IN THE CASE OF:	  

		BOARD DATE:	  1 March 2011

		DOCKET NUMBER:  AR20100009636 


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 the misconduct determination be overturned and the accident that cost her husband, a former service member (FSM), his death be shown to have been in the line of duty (LOD).

2.  The applicant states that there are significant errors or omissions by both the police and the officer doing the LOD.  She contends:

	a.  the determinations that the FSM was driving while intoxicated (DWI) and without a helmet are flawed;

	b.  the FSM would have been wearing his helmet and it was probably removed by the person who started first aid efforts before the emergency medical service (EMS) personnel and police arrived.  This is why they reported that he was not wearing a helmet.  The actual helmet was severely damaged and the chin strap was torn;

	c.  she was told by hospital personnel that the FSM would not have survived the accident if he had not been wearing a helmet;

	d.  the toxicology report finding differs from the reported blood alcohol content (BAC) level on the LOD and the method of determining the alcohol level did not meet the Texas legal standards for a finding of DWI;

	e.  a formal LOD was not required and she did not receive a copy of the LOD until over a month after it was completed and approved.  
	f.  the LOD investigating officer did not follow proper procedures in completing the LOD determination and even after errors were noted in the legal sufficiency review, they were not corrected;

	g.  the FSM's unit commander had found that the accident was in the line of duty; therefore, a formal investigation was not required;

	h.  the description of the accident on the accident report is unlikely to have occurred in the manner described.  The FSM weighed 282 pounds and his cycle over 800 pounds, the combined weight and the size of the motorcycle make it improbable that the FSM could have completed a 180 degree turn and accelerated to a speed that would have killed him; and

	i.  any smell of alcohol at the scene was from broken bottles of Scotch in the FSM's motorcycle bags. 

3.  The applicant provides copies of the FSM's accident report, hospital admission and discharge reports, death certificate, autopsy report, a toxicological lab result, LOD report and related documents, a Texas Department of Motor Vehicles driving record, a photo of the accident scene, and six service-related documents.

COUNSEL'S REQUEST, STATEMENT AND EVIDENCE:

1.  Counsel requests that the FSM's records be corrected to show he was not DWI and his death was in the line of duty.

2.  Counsel states the FSM was killed in a motor vehicle accident and the LOD determination erroneously and unjustly concluded the FSM was DWI without proper supporting evidence.  The process of the LOD is so flawed that it renders any finding of not in the line of duty impossible to make.

3.  Counsel provides no additional supporting documentation.

CONSIDERATION OF EVIDENCE:

1.  The FSM entered active duty in the enlisted ranks in July 1974.  He was commissioned a U. S. Army Reserve Special Forces officer in July 1983.  The FSM was serving in a troop program unit when called to active duty in August 2005.  He was promoted to lieutenant colonel in January 2006.

2.  On 15 September 2006, at 2020 hours, the FSM was involved in an accident where his motorcycle collided with a Jeep in Von Ormy, Texas.  The Texas Peace Officer's Crash Report states notification of the crash was made at 2030 and the time of arrived at scene was 2043.  The report, in the Disposition of Killed or Injured section, states the FSM was taken to University Hospital by Air Life.  However, the same line item states If Ambulance Used, show "Time Notified 2030" and Time Arrived at Scene 2043."

3.  The accident report provides the following:

	a.  the narrative description of the accident in the information block states:  "Unit 1 [the FSM] was southbound on northbound access Rd.  Unit 1 passed the on-ramp onto IH 35 S, then suddenly made a U-turn and began to travel northbound on the Access Rd.  Unit 2 was southbound on the same Access Rd. and had yielded at the on-ramp, as Unit 2 continued southbound Unit 1 suddenly came out of his U-turn and attempted to get into the on-ramp and struck Unit 2 head on.  Driver of Unit 1 had the odor of alcohol beverages coming from his breath.  Driver Unit 1 airlifted to hospital."  

	b.  under the section "Factors And Condition Listed Are The Investigators Opinion" list for Unit 1 numbers 33 and 45 for the FSM.  Number 33 is "failed to yield right-a-way."  Number 45 is "had been (third word unreadable)."  There are no contributing factors listed for Unit 2, the driver of the jeep.  Under the section alcohol specimen taken, the code entered for the FSM is 5 (refused) and for the driver of the jeep 4 (none).  For drug sample taken, both are shown as a "4" (Refused). 

	c.  the road and conditions were described as a dry, flat, straight blacktop highway with no traffic control.  It was dark with no road lighting and the weather was clear; 

	d.  a statement report completed by Officer J____ P____ states when he arrived on the scene the FSM was laying flat on his back directly west of his motorcycle with the EMS from the Jarrett Volunteer Fire Department attending the FSM; 

	e.  many entries on report or the drawing of the accident scene are difficult to read due to small print size and poor copy quality.  The location of the helmet is noted as between the point of impact and the location that the motorcycle came to rest, south of the point that the FSM received his onsite care; 

	f.  no witnesses to the accident, other than the driver of the jeep, are recorded on either the official accident report or the statements from officers on the scene;

	g.  a statement from an officer who arrived to assist the original officer reports that when he arrived the FSM was lying on his back in the center of the street directly west of his motorcycle.  He was being attended to by members of the volunteer fire department.  The driver of the jeep was standing next to his vehicle in the median and stated that he was driving south when the FSM turned right from Rife Road onto the access road of IH 35 in front of him.  He tried to avoid the FSM but it was to late to take any sort of evasive action.

4.  A newspaper photo of the accident scene shows the EMS equipment bags south and west of the motorcycle with a snap closure motorcycle helmet slightly further south and west of the equipment.

5.  The FSM was airlifted to the University Health System Trauma Surgery unit, San Antonio, Texas.  The available hospital records provide the following:

	a.  the Admissions note, time/dated 16 September 2006 0058, states the FSM a "51 year old Caucasian male status post (s/p) motorcycle collision (MCC), helmet dislodged with traumatic brain injury; found down pulseless in the field by EMS.  CPR was initiated in the field for 10 minutes and a pulse was regained."  

	b.  on arrival at the hospital the FSM's pupils were nonresponsive and other neurological response tests were negative or weak.  CT scans of his head showed a 6.5 millimeter midline shift to the left of basal cistern [the wide cavity that extends across the space between the two temporal lobes], hemorrhages through out his paranasal sinuses, and a left basilar skull fracture. 

	c.  his initial arterial blood gas (ABG) for ETOH (alcohol) is reported as 110 mg/dL [.110 percent].  

	d.  after being stabilized, the FSM was transferred to the intensive care unit where his condition deteriorated and he died at 1722 hours on 23 September 2006.  

	e.  the discharge summary note, time/dated 23 September 2006 1754, reports basically the same history except that it states the FSM was found without his helmet.  The cause of death is shown as a fatal brain injury.

6.  The toxicology final report, time/dated 15 September 2006 2119 [completed approximately one hour after the accident], shows an alcohol serum level of 102 mg/dL [.102 percent] and negative findings for any other drugs.

7.  The Bexar County Medical Examiner's Office report, dated 24 September 2006, shows contusions around both eyes, on the lateral mid-right and left sides of the chest, left thigh, posterior left knee, lateral aspect of the left foot/ankle; a laceration to the left side of the back of the head; and abrasions to the posterior left hand and anterior right leg near the knee.  The cause of death is listed as complications of multiple injuries.

8.  Colonel W ____ L____ was appointed the LOD IO on 18 October 2006.  

9.  LOD investigation was completed on 28 December 2006 with a determination that the accident was not line of duty and due to the FSM's own misconduct.  The IO states the FSM was operating a motorcycle with BAC of 110 which was verified by San Antonio's Medical examiners office as .11 percent.  The legal limit for a blood alcohol level is 0.08 percent.  A telephonic interview with Investigator C____, Bexar County Sherriff’s Office, Investigator C stated an eyewitness would say the FSM was not wearing his helmet in accordance with Department of Defense Instruction Number 6055.4, paragraph E3.2.7.1.1 and Army Regulation 385-55, Appendix B, paragraph B-3d.  Copies of the telephone interviews are not of record.  

10.  A DA Form 2173 (Statement of Medical Examination and Duty Status), dated 28 December 2006, states the FSM was under the influence of alcohol with a 1.10 mg alcohol per 100 ml of blood [.110 percent].  Item 31 (Formal Line of Duty Investigation Required) is marked no.  Item 32 (Injury Is Considered To Have Been Incurred In Line Of Duty (not applicable on deaths)) is marked yes.

11.  The 11 January 2007 Line of Duty legal review states the LOD investigation is legally sufficient subject to comments listed.  The DA Form 2173 was to be returned to the unit commander for completion of five items and review of seven other items.  The form was also to be returned to the IO to complete six items and to properly restructure the packet in accordance with regulations.  [These actions appear to have been done at least in part as the available copy of record includes the directed entries.]  The LOD was approved on 5 February 2007.

12.  The applicant indicates she received a copy of the LOD on 6 March 2007. 

13.  An advisory opinion was obtained from the Army Human Resources Command (HRC).  HRC opined that the applicant merely pointed out presumptive mistakes and faults by the Bexar County Sheriff's Department, the LOD IO, and medical personnel and that the investigation would not support prosecution for DWI under Texas law.  However, even accepting the applicant is correct that the investigation has flaws the fact that the FSM's BAC was at least .102 percent is presumptive proof of intoxication and impairment under both Texas law and Federal regulations.  It was recommended that the not in the line of duty due to misconduct finding stand.  
14.  A copy of the advisory opinion was forwarded to the applicant.  Her counsel rebutted the HRC opinion stating that the reported "oversights" in the LOD are in fact violations of due process and the level and nature of errors was too low to even support an administrative finding of misconduct or DWI.  Counsel contends that both the LOD and the advisory opinion use incomplete and/or contradictory information or citations of regulations.  Counsel states that the provisions of Army Regulation 600-8-4 (Line of Duty Policy, Procedures, and Investigations) were not followed in that the IO did not address and show the FSM's physical or mental faculties were impaired due to intoxication at the time of the injury, to what extent he was impaired, or if the impairment was the proximate cause of the injury.  Counsel contends that the advisory opinion's assertion that the FSM had a .102 BAC at the time of the accident cannot be supported.  The medical report an hour after the accident shows the BAC was higher than allowed by Texas but is not proof of his BAC at the time of the accident.

15.  A review of the accident location, utilizing Google Maps, shows the following:

	a.  there is a Yield sign for traffic southbound on the access road at what appears to be the proper distance from the I 35 on-ramp;

	b.  to execute a southbound turn onto the I 35 north ramp requires approximately a 160 degree turn to the right;

	c.  to execute a northbound turn onto I 35 north requires approximately a 30 degree left turn crossing the southbound lane of the access road;

	d.  there is a solid double yellow center for the entire length of the access road from at least the local Post Office to the south of the intersection to the point where the access road goes under I 35 north of the accident site; 

	e.  there is a stop sign at the intersection of Rife Road and the access road; and 

	f.  to access the north bound on-ramp, from Rife Road a driver has to turn right and almost immediately turn left across south bound access road line of traffic, which is required to yield.

16.  Department of Defense Instruction Number 6055.4, paragraph E3.2.7.1.1 states Soldiers are to wear helmets certified to meet Department of Transportation standards.  Helmets are to be properly fastened under the chin while operating motorcycles.


17.  Army Regulation 600-8-4 prescribes policies and procedures for investigating the circumstances of disease, injury, or death of a Soldier.  It provides standards and considerations used in determining LOD status.  Paragraph 2-6b states that an injury, disease, or death is presumed to be in the LOD unless refuted by substantial evidence contained in the investigation.  The regulations provides the following:

	a.  In determining whether a veteran or his or her survivors or family members are eligible for certain benefits, the Department of Veterans Affairs makes its own determinations with respect to LD.  These determinations rest upon the evidence available.  Usually this consists of those facts that have been officially recorded and are on file within DA, including reports and LD investigations submitted in accordance with the provisions of this regulation.  Statutes governing these benefits generally require that disabling injury or death be service connected, which means that the disability was incurred or aggravated in LOD (Title 38 U.S Code, section 101(38 USC 101)).  Investigations can be conducted informally by the chain of command where no misconduct or negligence is indicated, or formally where an IO is appointed to conduct an investigation into suspected misconduct or negligence.  

	b.  A formal LOD investigation must be conducted in the following circumstances: injury, disease, death, or medical condition that occurs under strange or doubtful circumstances; is apparently due to misconduct or willful negligence; or for an injury or death involving the abuse of alcohol or other drugs. 

	c.  LOD 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 their intentional misconduct or willful negligence can never be said to be injured, diseased, or deceased in LOD.  Such a person stands to lose substantial benefits as a consequence of his or her actions; therefore, it is critical that the decision to categorize injury, disease, or death as not in LOD only be made after following the deliberate, ordered procedures described in this regulation. 

	d.  LOD investigations are conducted essentially to arrive at a determination of whether misconduct or negligence was involved in the disease, injury, or death and, if so, to what degree.

	e.  Paragraph 4-10b states an injury incurred as the "proximate result" of prior and specific voluntary intoxication is incurred as the result of misconduct.  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 soldier's physical or mental faculties were impaired due to intoxication at the time of the injury, the extent of that impairment, and if the impairment was a proximate cause of the injury or death. A contributing cause is deemed proximate if it plays a material role in the victim’s injury.

	f.  Items to be considered by the IO include but are not limited to both direct and indirect evidence; statements from any witnesses, military of police accident reports, 

	g.  The IO must be free from bias or prejudice and must make a fair and impartial investigation.  Promptness is crucial as delays often result in failure to secure important information.

	h.  If an adverse determination is contemplated the Soldier is to be notified in writing and provided a copy of the investigation and evidence.  The Soldier is to be given the opportunity to reply and rebut the finding and evidence.  

	i.  survivors of Soldiers who die on active duty have up to six years to appeal an LOD determination.

	j.  Appendix B, Rule 3 states: any injury, 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.  

	k.  Appendix B, Rule 4 states: any 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.  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.  

	l.  Appendix B, Rule 8 states: any injury or death caused by a Soldier driving a vehicle when in an unfit condition of which the Soldier was, or should have been aware, is not in line of duty.  It is due to misconduct.  A Soldier involved in an automobile accident caused by falling asleep while driving is not guilty of willful negligence solely because of falling asleep.  The test is whether a reasonable 

person, under the same circumstances, would have undertaken the trip without expecting to fall asleep while driving.  Unfitness to drive may have been caused by voluntary intoxication or use of drugs. 

	m.  The regulation defines the terms preponderance of evidence, proximate cause, intentional misconduct, simple negligence, willful negligence as follows:

		(1)  Preponderance of evidence:  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.

		(2)  Proximate cause:  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 in line of duty-due to own misconduct” determination.

		(3)  Intentional misconduct:  Any 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.

		(4)  Simple negligence:  The failure to exercise that degree of care which a similarly situated person of ordinary prudence usually takes in the same or similar circumstances, taking into consideration the age, maturity of judgment, experience, education, and training of the soldier.  An injury, disease, illness, or death caused solely by simple negligence is in line of duty unless it existed prior to entry into the Service or occurred during a period of AWOL. 

		(5)  Willful negligence:  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.  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 states that there are significant errors or omissions by both the police and the officer doing the LOD.  The applicant and her counsel basically contend that proper procedures were not followed by the police or the LOD IO.  With these errors, a finding that the FSM was intoxicated to the point of meeting DWI standards and the finding of misconduct cannot be made.  Further, the alcohol level reported on the toxicology report (as .102) was not done using a method that met the Texas legal standards for a finding of DWI.  Additionally, the LOD processing was so flawed as to deny the applicant her due process rights.

2.  Notwithstanding the entry on the DA Form 2173, a formal LOD was required to be done in accordance with regulation for cases of alcohol-related accidents, injuries, or deaths.  Many of the problems with this case start with the fact that the investigation was not started until a month after the accident and three weeks after the FMS had died

3.  Regardless of the level of alcohol or intoxication, the regulation still requires that the alcohol have caused an impairment and that the impairment have been the proximate cause of the accident.  There is no strict liability standard.  It is not enough to say the FSM was probably intoxicated, probably impaired and without more evidence conclude that he caused the accident.  That is particularly true when another vehicle is involved in the accident.

4.  The issue of whether or not the FSM was wearing a helmet was one of the two factors used to make the not in the line of duty determination.  But, it is not relevant to the issue of causation.   Even if not wearing a helmet, the lack of a helmet would not be the act without which the death would have occurred.  It would not be the proximate cause.  The proximate cause of the injury or death is the failure to yield or the crossing of a center line or the misjudging of the speed of oncoming vehicle or some other act.  In the absence of one of those acts, the FSM could have ridden all day without a helmet and lived to tell about it.

5.  The police report states the driver of the jeep did yield but does not indicate what this "yielding" consisted of, and the IO either did not talk directly to this driver or did not document that conversation.

6.  Likewise the IO did not obtain a copy of the FSM's driving record to show whether or not the FSM had any citations for similar incidents or obtain any information on how experienced he was with driving motorcycles of any kind, including the type he was riding at the time of the accident.  

7.  The applicant and counsel have provided no documentation to support their allegations that the FSM was not drinking in excess of safe limits for operation of a motor vehicle. 

8.  However, on the issue of the FSM's BAC; the applicant's counsel is correct. Based on the available evidence it would be difficult to determine the exact BAC at the time of the accident without additional calculations and information.  There are too many variables not in evidence such as when the FSM started drinking, what he was drinking, whether or not he was eating, or if his comatose condition affected the metabolism of alcohol or if his internal bleeding affected his blood alcohol concentration.  

9.  There are several significant errors or inconsistencies in the police report and information summaries provided by officers at the scene that render the report less than fully reliable.  Most noted is the indication that the unconscious FSM refused both an alcohol and drug test.  

10.  The LOD investigation report, as provided and included in the FSM's official records, is flawed starting with the fact that the IO was not appointed until over a month after the accident and three weeks after the FSM's death.  If the IO did an independent investigation of the facts, other than the phone interviews on the helmet issue, it was not properly recorded.

11.  There is no indication that the IO talked with anyone from the FSM's command to determine if anyone was aware of when and how much the FSM had been drinking prior to the accident.  There is no indication that the IO personally verified any of the accident scene information or visited the scene of the accident, nor did he obtain any information on the condition of the either vehicle or obtain the driving record of either person involved.

12.  The IO did not speak to the driver of the jeep (or he did not document it) to clarify factors such as the speed at which he was traveling, what he meant when he said he had "yielded" prior to entering the intersection, if the FSM had used his turn signal to indicate he was intending to exercise his right-a-way.  The IO failed to discover that there were two different versions of the accident gaven by 



the driver of the Jeep.  And, because he failed to discover the differing versions, he failed to make a reasonable inquiry into which version more accurately captured events as they happened.  Instead he relied on a version of events which made the FSM's driving appear erratic, though the second version related nothing more than the FSM making a legal right turn and then the Jeep hitting him.  While it is possible the inconsistencies could have been explained away, an explanation from the Jeep driver himself is required to do so.  But that never happened.

13.  With an unfavorable determination, the IO was required to notify the FSM of his option to rebut the findings prior to the finalization of the report.  With the death FSM this due process right devolved to his surviving spouse.  This was not done nor was it mentioned in the legal review prior to the acceptance of the findings and determination of not in the line of duty.

14.  With the BAC findings an hour after the accident, there is no question the FSM had alcohol in his system.  However, it is unclear whether that fact caused an impairment that in turn caused the accident which resulted in his death.  This was not a single vehicle accident.  There was another driver whose actions may just as easily have been the proximate cause of the accident.  The regulation presumes and active duty death is ILOD  That presumption has not been overcome by substantial reliable evidence.

15.  The LOD investigation was so poorly done or documented as to be considered fatally flawed, and the applicant's right to rebut the findings prior to completion of the LOD determination is also a significant violation of her due process.  Therefore, the LOD investigation should be determined to be insufficient to support the findings.

BOARD VOTE:

____X____  ___X_____  ____X____  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

The Board determined that the evidence presented was sufficient to warrant a recommendation for relief.  As a result, the Board recommends that all Department of the Army records of the individual concerned be corrected by showing that the FSM's death was in the line of duty not due to his own willful misconduct.



      _______ _   _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)                                         AR20100009636



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ABCMR Record of Proceedings (cont)                                         AR20100009636



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