IN THE CASE OF:	  

		BOARD DATE:	  12 January 2011

		DOCKET NUMBER:  AR20100018318 


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, the DD Form 261 (Report of Investigation - Line of Duty and Misconduct Status), dated 22 August 1988, be corrected to show her injury in "line of duty" instead of "not in line of duty - due to own misconduct."

2.  The applicant states she feels her accident was not due to her misconduct.  White it is true she was under the influence of alcohol at the time, it is irrelevant.  She was getting ready for bed, opened the window, and fell out.  Anyone could have done that because there were no safety precautions in place in her barracks room accommodations (no screen or bars).  She called for help.  She states that besides her injuries from the accident, she was already in the process of discharge due to back issues.  It is clearly stated that her back issues were service connected and in the line of duty (LOD).

3.  The applicant provides:

* addendum to medical evaluation board (MEB)
* Standard Form 502 (Narrative Summary (Clinical Resume))
* Department of Veterans Affairs (VA) rating decision

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 records show she enlisted in the Regular Army on 14 October 1986 and held military occupational specialty (MOS) 74D (Computer Machine Operator).  She served in Germany from 20 April 1987 to 4 August 1988.  She was assigned to Headquarters and Service Company, Field Station, Berlin, Germany.

3.  Her records contain a DA Form 3975 (Military Police (MP) Report), dated 14 July 1988, that shows MP officials received a report of an attempted suicide of an individual jumping from the third floor of a company barracks, Building 904, Andres Barracks, Germany, on 3 July 1988.  The MP investigation revealed that the applicant, who had a history of emotional problems, became despondent for unknown reasons and subsequently jumped from her third floor barracks room window.  She was transported to a local hospital by German police where she was treated for a fractured right arm and minor facial injuries.  The MP report also noted the applicant was previously cited for assault on 18 October 1987 and assault consummated by battery on 18 October 1987.

4.  On 25 July 1988, an investigating officer (IO) was appointed to perform an LOD investigation pertaining to the applicant's injury.

5.  Item 10(g) (Basis for Findings - Remarks) of the DD Form 261 (Report of Investigation) shows the applicant suffered multiple fractures when she fell from her barracks room on 3 July 1988,

	a.  Testimony from Staff Sergeant (SSG) T____ P. F____ (unit member) who saw the applicant at approximately 0600 hours, indicates she was clearly intoxicated just before the accident.  SSG J____ M. G____ (Berlin MP Station) observed the applicant maneuver off the window ledge by grabbing onto the ledge with both hands prior to dropping three stories to the ground.  Testimony from SSG J____ M. G____ indicates the applicant appeared to be in a highly intoxicated state with a strong odor of alcohol emitting from her breath after she landed on the ground.

	b.  No blood alcohol test (BAT) was administered in conjunction with the incident because, according to Sergeant First Class C____ P____ (Noncommissioned Officer in Charge (NCOIC) of the Patient Administration Division, U.S. Army Hospital, Berlin, German authorities do not administer a BAT on a U.S. Soldier without being requested to do so.  She was transported by ambulance and admitted directly to a German hospital.

	c.  In her statement, the applicant admitted she had been drinking heavily during the evening and early morning hours prior to the incident to the point where she was experiencing memory loss.

	d.  According to Captain J____ L. C____ (Berlin Medical Department Activity (MEDDAC)), the applicant was first seen in October 1987 and she was diagnosed with an adjustment disorder with depressed mood.  She was subsequently seen and treated by the MEDDAC approximately 10 to 15 times for depression.  Her depression was severe enough to be considered suicidal in at last one instance in June 1988 and resulted in her admission to the hospital for 4 days according to testimony by her NCOIC and by her assistant shift supervisor.

	e.  The MEDDAC Commander also stated the applicant was referred to the hospital in December 1987 by her company commander for suicidal tendencies.  This preexisting condition may have caused her to be susceptible to the effects of alcohol.  Nevertheless, her injuries were a direct result of her abuse of alcohol. 
She voluntarily became intoxicated and her subsequent reckless conduct directly caused her to sustain injuries.  The IO found her injury was "not in line of duty - due to own misconduct."

6.  In her statement to the IO, dated 30 July 1988, she stated she and about seven others went to the German-French Volksfest on the night of the incident where she had several beers and a good time.  After the fest was closed, she and two other Soldiers took a taxi back to a club where a lot more drinking occurred to the point that she started having black-outs and loss of control.  She did not know how she got home, but she remembers she had an argument with her roommate.  She also remembers it was hot that morning so she opened the window and sat on the ledge.  The arguing continued and at that point all she wanted was to be left alone.  She was hysterical and did not want to fight anymore.  As other individuals left the room, she remembers she was crying and the next thing she remembers was that she was hanging from the window ledge. 
She screamed for help and then blacked out.  When she woke up, she found herself in the hospital.

7.  On 3 August 1988, the applicant was reassigned to Walter Reed Army Medical Center (WRAMC), Washington, DC, and she was assigned to the Psychiatry Department for further treatment.  She underwent a psychiatric evaluation on 18 August 1988 wherein it was noted she had a history of treatment for mood disturbances and suicidal ideation since October 1987.  She had previously responded well to supportive counseling and performed adequately at work.  However, she was briefly hospitalized in June 1988 for suicide ideation prior to her incident in July 1988 when she fell from the window while under the influence of alcohol.  The attending physician indicated the applicant needed inpatient treatment for her mood disorder and alcohol dependence.  Until then, her reliability and stability were questionable.

8.  On 12 September 1988, a military attorney reviewed the formal LOD investigation and concluded it was legally sufficient.

9.  On 13 September 1988, she underwent a complete physical examination.  Her Standard Form 502 shows her chief complaint was multiple trauma with complaints of pain and right wrist, right elbow, and right posterior thorax, right pelvis, and low back.

	a.  She was diagnosed with the following medical conditions:

* fracture, right pubis, pending LOD determination
* fracture, right distal radius, pending LOD determination
* fracture, right radial head, pending LOD determination
* fracture, posterior right rib, pending LOD determination
* sacroiliac area pain, existed prior to service (EPTS)
* heart murmur, EPTS

	b.  The attending physician stated she was at an increased risk for post-traumatic arthritis in her joints due to her injuries.  Additionally, her history of back pain may have been aggravated by the altered biomechanics caused by her injuries.  Due to the multiplicity of her injuries, the attending physician recommended her entry into the Physical Disability Evaluation System (PDES).

10.  On 14 September 1988, the appointing authority approved the IO's findings and on the same date the Adjutant General, U.S. Command, Berlin, approved a finding of "not in line of duty - due to own misconduct" on behalf of the Secretary of the Army.

11.  On 4 October 1988, the applicant acknowledged receipt of her LOD determination.

12.  On 6 October 1988, an MEB convened at WRAMC and after consideration of clinical records, laboratory findings, and physical examinations, the MEB determined the applicant had the medical conditions of right pubis fracture, right distal radius fracture, radial head fracture, and posterior right rib fracture.  The MEB recommended she be referred to a physical evaluation board (PEB).  The applicant agreed with the MEB's findings and recommendation and indicated she did not desire to continue on active duty.

13.  An addendum to the MEB chronicles the applicant's history of present illness, military history, social and family history, past medical history, physical examination, mental status, consults, hospital treatment, and diagnoses.  The addendum listed the following diagnoses:

* Axis I:  alcohol dependence and adjustment disorder (LOD:  Not Applicable)
* Axis II:  deferred
* Axis III:  multiple fractures (LOD:  Undetermined) and contusions to lung secondary to fractured rib (LOD:  Yes)
* Axis IV:  psychosocial stressors
* Axis V:  global assessment of functioning:  70

14.  On 18 October 1988, an informal PEB convened at WRAMC and after a review of the objective medical evidence of record, the PEB found the applicant's medical and physical impairments prevented reasonable performance of the duties required by her grade and MOS and determined that she was physically unfit due to fracture of the right pubis, right distal, and radial head.  The PEB noted that these disabling conditions were the result of her own misconduct and accordingly, the proper disposition was her separation without entitlement to disability benefits from the Army.  Additionally, the PEB considered the other condition of posterior right rib fracture but determined it was not unfitting and therefore it was not ratable.  She was classified under the VA Schedule for Rating Disabilities, but she was not given a rating.  The PEB recommended the applicant be separated from the service without disability benefits.

15.  On 21 October 1988, subsequent to receiving counseling on the findings and recommendations and of her legal rights, the applicant concurred with the PEB's findings and recommendation and waived her right to a formal hearing of her case.  The PEB president approved the findings and recommendations of the PEB on the same date.

16.  On 23 November 1988, the applicant was honorably discharged.  The DD Form 214 (Certificate of Release or Discharge from Active Duty) she was issued shows she was discharged under the provisions of paragraph 4-24E(6) of Army Regulation 635-40 (Physical Evaluation for Retention, Retirement, or Separation) by reason of "disability - not in line of duty."  This form further shows she completed 1 year, 8 months, and 20 days of creditable active military service.

17.  The applicant submitted a copy of her VA rating decision, dated 4 August 2009, that shows the VA awarded her 10-percent disability compensation for a service-connected condition (low back).

18.  Army Regulation 600-8-1 (Army Casualty and Memorial Affairs and Line of Duty Investigations) in effect at the time, dated 18 September 1986, prescribed the policies and procedures for investigating the circumstances of the disease, injury, or death of a Soldier and provided standards and considerations used in determining LOD status.  It also provided the reasons for conducting an LOD Investigation (LODI), which include extension of enlistment, longevity and retirement multiplier, forfeiture of pay, disability retirement and severance pay, medical and dental care for Soldiers on duty other than active duty for a period of more than 30 days, and benefits administered by the VA.  This regulation further provided that an adverse LOD determination was an administrative determination and not a punitive or judicial action.  Disciplinary and other administrative actions, if warranted, should be taken independently of any LOD determination.  A favorable determination did not preclude separate disciplinary or administrative actions and an LOD determination was not binding on the issue of guilt or innocence of the Soldier in a separate disciplinary action, the issue of pecuniary liability in a report of survey, or any other administrative determination.

19.  Paragraph 39-1 (General) of Army Regulation 600-8-1 provided that "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 his or her intentional misconduct or willful negligence can never be said to be injured, diseased, or deceased in the LOD."

20.  Paragraph 39-5 (Standards Applicable to LOD Determinations) of Army Regulation 600-8-1 provided that "injury or disease proximately caused by the member's intentional misconduct or willful negligence is "not in LOD - due to own misconduct."

21.  Paragraph 40-3 (Evidence Collection) provided 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."

22.  Paragraph 41-10 (Intoxication and Drug Abuse) of Army Regulation 600-8-1 provided that "an injury incurred as the 'proximate result' of prior and specific voluntary intoxication is incurred as the result of misconduct.  In order 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 member'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."

23.  Appendix B (Rules Governing LOD and Misconduct Determinations) of Army Regulation 600-8-1 stated that "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 LOD.'"  To arrive at such decisions, several basic rules can be applied to various situations. 
(The specific rules of misconduct are set forth in appendix B.)

24.  Rule 1 of appendix B provides that "injury, disease, or death directly caused by the individual's misconduct or willful negligence is not in the LOD.  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 LOD and (2) whether it was due to misconduct.  Normally, the two issues are resolved at the same time under the same facts and same rules."

25.  Rule 3 of appendix B provides that "injury, disease, or death that results in incapacitation because of the abuse of alcohol and other drugs is not in the LOD. 
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.  That the Soldier may have had a pre-existing physical condition that caused increased susceptibility to the effects of the drug does not excuse such misconduct."

26.  Rule 4 of appendix B provides that "injury, disease, or death that results in incapacitation because of the abuse of intoxicating liquor is not in the LOD.  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."

27.  The glossary of Army Regulation 600-8-1 states that "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.  The glossary of Army Regulation 600-8-1 states that a "preponderance of evidence is evidence that tends to prove one side of a disputed fact by outweighing the evidence to the contrary (i.e., 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."

29.  The glossary of Army Regulation 600-8-1 states that "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."

30.  The glossary of Army Regulation 600-8-1 states that "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 line of duty - due to own misconduct' determination."

31.  The Glossary of Army Regulation 600-8-1 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 circumstance.  An injury or disease caused solely by simple negligence is in the LOD unless EPTS or occurred during a period of absence without leave (except when the Soldier was mentally unsound at the inception of the unauthorized absence)."

32.  The glossary of Army Regulation 600-8-1 states that "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."

33.  Army Regulation 635-40 governs the physical evaluation for retention, retirement, or separation of U.S. Army personnel.  Paragraph 4-24E(6) in effect at the time stated that based on the final decision of the U.S. Army Physical Disability Agency, appropriate orders would be issued to separate the Soldier for physical disability without severance pay when the disability was incurred as a result of intentional misconduct, willful neglect, or during a period of unauthorized absence.

34.  Title 38, U.S. Code, sections 1110 and 1131, permits the VA to award compensation for disabilities which were incurred in or aggravated by active military service.  However, an award of a higher VA rating does not establish error or injustice in the Army rating.  

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends, in effect, that the DD Form 261, dated 22 August 1988, should be corrected to show her injury as in "line of duty" instead of "not in line of duty - due to own misconduct" because the fact that she was drinking is irrelevant.  She was already in the discharge process due to her back issues and the VA determined her back pain to be service connected.

2.  The evidence of record shows she was involved in an accident that resulted in multiple fractures when she fell from her barracks window.  An MP report determined the presence of alcohol.  A formal LODI was conducted by an IO who examined all the evidence, reviewed the facts, obtained testimonies, and concluded the applicant's misconduct was the proximate cause of her injury.  This conclusion, reviewed for legal sufficiency, that the misconduct was sufficient to characterize her injury as not in the LOD, was supported by the findings.

3.  The evidence of record further shows the applicant consumed an undetermined amount of alcohol prior to returning to her barracks room by her admission in her statement, "At the Studio, a lot more drinking was done."  As a result, there is a presumption that the applicant was in an unfit condition to sit on the window ledge and her willful negligence was a proximate cause that produced her injuries.

4.  Moreover, Army Regulation 600-8-1 states that "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."  She demonstrated willful negligence and a disregard for the foreseeable 

consequences when she decided to consume alcohol and sit on the window ledge.  Therefore, in view of the foregoing, the evidence of record supports a "not in line of duty - due to own misconduct" determination.  All requirements of law and regulation were met and the applicant's rights appear to have been fully protected throughout the investigation.

5.  There is a presumption of administrative regularity in the conduct of governmental affairs.  This presumption can be applied to any review unless there is substantial creditable evidence to rebut the presumption.  In this instance, the "presumption of regularity" is based on Army Regulation 600-8-1 which provides that the correct conclusion based on the facts must be shown.  The evidence of record supports the conclusion that the LODI findings and determination are correct.

6.  With respect to the applicant's back pain, there is no evidence in her records and she did not provide substantiating evidence that she was already in the process of a discharge for her back issues.  Although her Standard Form 502 shows her chronic back pain was service aggravated prior to her alcohol-related injury, nowhere does it show this back pain rendered her medically unable to perform the duties required of her grade or MOS or warranted her entry into the PDES.

7.  An award of a rating by the VA does not establish error by the Army.  Operating under different laws and its own policies, the VA does not have the authority or the responsibility for determining medical unfitness for military service.  The VA may award ratings because of a medical condition related to service (service connected) and affects the individual's civilian employability.  A determination of service connection and/or rating decision rendered by the VA does not mandate a similar determination for the LODI by the Army.  In fact, the evidence of record shows the VA did not consider the Army's approved LODI findings and determination concerning the applicant's fractures when it arrived at its decision.  In this regard, it would be inappropriate for the Army to change the applicant's LOD determination based on the VA's rating decision.

8.  The evidence of record also shows 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, the evidence of record further shows that both the LOD approving and appellate authorities determined the LODI complies with the Army's regulatory legal requirements.


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 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)                                         AR20100018318



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ABCMR Record of Proceedings (cont)                                         AR20100018318



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