IN THE CASE OF:	  

		BOARD DATE:	    24 May 2011

		DOCKET NUMBER:  AR20100017024 


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 applicants, the parents of a deceased former service member (FSM), request correction of the FSM's record to show:

* on the DD Form 261 (Report of Investigation - Line of Duty and Misconduct Status), dated 11 March 2009, the FSM's death was "in line of duty" instead of "not in line of duty - due to own misconduct"
* The FSM's promotion to first lieutenant (1LT), effective 26 November 2008

2.  The applicants state their son died as a result of an automobile accident on 24 November 2008.  However, many issues regarding the circumstances of his death and his promotion to 1LT remain unanswered.  Specifically:

* There were contradictions and inconsistencies in the witness statements
* The FSM had an exemplary record of military service and behavior which should invalidate any single claim of misconduct
* The FSM was posthumously awarded an Army Achievement Medal (AAM) and the Presidential Memorial Certificate, and he was buried at a national cemetery with full military honors
* The next of kin (NOK) notification and body identification both occurred after the effective date of promotion
* The FSM's commander and the casualty officer repeatedly told them his promotion was in the works
* The FSM was issued multiple letters and/or correspondence referring to him as a 1LT
* The facts that they were told and what they personally know regarding their son's death do not match the facts presented in the reports
* No one was able to provide their son's side of the events that occurred
* They believe the information collected may have been impacted by self-protection and other vested interest

3.  The applicants provide:

* A self-authored storyline for appeal of the line of duty (LOD) determination
* A letter from the Chief, Casualty Assistance Center, Fort Rucker, AL
* A letter from the U.S. Army Human Resources Command, Alexandria, VA (HRC-ALEX)
* Order Number 294-165 (promotion to 1LT) and Order Number 336-002 (revocation of promotion)
* Various Congressional correspondence letters
* A DA Form 638 (Recommendation for Award)
* A cell phone bill
* A photograph of the FSM's headstone

CONSIDERATION OF EVIDENCE:

1.  The FSM enlisted in the Wisconsin Army National Guard (WIARNG) on
15 January 2004 and he completed basic combat training at Fort Jackson, SC, from 23 May 2004 through 6 August 2004.  He was assigned to the 1st Battalion, 147th Aviation, WIARNG.

2.  On 7 September 2004, he executed a 3-year Army Senior Reserve Officers' Training Corps (ROTC) Scholarship Cadet Contract for attendance at the University of Wisconsin.  He was honorably discharged from the ARNG on 4 November 2004 for enrollment into the Advanced ROTC Course.

3.  On 23 March 2007, Headquarters, U.S. Army Cadet Command, ordered the FSM to a 4-year active duty commitment, upon his acceptance of appointment, with assignment to the 1st Aviation Brigade, Fort Rucker, effective 21 October 2007.

4.  He was appointed as a Reserve commissioned officer in the rank of 2LT on 15 May 2007.  He attended the Leader Development and Assessment Course at Fort Lewis, WA, from 9 June to 25 August 2007.  He was scheduled to attend the following courses at Fort Rucker: Dunker Course; Survive, Evade, Resist, 

Escape (SERE) Course; Aviation Basic Officer Leader (Part A) Course; Initial Entry Rotary Wing Aviator (Common Core) Course; and the Aviation Basic Officer Leader (Part B) Course.  He was assigned to Company D, 1st Battalion, 145th Aviation Regiment, 1st Aviation Brigade, Fort Rucker.

5.  On 20 October 2008, HRC-ALEX, published Order Number 294-165, announcing the FSM's promotion to 1LT with an effective date and date of rank of 26 November 2008.

6.  The FSM was killed on 25 November 2008 at 0035 hours in a motor vehicle accident near Pensacola, FL.  The car he drove was owned by him with no other passenger inside.  An investigating officer (IO) was appointed to conduct an LOD investigation pertaining to the FSM's death.  According to the IO's storyline of events, dated 5 March 2009:

	a.  A friend of the FSM got out of school on Sunday 23 November 2008 and needed a ride to the Pensacola airport for a flight departing on Tuesday, 25 November 2008 at 1500 hours.  The FSM drove to Pensacola at 1330 hours on Monday, 24 November 2008, with the intention of getting to Pensacola the night before the flight so the two friends could get dinner and catch up.  The FSM did not request a pass or inform his cadre chain of command of his intentions.  He solicited help from another individual to cover for him and report him present for duty on Tuesday, 25 November 2008, during the morning formation.

	b.  The cover-up scheme was uncovered when the news arrived that the FSM was killed.  The result of the FSM's unauthorized absence was that he did not go to Pensacola with a trip risk assessment, he violated the unit pass policy, he violated the approved Christmas Leave Packet Commander's hand-shake for drinking and driving, and he did not call his chain of command for help to inform them of his whereabouts.

	c.  When the FSM got to Pensacola, he got a motel room and he and a friend went out to dinner at 1830 hours to the Ale House where the FSM had four Vodka Collins (beer mug size) with a glass of water.  They then went to a bar where the FSM had one more Vodka Collins.  They then walked across the street to another facility where he had one more drink followed by another bar where he had two more drinks.

	d.  At about 2200 hours, the friend noticed the FSM was intoxicated and the FSM began drinking water to try to mitigate the effects of the alcohol.  Around 2230 hours, the FSM excused himself to go to the bathroom but he never came 

back.  The friend looked for him for about three hours and then gave up.  When the FSM failed to show up at the motel the next morning, the friend called the local police.  

	e.  The FSM was unaccounted for from 2230 to 0000 hours on 24 November 2008.  Around 0000 hours on 25 November 2008, witnesses around the Bay Bridge saw the FSM, while driving, head back and forth across two different bridges multiple times.  He looked like a lost driver.  A witness saw the FSM's black vehicle travelling at a very high rate of speed on Highway 98, weaving from lane to lane when entering the Bay Bridge.

	f.  The witness observed the FSM drive across the bridge at a high rate of speed in a snake-like pattern, continuously changing lanes and almost crashing into another vehicle before being able to switch lanes and pass it.  Upon exiting the Bay Bridge, three witnesses saw the FSM's car coming back toward them heading the wrong way at a high rate of speed.  

	g.  A witness who saw the crash ahead of him believed there was apparently no attempt by the FSM or the vehicle driving in the other direction to brake or turn to avoid each other.  The crash occurred at such high speed that both vehicles instantly crushed and incinerated, leaving no chance for survival for either victim.  Ammunition stored in the FSM's car had ejected during the crash and was exploding in the fires caused by both cars.

	h.  An officer certified as a traffic homicide investigator arrived at the scene and wrote up the collision report.  He could not determine the blood alcohol content (BAC) on the scene because both bodies were burned beyond recognition.

7.  The IO's approved findings of the LOD investigation show a finding of "Not in the Line of Duty - Due to own Misconduct" as follows:

* The FSM had a 0.18 BAC 
* The FSM drank eight Vodka Collins between 1830 and 2230 hours on
24 November 2008
* Based on witness testimony, the FSM was driving recklessly and almost crashed into two other vehicles
* The FSM was accused of the vehicular homicide, notably resulting in the death of a 39-year old Pensacola resident, a husband and a father of three children

8.  Item 10 (Basis for Findings) of the DD Form 261 shows the FSM was killed in a motor vehicle accident as a result of a head-on collision, causing both vehicles to become engulfed in flames.

	a.  A statement, dated 25 November 2008, to the police indicated the FSM drank a total of eight beer mug-sized Vodka Collins from 1830 to 2200 hours before he disappeared.  He was unaccounted for from 2230 to 0000 hours that night.  Since his body was burned beyond recognition, the police were unable to determine his BAC but estimated it at approximately 0.110.  

	b.  The collision report from the Gulf Breeze Police Department indicated the FSM exceeded the speed limit of 45 miles per hour (mph) by driving over the Bay Bridge at 85 mph (+/-7 mph).  He was heading the wrong way on a two-lane, one-way bridge road.  During the time of the crash, the lighting condition was dark with street lights, concrete was defect-free, road surface was dry, visibility was unrestricted, and the road was straight and level with no visual obstructions. The driver of the other car involved in the crash was also killed.

	c.  A statement from the FSM's company commander indicated the FSM was not signed out on pass for Monday, 24 November 2008, nor did he call the Staff Duty Officer, his class leader, or his immediate cadre supervisors about his whereabouts.  The FSM was clearly unauthorized to do this trip without a pass due to his plan to stay overnight in Pensacola.

9.  On 1 December 2008, HRC-ALEX published Order Number 336-002 revoking the FSM's promotion to 1LT.

10.  On 3 December 2008, the battalion commander, 1st Battalion,
145th Aviation Regiment, Fort Rucker, approved a posthumous award of the AAM for the FSM's dedication and service from 12 May 2007 to 24 November 2008.

11.  On 7 January 2009, by letter to the parents' Representative in Congress, an HRC-ALEX Casualty and Mortuary Affairs officer indicated that a posthumous promotion could not be given without a completed Army LOD investigation which was awaiting the Gulf Breeze Police Department's completion of their investigation into the accident.  Once an LOD investigation was final, a determination of the posthumous promotion could be made.

12.  On 11 March 2009, the appointing authority approved the IO's findings of "Not in Line of Duty - Due to Own Misconduct" on behalf of the Secretary of the Army.

13.  On 22 March 2009, HRC-ALEX issued the DD Form 1300 (Report of Casualty).  The FSM died as a result of a non-hostile accident on 25 November 2008, in Pensacola.

14.  On an unknown date, the Secretary of the Army disapproved the FSM's posthumous promotion under the provisions of Title 10, U.S. Code, section 1521 and Army Regulation 600-8-29 (Officer Promotions).

15.  In the processing of this case, on 6 April 2011, an advisory opinion was obtained from the Office of the Deputy Chief of Staff, G-1.  The advisory official stated:

	a.  The Secretary of the Army has denied the request for posthumous promotion to 1LT.  The FSM was found fully qualified for automatic promotion to 1LT and he was to be promoted on 26 November 2008.  However, he was unable to accept this promotion because of his death on 25 November 2008.  The initial casualty report indicated the FSM died as a result of an automobile accident.  He had been drinking at a bar and subsequently drove the wrong way down a street at a high rate of speed and he ultimately struck another vehicle head-on.  Both cars were engulfed in flames and both drivers died at the scene.

	b.  A posthumous promotion was not processed pending the outcome of the LOD investigation required at the time.  On 11 March 2009, the results found the FSM's death was not in line of duty - due to his own misconduct.  The facts presented by the local police at the time of death were that the FSM had a high BAC and prior to the accident he had been driving recklessly and exceeded the safe speed limits by at least 33 mph.

   c.  Prior to this incident, Title 10, U.S. Code, section 1521(a)(3) allowed the President to issue a commission for an officer who was officially recommended for promotion but was unable to accept promotion because of death in line of duty.  As a result, all posthumous promotions required that the LOD investigation be completed with submission and that the findings were in line of duty prior to a posthumous promotion being approved.

	d.  On 14 October 2008, the President signed the Fiscal Year 2009 National Defense Authorization Act (FY09 NDAA), section 502, which removed the "line of duty" requirement for posthumous eligibility and replaced it with a determination by the Secretary of the Military Department concerned that the member was qualified for appointment to that higher grade at the time of death.  The Assistant Secretary of the Army (Manpower and Reserve Affairs) subsequently published implementing guidance in May 2009. 

	e.  Title 10, U.S. Code, section 3583 requires exemplary conduct of all commanding officers and others in authority in the Army.  DOD Instruction 1320.4, subject:  Military Officer Actions Requiring Approval of the Secretary of Defense or the President, or Confirmation by the Senate, dated 14 March 1995, requires the Secretary of the Army to ensure that officers recommended for appointment to a higher grade remain qualified under the requirements of exemplary conduct.

	f.  While the previous unfavorable LOD investigation finding no longer renders the FSM ineligible for posthumous promotion under the provisions of the law, he is not automatically entitled to be posthumously promoted.  In summary, although his loss is a tragedy for both the Army and the family, the Secretary of the Army has denied this request based on the FSM's own misconduct which directly resulted in not only his death but in the death of another.

16.  On 20 April 2011, the parents submitted a rebuttal in which they stated:

* The family was told on multiple occasions that there was no requirement for the posthumous promotion to be held pending the LOD investigation
* The FSM was awarded the Meritorious Service Medal [sic] (AAM) as a testament to his outstanding service
* The FSM was of the highest caliber and a great Soldier
* The family was misinformed of the length of time with the LOD investigation; there were constant delays; and they received continuous conflicting information
* The FSM earned his promotion and the Army did not honor it
* There remains questions and suspicions regarding what really occurred on 25 November 2008
* The IO did not interview the family
* The accident site is notorious for its poor/misleading signage
* The FSM was fully qualified for promotion and he should be posthumously promoted

17.  Army Regulation 600-8-4 (Line of Duty Policy, Procedures, and Investigations) prescribes policies, procedures, and mandated tasks governing line of duty determinations of Soldiers who die or sustain certain injuries, diseases, or illnesses.  

	a.  Paragraph 2-6c states 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, considering all direct evidence, that is, evidence based on actual knowledge or observation of witnesses; and/or all indirect evidence, that is, facts or statements from which reasonable inferences, deductions, and conclusions may be drawn to establish an unobserved fact, knowledge, or state of mind.

	b.  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 the Soldier’s physical or mental faculties were impaired due to intoxication at the time of the injury, the extent of the impairment, and that the impairment was a proximate cause of the injury. 

	c.  Paragraph 4-13c states that for purpose of rendering a line of duty determination in death cases, a Soldier’s death will be considered to have occurred in line of duty unless the death was the result of the Soldier’s intentional misconduct or willful negligence.   

	d.  Section II defines simple negligence as 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.  

	e.  Section II defines willful negligence as a conscious and intentional omission of the proper degree of care that a reasonably careful person would exercise under the same or similar circumstances.  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. 

	f.  Paragraph 4-14 states if the subject matter of the investigation involves any motor vehicle accident, the following facts are important and should be addressed, if applicable: Speed of vehicle involved, as evidenced by testimony of witnesses, skid marks, condition of roads, and the damage to the vehicle; road factors, including all road characteristics, natural obstructions to the driver’s vision, and traffic signs; other vehicles, including any part played by them in creating the conditions that resulted in the accident; traffic conditions at the scene of the accident and their effect on the accident; traffic laws and regulations in force pertinent to the accident, including speed limits and required safety 

devices; light and weather conditions and their effect on driving conditions; mechanical condition of the vehicles involved; physical condition of the driver or drivers, including sobriety, fatigue, and exhaustion, and the effect of their physical condition on the accident.

	g.  Appendix B of this regulation states in every formal investigation the purpose is to find out whether there is evidence of intentional misconduct or willful negligence that is substantial and of a greater weight than the presumption of "in line of duty."  To arrive at such decisions, several basic rules apply to various situations.

	h.  Appendix B, Rule 1, states injury, disease, or death directly caused by the individual’s misconduct or willful negligence is not in line of duty.  It is due to misconduct.  This is a general rule and must be considered in every case where there might have been misconduct or willful negligence.  Generally, two issues must be resolved when a Soldier is injured, becomes ill, contracts a disease, or dies: (1) whether the injury, disease, or death was incurred or aggravated in the line of duty; and (2) whether it was due to misconduct.

	i.  Appendix B, Rule 9, states injury or death because of erratic or reckless conduct, without regard for personal safety or the safety of others, is not in line of duty.  It is due to misconduct.  This rule has its chief application in the operation of a vehicle but may be applied with any deliberate conduct that risks the safety of self or others.

18.  Title 10, U.S. Code, section 1521, posthumous commissions, states the President may issue, or have issued, an appropriate commission in the name of a member of the armed forces who, after September 8, 1939, was appointed to a commissioned grade but was unable to accept the appointment because of death in LOD; successfully completed the course at an officers' training school and was recommended for appointment to a commissioned grade by the commanding officer or officer in charge of the school but was unable to accept the appointment because of death in LOD; or was officially recommended for appointment or promotion to a commissioned grade but was unable to accept the promotion or appointment because of death in LOD.

19.  FY09 NDAA amended section 1521 to add a commission issued under the above subsection in connection with the promotion of a deceased member to a higher commissioned grade shall require certification by the Secretary concerned that, at the time of death of the member, the member was qualified for appointment to that higher grade.

20.  Title 10, U.S. Code, section 3583 (Requirement of exemplary conduct), states all commanding officers and others in authority in the Army are required to show in themselves a good example of virtue, honor, patriotism, and subordination; to be vigilant in inspecting the conduct of all persons who are placed under their command; to guard against and suppress all dissolute and immoral practices, and to correct, according to the laws and regulations of the Army, all persons who are guilty of them; and to take all necessary and proper measures, under the laws, regulations, and customs of the Army, to promote and safeguard the morale, the physical well-being, and the general welfare of the officers and enlisted persons under their command or charge. 

21.  Army Regulation 600-8-29 (2005 version - prior to the change in the law) prescribes policies and procedures governing promotion of Army commissioned and warrant officers on the active duty list.  It states officers who are not promoted in the normal course of events may be promoted posthumously, if otherwise eligible, according to paragraph 1-29 of this regulation.  The following facts must be included in the report:  the date of the HRC letter that announced the promotion list, the date the officer was hospitalized, diagnosis and life expectancy, and line of duty determination.

22.  Paragraph 1-29 of the regulation in effect in 2005 states an officer may be posthumously promoted if, at the time of death, the following conditions are met:

* Proper authority had approved the recommendation of the promotion selection board at the time of death; a posthumous promotion to 1LT must have been approved by proper authority prior to death
* The death was not due to the officer’s own misconduct
* The officer was not on an unauthorized absence

23.  The first two bullets in item 19 above were superseded by the FY09 NDAA amendment to Title 10, U.S. Code, section 1521, which removed the line of duty requirement and replaced it with a determination by the Secretary of the Army that the member was qualified for appointment to the higher grade at the time of death.  However, the change in the law did not remove the requirement that the officer "must not be in an unauthorized absence."

24.  Army Regulation 15-185 governs the operation of the Army Board for Correction of Military Records (ABCMR).  The ABCMR begins its consideration of each case with the presumption of administrative regularity.  The applicant has the burden of proving an error or injustice by a preponderance of the evidence.  The ABCMR will decide cases on the evidence of record.  It is not an investigative body.

DISCUSSION AND CONCLUSIONS:

1.  The evidence of record shows the FSM was involved in a vehicle accident that resulted in his and another individual's death.  A police report, coupled with witness statements, determined excessive speed and alcohol were factors in the accident.  A formal LOD was conducted by an IO who examined all the evidence, reviewed the facts of the operator's speed and intoxication, and concluded the FSM's misconduct was the proximate cause of this tragic accident.  The IO concluded that the FSM:

* left Fort Rucker for Pensacola on 24 November 2008 without authority
* drank in excess while there
* drove in the wrong direction over a one-way highway bridge, while intoxicated, at a high rate of speed
* killed a civilian husband and father of three children, and himself, in a head-on collision

2.  The IO's conclusion that the misconduct was sufficient to characterize his death as not in line of duty was supported by the findings, and reviewed for legal sufficiency.  All requirements of law and regulation were met and the FSM's rights appear to have been fully protected throughout the investigation.  There is neither an error nor an injustice.  Therefore, the line of duty determination of "Not in Line of Duty - Due to Own Misconduct" is the appropriate determination and there is no reason to reverse it.

3.  The Army properly denied the posthumous promotion.  Title 10, U.S. Code, section 1521, provides for posthumous promotion of Soldiers on an approved promotion list.  An amendment to this law in October 2008 removed a requirement that the death occurred in line of duty.  A determination if a Soldier was qualified for promotion rests with the Secretary of the Army.

	a.  Following the change to the law, the Army G-1 issued implementing guidance.  Essentially, an officer would be posthumously promoted if qualified for appointment to the higher grade.  To be qualified, the officer had to be on a duly executed board report and not serving under a flag (suspension of favorable personnel actions) on the date of death.  

	b.  The G-1's advisory opinion indicates that the Secretary of the Army may deny a posthumous promotion for an otherwise qualified officer if the 

circumstances leading to his death did not demonstrate the standards of exemplary conduct statutorily required (Title 10, U.S. Code, section 3583) of 
commanders and officers in a position of authority.  This is an authorized and an appropriate consideration in this case because this same statute is cited in the instructions provided to every promotion board, regardless of grade.  

	c.  The FSM was on an approved promotion list and he was not under a flagging action.  However, the G-1 guidance, based on the change in the law, superseded paragraph 1-29 of Army Regulation 600-8-29 governing posthumous promotions.  This paragraph provided three instances where a posthumous promotion was not authorized.  The officer:

* was recommended but not yet approved for promotion
* died as a result of his/her own misconduct (not in line of duty)
* was absent from duty without authorization

	d.  The G-1 guidance only discussed the first two qualifications.  It did not explicitly remove absence without authority as a disqualification for promotion (and, in fact, this status renders any officer non-promotable).  The line of duty investigation showed the FSM schemed with another aviation cadet to cover up his trip to Pensacola.  The FSM was not on leave and he did not have a pass.  Therefore, he was absent from duty without authorization at the time of his death. On this basis alone, the applicants are not entitled to relief.  

4.  The FSM's honorable service, his love of country, and achievements are noted.  Additionally, his award of the AAM is also noted.  However, the fact remains that he was killed as a result of his own misconduct.  The determination of "Not in Line of Duty - Due to Own Misconduct" is the appropriate conclusion.

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)                                         AR20100017024



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ABCMR Record of Proceedings (cont)                                         AR20100017024



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