IN THE CASE OF:	  

		BOARD DATE:	  12 May 2011

		DOCKET NUMBER:  AR20100022015 


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 medical retirement.

2.  The applicant states he received a partial amputation on his left foot while on active duty.  He was never informed or questioned about alcohol being the cause of his motorcycle accident and he had not been drinking prior to the accident. 

3.  The applicant provides a copy of a 1985 Department of Veterans Affairs (VA) administrative 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 served on active duty from 15 July 1975 through 31 January 1980.
3.  On 24 March 1979, the applicant was involved in a motorcycle accident.  The police report shows the applicant was injured when he failed to stop at a stop sign, ran off the road, and hit a tree.  He was not wearing a helmet and was found to have been under the influence of alcohol.  No blood alcohol results are recorded on the police report.

4.  A 24 March 1979 DA Form 2173 (Statement of Medical Examination and Duty Status) shows that the applicant provided a statement indicating the accident occurred when he was returning from a party where he had consumed at least a six-pack of beer.  He was giving a female military dependent a ride and driving "quite rapidly" when he approached a stop sign.  His foot slipped and caught under the brake, preventing him from braking.  He continued through the intersection and went off the road hitting a tree.  Neither he nor the rider were wearing helmets. 

5.  A DA Form 2823 (Sworn Statement), dated 8 August 1979, shows the applicant admitted to drinking 4 or 5 beers in the hour before the accident.  Although he had his helmet with him he was not wearing it at the time of the accident.  He received a ticket for running the stop sign and not having a valid license in his possession.

6.  The applicant agreed to be retained on active duty beyond his normal term of enlistment pending resolution of his Physical Evaluation Board (PEB), and line of duty determination (LOD).

7.  A PEB, dated 8 August 1979, found the applicant was not medically fit for retention due to the partial amputation of his left foot.  It noted that an LOD determination was pending.  Pending completion of the LOD he was considered in the line duty - yes with a 40 percent disability evaluation.  The form includes the statement that the recommendation of the PEB findings and recommendations would be of no effect if the pending LOD determination was "no."  The applicant concurred with the PEB findings.

8.  On 4 January 1980, the PEB findings were reviewed and modified to show the accident was not in the line of duty and the accident and disability were due to the applicant's own intentional misconduct.  He was to be separated without entitlement to disability benefits.

9.  The applicant was honorably discharged on 31 January 1980 for a physical disability without severance pay.

10.  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.  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. 

	b.  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.

	c.  Paragraph 4-10b states an injury incurred as the "proximate result" of prior and specific voluntary intoxication is incurred as the result of misconduct.  A contributing cause is deemed proximate if it plays a material role in the victim’s injury.

	d.  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.

	e.  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.  

	f.  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.  

	g.  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 he received a partial amputation on his left foot while on active duty.  He was never informed or questioned about alcohol being the cause of his motorcycle accident and he had not been drinking prior to the accident.

2.  The applicant's injury was determined to have been not in the line of duty due intentional misconduct - alcohol-related incident.

3.  The applicant's contention that he was never informed or questioned about alcohol being the cause of his motorcycle accident and that he had not been drinking prior to the accident is belied by all of the evidence surrounding the accident as well as the PEB processing.

4.  There is no error or injustice in the applicant's separation for a physical disability without severance pay and a medical retirement is not warranted. 

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)                                         AR20100022015





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ABCMR Record of Proceedings (cont)                                         AR20100022015



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