IN THE CASE OF:
BOARD DATE: 6 January 2009
DOCKET NUMBER: AR20080016083
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 line of duty determination related to her late husband's accident be changed from "not in line of duty (LOD) due to own misconduct" to "in line of duty."
2. The applicant states, in effect, the former service member (FSM) had spent two tours in Iraq and was willing to go a third time. He was suffering from depression and was unable to sleep. He had begun to drink to deal with the images from his tours in Iraq. She asks that his one mistake, for which he paid with his life, not be used to make his wife and children suffer.
3. The applicant provides copies of her military identification card and the FSM's death certificate.
CONSIDERATION OF EVIDENCE:
1. The FSM enlisted on 15 October 1992 and attained the rank of sergeant first class. He served continuously until his death on 7 June 2006.
2. His Noncommissioned Officer Evaluation Reports show he was continuously rated in the top block by both his rater and senior rater. He was repeatedly listed as among the best and recommended for advancement ahead of his peers.
3. The accident report shows that, on 7 June 2006, the FSM was drinking beer with friends at the Lodge Apartments, Columbus, Georgia. He and another person left their location on motorcycles and were involved in an accident at
approximately 2210 hours. Investigation reports show the FSM was attempting to pass a truck on the left as it was making a left turn and impacted the left front side of the truck. He was thrown 58 feet from the point of impact. The FSM was transported to the hospital where he was pronounced dead at 2252 hours.
4. An LOD investigation was undertaken. A Blood Alcohol Report pertaining to the FSM resulted in a Blood Alcohol Content (BAC) of 0.178 grams per milliliter (g/ml). The legal BAC limit in Georgia was then and still is 0.08 g/ml, indicating that the FSM's BAC was twice the legal limit.
5. Based on eyewitness statements showing the applicant had been drinking prior to the accident and his high level reading on the BAC, the LOD investigation determined that the amount of alcohol in the FSM's system impaired his judgment and slowed his reflexes, resulting in the motor vehicle accident that killed him. His death was determined to be due to intentional misconduct and as such, not in the line of duty.
6. The available records do not contain any medical records showing a diagnosis of or treatment for depression.
7. Army Regulation 60084 (Line of Duty Policy, Procedures, and Investigations) prescribes policies and procedures for investigating the circumstances of disease, injury, or death of a Soldier. It provides standards and considerations used in determining an LOD status. In pertinent part, it states that injury, 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. 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.
DISCUSSION AND CONCLUSIONS:
1. The applicant states the FSM was suffering from depression and was unable to sleep. He had begun to drink to deal with the images from his tours in Iraq. She asks that his one mistake not be used to make his wife and children suffer.
2. While drinking in and of itself is not misconduct, the operation of motor vehicles when in an intoxicated state is. The FSM had not only been drinking, he had consumed enough alcohol to register a BAC of twice the legal limit before attempting to drive his motorcycle.
3. It is regrettable that a Soldier of the FSM's reported caliber made a fatal error in judgment. However, failing evidence that the FSM was suffering from a mental or emotional defect so severe that he could not tell right from wrong and adhere to the right, the issue of depression does not demonstrate an injustice in the LOD finding.
4. 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.
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) AR20080016083
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ABCMR Record of Proceedings (cont) AR20080016083
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