 1992[sic] and as a result was issued a Letter of Reprimand from his chain of command.  He also states that he was given a dry reckless driving charge for that automobile accident.  He further states that Fort Ord, California, was in post closure at the time of his court appearance and many in his chain of command had began to PCS (permanent change of station) and the appeal could not be opened at the time.  

3.  In support of his application, the applicant provides copies of his DA Form 2173 (Statement of Medical Examination and Duty Status), an Announcement of Line of Duty Investigation Officer Appointment memorandum, two Line of Duty Determination memoranda, a DA Form 1594 (Daily Staff Journal of Duty Officer's Log, Record of Interview/Phone Conversation forms, a DA Form 2823 (Sworn Statement), a DD Form 261 (Report of Investigation Line of Duty and Misconduct Status), his Letter of Reprimand, and his Disqualification of Good Conduct Medal memorandum.



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 military records show he enlisted in the Regular Army, in pay grade E-1, on 2 July 1986.  He completed training and was awarded military occupational specialty 67V, Observation/Scout Helicopter Repairer.  He was promoted to pay grade E-4 on 1 September 1988. 

3.  A DA Form 2173, dated 28 May 1992, shows the applicant was admitted to the Salinas Valley Memorial Hospital, Salinas, California, on 3 May 1992, with head injuries sustained in a motor vehicle accident on the same day.  The form noted that the accident was alcohol related and that the seat belt was not used.

4.  On 2 June 1992, a Line of Duty Investigation Officer was appointed to determine whether any misconduct or any negligence on the part of the applicant was the cause of the injuries he sustained in a motor vehicle accident on 3 May 1992.  

5.  A DA Form 2823, dated 30 June 1992, contains the applicant's statement pertaining to the events prior to the accident.

6.  On 1 July 1992, the investigating officer advised the applicant that based upon the evidence he collected, he believed the applicant's injuries were incurred Not in Line of Duty – Due to Own Misconduct.  The memorandum also advised the applicant of his rights before the final determination was made.  The applicant acknowledged receipt of the notification on the same day.

7.  A DA Form 1594, with four Record of Interview/Phone Conversation forms, for the period from 5 June 1991 to 9 July 1992, prepared by the investigating officer, recorded the dates and time he spoke with the applicant, several other service members, and a medical doctor from Salinas Valley Memorial Hospital.

8.  A DD Form 261, dated 9 July 1992, states the remarks and findings pertaining to the applicant's accident.  On 10 July 1992, the approving authority approved the findings of Not in Line of Duty – Due to Own Misconduct.

9.  On 9 July 1992, the investigating officer advised the applicant that his final determination was that his injuries were incurred Not in Line of Duty – Due to Own Misconduct.  The memorandum also advised the applicant of his right of appeal.

10.  In a Memorandum for Record, dated 9 July 1991, the investigation officer stated that the applicant was currently on convalescent leave and was not present when the final determination was made.  He also stated that he had called the applicant and advised him of the final determination and his right to appeal.  The applicant elected to submit an appeal and stated he would do so upon his return from convalescent leave, approximately on 6 August 1992.

11.  The applicant's records do not contain any documents relating to an appeal and he did not provide any evidence of an appeal with his application.

12.  On 16 October 1992, the applicant was issued a Letter of Reprimand for driving under the influence.  The Letter of Reprimand stated that on 3 May 1992, the California Highway Patrol reported that the applicant was found unconscious with head injuries at the scene of a one-car accident.  It was assessed that after weaving in and out of traffic at a high rate of speed, he lost control of his vehicle which left the roadway and became airborne, turning over twice, and ejecting the applicant from his vehicle.  The applicant was cited with driving under the influence of alcohol.  His blood alcohol content was .08 percent.  The reprimand also stated that anyone who drove or was in physical control of a motor vehicle and had a blood alcohol content of .08 percent or more violated California state law.  

13.  On 4 November 1992, the applicant acknowledged receipt of the Letter of Reprimand and elected not to submit matters in his own behalf.

14.  On 4 November 1993, the applicant's unit commander disqualified him for the award of the Good Conduct Medal for the period July 1989 to July 1992, based on the alcohol related incident.

15.  On 5 January 1993, the applicant's commander, a major general, directed the Letter of Reprimand be filed permanently in the applicant's OMPF.  

16.  On 13 April 1994, the applicant's request for voluntary separation through the Fiscal Year 1994 Enlisted Voluntary Early Release Program was approved.  
He was honorably released from active duty, in pay grade E-4, on 5 July 1994 and transferred to the United States Army Reserve (USAR) Control Group (Reinforcement).

17.  The applicant was promoted in the USAR to pay grade E-6 on 1 March 2000 and reenlisted for an indefinite number of years on 9 February 2006.  He is currently serving in an active status.

18.  In an advisory opinion, dated 10 June 2008, the Chief, Operations Line of Duty, AHRC, Alexandria, Virginia, stated that in 1994, the applicant was involved in a one-car accident and was seriously injured with a skull fracture and facial fractures.  A Blood Alcohol Test was performed at the hospital and he was determined to be under the influence of alcohol with a .08 alcohol level.  The investigation was done in an accurate and timely manner in accordance with Army Regulation 600-8-1, and the evidence collected determined the applicant to be Not in Line of Duty – Due to his Own Misconduct.  Speeding and alcohol were the cause of his accident and the injuries which he sustained.  

19.  The AHRC official also stated that they had administratively reviewed and reevaluated the Line of Duty Investigation pertaining to the applicant with the information presented.  She recommended the determination should stand as is, "Not in Line of Duty – Due to Own Misconduct."  She also stated that the Operations Line of Duty office does not have the authority to make decisions or remove permanent Letters of Reprimand, as this decision was made by the General Court-Martial Convening Authority.  The applicant did not submit any rebuttal at the time the reprimand was given.

20.  The advisory opinion was forwarded to the applicant for acknowledgement and/or rebuttal on 10 June 2008.  He did not respond.

21.  Army Regulation 600-37, in pertinent part, provides the policy for authorized placement of unfavorable information in individual official personnel files.  It provides that unfavorable information will not be filed in an official personnel file unless the individual has been given the chance to review the documentation that serves as the basis for the proposed filing and make a written statement, if desired, that rebuts the unfavorable information.  The referral to the recipient will include reference to the intended filing of the letter and include documents that serve as the basis for the letter.

22.  Army Regulation 600-37, also provides that a Letter of Reprimand, regardless of issuing authority, may be filed in the OMPF only upon the order of a general officer.  Statements and other evidence will be reviewed and considered by the officer authorized to direct filing.  Letters (memorandums) of reprimand, 
admonition, or censure may be the subject of an appeal for transfer to the restricted section.  Such documents may be appealed on the basis of proof that their intended purpose has been served and that their transfer would be in the best interest of the Army.  The DA Suitability Evaluation Board (DASEB) has been established as the appeal and petition authority for unfavorable information entered in the OMPF under this regulation.  

23.  Army Regulation 600-37, further specifies that once an official document has been properly filed 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.  

24.  Army Regulation 600-8-104 (Military Personnel Information Management/
Records) prescribes the policies governing the OMPF, the Military Personnel Records Jacket, the Career Management Individual File, and the Army Personnel Qualification Record.  It also prescribes the composition of the OMPF.  Paragraph 2-4 of this regulation states that once a document is placed in the OMPF it becomes a permanent part of that file and will not be removed from that file or moved to another part of the file unless directed by the proper authorities listed in the regulation. 

DISCUSSION AND CONCLUSIONS:

1.  In view of the circumstances in this case, the applicant is not entitled to overturning or changing the findings of his Not in Line of Duty - Due to Own Misconduct investigation to In the Line of Duty and removal of the resulting Letter of Reprimand from his OMPF.  He has not shown error, injustice, or inequity for the relief he now requests.  

2.  The applicant was injured in a motor vehicle accident on 3 May 1992.  Based on an investigation it was determined that the accident and those injuries incurred was Not in Line of Duty – Due to Own Misconduct.  The applicant was provided the opportunity to appeal and advised that he would appeal upon his return from convalescent leave.  However, there is no evidence, neither of record or provided by the applicant, that he submitted an appeal.  He was subsequently issued a Letter of Reprimand and again provided the opportunity to rebut/appeal his reprimand and there is no evidence he did so.  

3.  A review of the applicant's OMPF revealed that the Not in Line of Duty – Due to Own Misconduct determination and the Letter of Reprimand are filed in the restricted portion of his OMPF.  The applicant has not provided clear and 
convincing evidence that the documents were untrue or unjust, in whole, or in part, to support his request.  The applicant has also provided no evidence to show that they were improper or inequitable or should now be overturned and removed.   His contentions are not supported by the evidence.  

4.  In view of the foregoing, there is no basis for granting the applicant’s requests.

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)                                         AR20080005816



3


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1

ABCMR Record of Proceedings (cont)                                         AR20080005816


2


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1