BOARD DATE:	  23 December 2010

		DOCKET NUMBER:  AR20100011774 


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, removal of the "Not in Line of Duty - Due to Own Misconduct" finding from the Appeal of Line of Duty (LOD) investigation (LODI), dated 18 July 1985, and replacement with a finding of "In Line of Duty."

2.  He states, in effect, he has been denied benefits by the Department of Veterans Affairs (VA) due to an LODI which was completed in February 1984.  This investigation alleged a blood alcohol test was given with a Blood Alcohol Content (BAC) reading of .11 percent.  He contends no legal BAC test was given and the allegation of Driving While Intoxicated (DWI) was dismissed.  

3.  He states that the investigating officer, who was an Army first lieutenant, exhausted all efforts and did not complete the LODI on time with only hearsay as proof.  The VA denies that his broken neck and residuals are service connected because the LODI claims he was intoxicated.  

4.  He provided the following documents in support of his request:

* Memorandum for Record, LODI
* A copy of a DA Form 751 (Telephone or Verbal Conversation Record), 
		dated 5 April 1984
* Copy of Orders 129-6, 10th Mountain Division, dated 24 July 1985
* Letter of submission from the State of NY Division of Veterans Affairs, Utica, NY, dated 19 March 2010


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 service records show that prior to the period of service under review, the applicant enlisted in the Regular Army on 18 August 1975 for a period of 4 years, served in military occupational specialty 62B (Construction Equipment Repairer, and attained the grade of rank of sergeant/pay grade E-5 on 12 February 1980.  His records also show he was on the recommended list for promotion to grade of rank of staff sergeant/pay grade E-6 effective 
1 September 1983.

3.  The available Police Accident Report shows that the applicant's motorcycle was heading northbound on Stock Bridge Falls Road, when he lost control of the vehicle in a curve while trying to avoid a deer.  He was thrown over the handle bars and landed approximately 25 feet from the motorcycle in a ditch.  The police officer noted that his report was an estimate since the applicant was unable to state when the accident occurred.  This report also shows that road conditions were dry and it was moonlit night.  His records show that at the time of the accident, he was on ordinary leave from his unit at Fort Drum, NY.  

4.  The applicant's military service records show he was admitted to Oneida Hospital on 14 August 1983 and was transferred to State University Hospital, Syracuse, NY on the same day.  The copy of a patient discharge summary sheet from State University Hospital shows the applicant was admitted on 14 August 1983 following a motor vehicle accident.  He had amnesia for the event and the details of the accident were unclear.  When he was initially admitted, he was awake, alert, oriented, his vital signs were stable and there were no obvious injuries to the extremities.  

5.  The final diagnosis was fracture subluxation of C6 and C7 of the cervical column.  The applicant underwent open reduction and internal fixation of the C6 and C7 fracture subluxation.  He was discharged from the hospital on 26 August 1983.

6.  On 26 August 1983, he was transferred to the VA Medical Center in Syracuse, NY.  During his hospital stay, he underwent extensive physical therapy and was discharged on 19 September 1983 with follow-up physical therapy at a military treatment facility in Fort Drum, NY.

7.  On 21 October 1983, a DA Form 2173 (Statement of Medical Examination and Duty Status) was completed by his company commander.  Item 13 (Blood Alcohol Test Made) was annotated with the word, “unknown.”  This report noted the applicant was on leave at the time of the accident.  He navigated his vehicle to avoid hitting a deer when he lost control of his motorcycle and landed in a ditch.  He was found by another individual and sent to the hospital.  The commander also stated the police report was not available. 

8.  His records contain a copy of a DD Form 261 (Report of Investigation – Line of Duty and Misconduct Status), dated 8 August 1984.  This report states, in part, that the applicant was admitted to two hospitals following a motorcycle accident which occurred on 14 August 1983.  The NY state police cited the applicant for excessive speed and a DWI.  Further investigation revealed all charges were dropped; however, a BAC test of the applicant resulted in a finding of 
.11 percent; this was over the legal limit.  This report concluded that since the applicant was legally intoxicated at the time of the accident, his judgment may have been impaired.  The findings were “NOT IN THE LINE OF DUTY.”  

9.  He provided a copy of a Memorandum for Record, LODI.  This document was prepared by the investigating officer to show her numerous attempts to obtain a hard copy of the said BAC test which was allegedly performed on him.  She notes the following occurrences:

	a.  On 10 January 1984, contacted NY state police to determine status of citations issued to the applicant and if a blood alcohol test was administered based on the “unknown” entry made on the DA Form 2173.  The initial response was “yes” a BAC test was administered at Oneida City Hospital, and the results could not be released.  The military Law Enforcement Activity (LEA) became involved in order to attempt to obtain hard copy evidence.

	b.  On 7 February 1984, the LEA contacted the NY state police who indicated the applicant was a failure to appear in court.  It was postponed to November 1983 and changed a third time to 27 February 1984.  The state police noted a blood alcohol test had been performed which showed a blood alcohol level of 
.11 percent,; however, the report was not available at the time.  LEA indicated they would try to obtain a copy of the case after the 27 February 1984 court date.

	c.  On 5 April 1984, the LEA was unsuccessful in reaching the presiding judge.  The investigating officer also tried to reach the judge, to no avail. 

	d.  In May 1984, the investigating officer made contact with the applicant to make any comments and/or to give release permission to obtain the BAC test results.  The applicant indicated he would contact his lawyer and follow up with her. 

	e.  Between June and July 1984, the Fort Drum Office of the Staff Judge Advocate (OSJA), became involved after she received no follow up call from the applicant nor needed information from law enforcement authorities. 

10.  On 8 August 1984, the investigating officer compiled data and finalized the LODI, along with a DA Form 751 (Telephone or Verbal Conversation Record) in accordance with guidance received from the Fort Drum OSJA.   

11.  He provided a copy of the DA Form 751.  The summary of the conversation showed, in pertinent part, “Judge T_____ indicated all charges were dismissed and copies of transcripts were not available.  A copy of the blood alcohol test could not be given out due to the Privacy Act.”

12.  On 14 August 1984, a formal review of the LODI was conducted by the Fort Devens, MA OSJA.  This document showed that the findings of “NOT IN THE LINE OF DUTY” were legally insufficient.  The level of alcohol in the applicant’s blood is an indication of intoxication but did not mean he was intoxicated.  The cause of the accident had not been determined and substantial evidence did not exist to demonstrate that either intentional misconduct or willful negligence was the proximate cause of the accident. 

13.  His records contain a copy of a Line of Duty Determination memorandum, dated 21 August 1984.  The document noted a Physical Evaluation Board had been conducted and the findings were that the applicant’s injuries were incurred in the line of duty, effective 31 July 1984 and were approved for the Secretary of the Army.

14.  On 16 November 1984, the assistant chief of the Memorial Affairs and Casualty Support Division requested an advisory opinion from the Command Judge Advocate office of the latest findings.  He noted he was attaching a copy of the LODI and a copy of the laboratory slip from the applicant’s medical records which indicated a blood alcohol level of 151.7 milligrams/milliliters (mg/ml).
15.  The advisory opinion noted, in part:

	a.  When a service member (SM) incurs injuries as a result of driving a vehicle in a unfit condition to drive, and the SM has or is charged with knowledge, the proper finding is “NOT IN THE LINE OF DUTY.”  

   b.  The accident occurred in a curve and in the opinion of the police official alcohol involvement and an unsafe driving speed were to blame.  Subsequent BAC test indicated a .11 percent weight of alcohol in his blood per the police report and 151.7 mg in his blood according to hospital records. 

	c.  NY state police law prohibits operating a motor vehicle with a blood alcohol level of .10 percent or more; however, the Army has determined that .10 percent or more constitutes alcohol impairment.  

16.  On 1 March 1985, the chief of Memorial Affairs and Casualty Support Division provided the applicant with a line of duty determination letter which noted his proposal to change the PEB findings of “IN THE LINE OF DUTY” to “NOT IN THE LINE OF DUTY.” 

17.  On 17 April 1985, he appealed the determination and entered the following arguments:

* He was traveling between 25-30 miles per hour because he knew there was a stop sign ahead
* He swerved to the right to avoid hitting a deer
* There was no evidence in the police report of excessive speed, merely a conclusion
* The BAC test was taken several hours after the accident
* The mere presence of alcohol in his bloodstream was not sufficient to establish that alcohol was the proximate cause of the accident
* He was an experienced motorcycle operator who had been driving a motorcycle between 8 to 10 years accident free
* The evidence presented did not meet the standard of proof
* The weight of the evidence did not support a conclusion of intoxication
* The evidence did not support voluntary intoxication as the proximate cause of the accident 

18.  On 7 June 1985 another review of the LODI was completed by the OSJA.  This report noted that no evidence existed of the BAC test and that all available evidence in the case came from the applicant and is not contradicted and must be accepted as true.  Statements from the investigating officer were not sufficient to explain the inordinate delay, and the original decision of “IN THE LINE OF DUTY,” was correct and should be sustained.

19.  On 18 July 1985, after a thorough review of all the evidence and opinions received, the Memorial Affairs and Casualty Support Division denied the applicant’s appeal and concluded his injuries were “NOT IN THE LINE OF DUTY.” 

20.  The applicant’s records contain a DD Form 214 (Certificate of Release or Discharge from Active Duty) which shows he was honorably discharged on 
29 July 1985 under the provision of Army Regulation 635-200 (Enlisted Personnel), chapter 4 for expiration term of service.  He had completed a total of 9 years, 11 months, and 12 days of active service, with no lost time. 

21.  His records contain copies of correspondence from the U.S. Army Physical Disability Agency (USAPDA).  This correspondence shows that the PEB proceedings were revised based on the latest findings of the LODI.  On 
14 August 1985, he was asked to reply with his concurrence or nonoccurrence.  A copy of a registered mail receipts shows he received the documentation on 
31 August 1985.

22.  On 15 November 1985, the USAPDA sent a letter to the applicant for a failure to make an election and as a result, he was deemed to have waived his right to file a rebuttal to the revised findings.

23.  Army Regulation 600-8-1 (Army Casualty and Memorial Affairs and Line of Duty Investigations), in effect at the time, prescribed the policies and procedures for investigating the circumstances of the disease, injury, or death of a Soldier and provides standards and considerations used in determining LOD status. 

24.  Paragraph 39-1 of the same regulation provides, in pertinent part, that “line of duty 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 his or her intentional misconduct or willful negligence can never be said to be injured, diseased, or deceased in the line of duty."

25.  Paragraph 39-5 states that an injury or disease proximately caused by the member's intentional misconduct or willful negligence is "NOT IN THE LINE OF DUTY - due to own misconduct."

26.  Paragraph 40-3 provides, in pertinent part, that if information concerning the incident is sought from the member, the member will be advised that he or she does not have to make any statement that is against his or her interest that relates to the origin, incurrence, or aggravation of any injury or disease he/she suffered."

27.  Army Regulation 600-8-1 contains a glossary of definitions.  This glossary provides legal descriptions for the terms generally used in an investigation.  The following terms are further clarified below:

   a.  Preponderance of evidence is 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.

   b.  Presumption is an inference of the truth of a proposition or fact, reached through a process of reasoning and based on the existence of other facts.  Matters that are presumed need no proof to support them, but may be rebutted by evidence to the contrary.

   c.  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 line of duty - due to own misconduct" determination.

   d.  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."

28.  Black's Law Dictionary, sixth edition defines "intoxicated" as "affected by an intoxicant, under the influence of an intoxicating liquor."  It defines "intoxication" as "Term comprehends situation where, by reason of taking intoxicants, an individual does not have the normal use of his physical or mental faculties, thus rendering him incapable of acting in the manner in which an ordinarily prudent and cautious man, in full possession of his faculties, using reasonable care, would act under like conditions."  

DISCUSSION AND CONCLUSIONS:

1.  He contends the "Not In Line of Duty - Due to Own Misconduct" finding should be removed from the Line of Duty investigation, and replaced with a finding of "In Line of Duty" because of the investigating officer completed the report late and used only hearsay as proof. 

2.  The evidence of record shows that following the motorcycle accident that occurred on 14 August 1983, he was admitted to Oneida Hospital.  The evidence of record shows a blood alcohol level test was preformed by the hospital which showed a reading of 151.7 mg.  Later the same day, he was transferred to State University Hospital.  

3.  The evidence of record also shows the investigating officer contacted him and requested the release of records associated with the accident, but he did not comply.  Consequently, the LODI was concluded based on the evidence she was able to collect from available reports.  

4.  The investigating officer's findings must be supported by substantial evidence and by a greater weight of evidence than supports any different conclusion.  The evidence must show that it is more likely than not that the investigating officer's findings accurately document how the injury occurred.  This standard of proof is based on a "preponderance of evidence," and is less demanding than the "beyond a reasonable doubt" standard required in criminal proceedings.  There is no indication of procedural errors by the investigating officer which would tend to have substantially jeopardized the applicant's rights.  

5.  At the time, several advisory opinions were obtained from various legal offices before Casualty and Mortuary Affairs made a final determination.  He was presented the opinions and was given the opportunity to appeal or rebut.  

6.  The evidence of record also shows that the applicant's LODI was accomplished in compliance with applicable regulations, then in effect, with no indication of procedural errors which would have jeopardized his rights.  In this regard, although there appeared to be some differences of legal opinion between the various legal offices, the Department of the Army determined the LODI complied with the Army's regulatory requirements and the finding of “NOT IN THE LINE OF DUTY” was appropriate.

7.  He waived his right to appeal the revised PEB findings when he failed to respond to the USAPDA in November 1985. 


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)                                         AR20100011774



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ABCMR Record of Proceedings (cont)                                         AR20100011774



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