IN THE CASE OF:	  

		BOARD DATE:  19 July 2012

		DOCKET NUMBER:  AR20110020559 


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, the mother of the son of a deceased former service member (FSM), requests correction of the FSM's DD Form 261 (Report of Investigation - Line of Duty and Misconduct Status), dated 26 November 2008, to show his death was "in line of duty" instead of "not in line of duty - due to own misconduct."

2.  The applicant states:

* the investigating officer (IO) did not conduct a thorough investigation into the FSM's death
* it appears the IO made his decision based on hearsay information told to the police officer at the scene of the accident
* the IO stated in his findings that there was no toxicology examination and that is incorrect; additionally, the IO stated he did not interview any witnesses
* the police report did not say alcohol was a factor in the accident's cause

3.  The applicant provides the following documents:

* DD Form 2790 (Custodianship Certificate to Support Claim on Behalf of Minor Children of Deceased Members of the Armed Forces)
* a copy of the applicant's State of Montana driver license
* State of Montana, Lincoln County, birth certificate establishing the applicant as the mother of the FSM's son
* DA Form 2173 (Statement of Medical Examination and Duty Status)
* Memorandum, Departments of the Army and the Air Force, Virginia Army National Guard (VAARNG), Headquarters, 91st Troop Command, dated 26 November 2008, subject: Appointment as IO
* Police Crash Report
* Report of Investigation by Medical Examiner/Investigator, Commonwealth of Virginia, Office of the Chief Medical Examiner
* DD Form 261
* Memorandum, U.S. Army Human Resources Command (HRC), Alexandria, VA, dated 12 January 2009, subject: Line of Duty (LOD) Determination
* Certificate of Analysis, Commonwealth of Virginia, Department of Forensic Science
* Memorandum, HRC, Alexandria, VA, dated 28 July 2009, subject: Request for Autopsy and Toxicology Results for Specialist (SPC) [FSM]
* Memorandum, Departments of the Army and the Air Force, National Guard Bureau (NGB), Arlington, VA, dated 4 August 2009, subject: LOD Determination [FSM]
* Letter, HRC, Alexandria, VA, dated 23 June 2010
* Memorandum, Departments of the Army and the Air Force, Joint Force Headquarters – Montana, Montana Army National Guard (MTARNG), dated 28 July 2011, subject: LOD Appeal [FSM]
* Memorandum, HRC, Fort Knox, KY, dated 6 September 2011, subject: LOD Appeal Review for SPC [FSM]

CONSIDERATION OF EVIDENCE:

1.  The FSM enlisted in the VAARNG on 7 October 2004.  He entered initial active duty for training on 6 February 2005, completed training and was awarded military occupational specialty (MOS) 63B (Wheeled Vehicle Mechanic), was released from active duty on 8 July 2005, and returned to the control of the VAARNG.

2.  On 4 January 2007, the FSM was mobilized and entered active duty in support of Operation Iraqi Freedom.  He deployed to Iraq from 3 July 2007 through 30 January 2008, and on 28 February 2008, he was released from active duty and returned to the control of the VAARNG.  

3.  A DD Form 1300 (Report of Casualty) shows that on 7 September 2008 the FSM entered active duty for support.



4.  On 25 November 2008, at approximately 1530 hours, the FSM was involved in a single vehicle motorcycle accident in Richmond, VA.  The preliminary Richmond Police Crash Report indicated the following:

* the FSM was travelling eastbound when he struck the right side of his motorcycle on the curb line and lost control
* the motorcycle overturned and slid along the roadway on its left side
* the FSM had consumed alcohol prior to the accident; however, it was unknown whether he was impaired

The crash report does not indicate whether or not the FSM's driver license was in good standing.  

5.  The FSM was transported by emergency medical service (EMS) personnel to the Medical College of Virginia (MCV) at Virginia Commonwealth University, where at approximately 1740 hours, he was pronounced dead.

6.  A DA Form 2173 was completed by the attending physician or hospital patient administrator at MCV.  

* Item 11 (Medical Opinion) of this form shows the FSM was determined to be not under the influence of alcohol or drugs at the time of his accident, and his accident was incurred in the line of duty
* Item 13 (Blood Alcohol Test Made) contains a checkmark in the "No" box
* Item 31 (Formal Line of Duty Investigation Required) contains a checkmark in the "Yes" box
* Item 32 (Injury is Considered to Have Been Incurred in Line of Duty) contains a checkmark in the "Yes" box

7.  On 26 November 2008, an autopsy was conducted by a medical examiner at Richmond, VA, who determined the cause of death as blunt force injury to the FSM's torso.  The Report of Investigation by Medical Examiner/Investigator further details the circumstances surrounding the FSM's death:

* the FSM was witnessed to be driving close to the curb when he lost control of his motorcycle
* the motorcycle struck a pole, causing the FSM to fall from the motorcycle
* upon the arrival of EMS, the FSM was found to have no motorcycle endorsement to his driver license, and he admitted to EMS he had consumed alcohol prior to the accident
* 
the FSM became unresponsive in the ambulance and was immediately taken to the operating room, where he was found to have a shattered liver and a hole in the vena cava
* his death was pronounced in the operating room

8.  On 26 November 2008, an IO was appointed to conduct an LOD investigation into to the FSM's death.  Although the IO was instructed to conduct an informal investigation, this appears to be a typographical error because in accordance with Army Regulation 600-8-4, an IO is not appointed for an informal investigation and an informal investigation cannot be used in cases where injury resulted in death.  In the appointment memorandum, the IO is instructed to:

* collect at least 3 statements concerning the incident, documented in writing on DA Form 2823 (Sworn Statement), focusing on how and why the incident happened 
* document the investigation findings on a DA Form 1574 (Report of Proceedings by Investigating Officer/Board of Officers) – this document is not available for review
* make a clear and concise statement of his findings of fact based on the evidence gathered
* provide a brief account of the incident, the Soldiers involved, the extent of the injuries and damage and causes of the incident
* not make factual findings on his own that are not supported by statements from Soldiers or other evidence discovered during the investigation
* if someone was at fault, state this and explain why

Neither the FSM's available record, nor the evidence submitted in this case, contains the collected DA Forms 2823 or a DA Form 1574.

9.  On 26 November 2008, the IO completed his Report of Investigation – Line of Duty and Misconduct Status, documented on a DD Form 261.  

* Item 10e (Basis for Findings – Was Intentional Misconduct or Neglect the Proximate Cause) contains a checkmark in the "Yes" block 
* Item 10g (Basis for Findings – Remarks) contains the remark "Soldier overcorrected in turn on motorcycle and sustained internal injuries from accident"  
* Item 11 (Findings) contains a checkmark in the block indicating the accident was "Not in Line of Duty – Due to Own Misconduct" 

Despite the affirmative checkmark in item 10e, the IO's findings do not mention alcohol as a contributing factor in the accident.
10.  On 12 January 2009, the Chief, Casualty and Mortuary Affairs Branch, HRC, submitted a memorandum to the Defense Finance and Accounting Service, U.S. Military Retired Pay, London, KY, subject: LOD Determination.  In this memorandum, the Chief states the FSM's death was determined to be "Not in the Line of Duty – Due to Own Misconduct."

11.  On 26 January 2009, the Department of Forensic Science, Commonwealth of Virginia, released its Certificate of Analysis pertaining to the FSM's toxicology status following his accident and subsequent death.  This report reveals the results of the examination of one vial each of the FSM's subclavian and vitreous blood, received by the laboratory on 2 December 2008.  This examination found the FSM's subclavian blood contained .05 percent ethanol by weight by volume, and his vitreous blood contained .06 percent ethanol by weight by volume.

12.  On 28 July 2009, a memorandum was sent to the Office of the Armed Forces Medical Examiner in Rockville, MD, from HRC, subject: Request for Autopsy and Toxicology Results for SPC [FSM].  These results are not available for review.

13.  On 4 August 2009, the NGB published a memorandum summarizing the IO's findings and notification efforts by the FSM's chain of command.  This memorandum includes the statement "MCV hospital did not perform a toxicology examination on SPC [FSM]; therefore, a blood and alcohol level could not be determined or provided for this report."  It is noted that toxicology screening results were published by the Department of Forensic Science, Commonwealth of Virginia, on 26 January 2009.

14.  On 5 August 2009, the appointing authority approved the IO's findings.  Additionally, he included in item 19 (Appointing Authority – Reasons and Substituted Findings) of the DD Form 261 the remark "Based on the preponderance of evidence, the Soldier sustained injuries due to his own misconduct and not within the line of duty."

15.  On 6 August 2009, the reviewing authority approved the finding of "Not in Line of Duty: Due to Own Misconduct" on behalf of the Secretary of the Army.  Additionally, he included in item 20 (Reviewing Authority – Reasons and Substituted Findings) of the DD Form 261 the remark "Not in Line of Duty, Due to Own Misconduct.  Soldier admitted to the police officer at the scene of the accident that he had consumed a six-pack of beer prior to driving the motorcycle that he wrecked.  Soldier was also driving a motorcycle without a motorcycle permit and driving with a revoked driver license.  All of these facts indicate misconduct and directly contributed to his accident and subsequent death."
16.  The Director, NGB, Arlington, VA, approved the finding of "Not in Line of Duty: Due to Own Misconduct" on behalf of the Secretary of the Army.

17.  On 23 June 2010, the Casualty and Mortuary Affairs Operations Center, HRC, notified the FSM's son and the applicant that, after a careful review of the evidence contained in the LOD investigation, a final LOD determination was made that FSM was "Not in the Line of Duty" at the time of his death.

18.  On 28 July 2011, on behalf of the FSM's son and the applicant, members of the Office of the Staff Judge Advocate (SJA), MTARNG, appealed the LOD to HRC.  In this appeal, SJA members argued that the IO's findings were abbreviated, inaccurate, omitted key information, and generally left many important questions unanswered.  More specifically, they argue:

* the IO compiled no new information not found in the police and medical reports and misstated, ignored, or missed other vital pieces of evidence
* the record does not reflect the IO made any effort to contact the police officer who arrived on the scene to gain important details about what the FSM told him
* the IO made no attempt to interview emergency medical personnel who treated the FSM at the scene or in the ambulance
* the IO did not interview physicians, nurses, or other medical professionals at the hospital
* the IO misstated the availability of a toxicology report, and subsequently failed to ascertain key information regarding the significance of the report with regard to the FSM's level of alcohol impairment
* the FSM's DA Form 2173, completed by the attending physician or hospital patient administrator, indicates the FSM was not under the influence of alcohol and the injury was considered in the line of duty

19.  On 6 September 2011, HRC responded to the LOD appeal, wherein the Director, Casualty and Mortuary Affairs Operation Center, stated he was unable to render a decision regarding the request for LOD appeal.  This official noted that the submitted appeal argued the finding of "Not in Line of Duty" was not adequately supported by evidence presented in the case.  He further noted the submitted appeal did not present new evidence for consideration and only pointed to an inadequate and/or incomplete investigation which was information contained in the initial investigation.  The HRC official referred further appeal efforts to the Army Review Boards Agency.

20.  Army Regulation 600-8-4 (LOD Policy, Procedures and Investigations) prescribes policies, procedures, and mandated tasks governing line of duty of Soldiers who die or sustain certain injuries, diseases, or illnesses.  It provides standards and considerations used in determining the LOD status.   a. 
   a. 
	a.  Paragraph 2-3 states that 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.  Depending on the circumstances of the case, an LOD investigation may or may not be required to make this determination.  Sub-paragraph c states that investigations can be conducted informally by the chain of command where no misconduct or negligence is indicated, or formally where an investigating officer is appointed to conduct an investigation into suspected misconduct or negligence.  A formal LOD investigation must be conducted when injury, disease, or death occurs under strange or doubtful circumstances or is apparently due to misconduct or willful negligence, or when an injury or death involves the abuse of alcohol or other drugs.   a. 
   a. 
	b.  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.   a. 
   a. 
	c.  Paragraph 2-6e states the rules in appendix B will be considered fully in deciding LOD determinations.  These rules elaborate upon, but do not modify, the basis for LOD determinations.   a. 
   a. 
	d.  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 (emphasis added).Paragraph 4-13c states that for purpose of rendering an LOD determination in death cases, a Soldier’s death will be considered to have occurred in LOD unless the death was the result of the Soldier’s intentional misconduct or willful negligence.   a. 
   a. 
   a. 	e.  Paragraph 4-13 states that for purpose of rendering an LOD determination in death cases, a Soldier's death will be considered to have occurred in LOD unless the death was the result of the Soldier's intentional misconduct or willful negligence.
   a. 
	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.      1. 
      1. 
	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.  Rules 1, 2, 3, 4, 8, and 9 of this appendix are relevant to the FSM's death, which, in effect, state that an intoxicated Soldier, being so voluntarily and having committed misconduct while intoxicated, requires a finding of not in the LOD due to misconduct.

		(1)  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.      
      
      		(2)  Appendix B, Rule 2 states that mere violation of military regulation, orders, or instructions, or of civil or criminal laws, if there is no further sign of misconduct, is no more than simple negligence.  Simple negligence is not misconduct.  Therefore, a violation under this rule alone is not enough to determine that the injury, disease, or death resulted from misconduct. However, the violation is one circumstance to be examined and weighed with the other circumstances.

		(3)  Appendix B, Rule 3 states that death resulting from incapacitation because of the abuse of alcohol and other drugs is not in the LOD.  Furthermore, a Soldier's preexisting physical condition that caused increased susceptibility to the effects of the drug does not excuse the misconduct.
      
      		(4)  Appendix B, Rule 4 states that death resulting from incapacitation because of the abuse of intoxicating liquor is not in the LOD.  While merely drinking alcoholic beverages is not misconduct, one who voluntarily becomes intoxicated is held to the same standards as one who is sober and that intoxication does not excuse misconduct.
      
      		(5)  Appendix B, Rule 8 states that 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 the LOD.
      
      		(6)  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 the 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.

21.  Army Regulation 15-185 governs the operation of the Army Board for Correction of Military Records (ABCMR).  Paragraph 2-9 states that 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.

DISCUSSION AND CONCLUSIONS:

1. 1.  The applicant contends the FSM's death should be deemed "in line of duty," instead of "not in line of duty - due to own misconduct." 

2. 2.  The applicant and members of the MTARNG SJA acting on her behalf contend the IO did not conduct a thorough investigation into the FSM's death, omitted key facts, and otherwise failed to properly consider the FSM's level of intoxication prior to making an LOD determination.  

3.  They also challenge the IO’s use of hearsay.  Use of hearsay evidence is not prohibited in LOD investigations, and is perfectly acceptable where it has probative value and by all indications it represents the truth of the matters asserted.  In fact much of the evidence qualifies for exceptions to the hearsay rule.  The FSM’s admission to the police officer that he had consumed a six-pack of beer prior to driving is an admission against interest.  The police and medical reports are official documents rendered in the course of business.1. 
1. 
5. 4.  The evidence of record shows the FSM was involved in a fatal motorcycle accident on 25 November 2008 and his accident resulted from his failure to maintain control of his motorcycle.  The FSM admitted that he had consumed alcohol sometime prior to driving, and the toxicology report reflects he had a significant amount of alcohol in his system.   It is not unreasonable to conclude that his alcohol consumption played some contributing role in the accident.  Additionally, it appears the FSM was operating his motorcycle despite not having completed a motorcycle safety course or obtaining a motorcycle endorsement on his driver license, and his passenger vehicle license was suspended.

6. 5.  The applicant's and counsel's contentions are noted, but not supported by evidence.  It may appear as though the IO failed to properly investigate the circumstances surrounding the FSM's accident; however, such an appearance would be based on a review of the evidence as submitted by the applicant and counsel.  The lack of certain documents (i.e. sworn statements) does not prove they were not completed or do not exist.  Furthermore, the applicant and counsel have failed to present any evidence that refutes the LOD findings.  Therefore, a presumption of regularity is appropriate.

6.  Ultimately, the FSM was negligent in his decision to consume alcohol and operate a motor vehicle for which he was not properly trained or licensed.  Despite the absence of direct evidence as to the effect his level of blood alcohol had in the accident, the alcohol undoubtedly played a role in his ability to safely operate his motorcycle.  The FSM was operating a motorcycle on a straight paved road in the absence of adverse weather conditions, and yet lost control of the motorcycle.  While the toxicology report may leave room to debate whether or not he was "legally intoxicated," it is likely his consumption of alcohol contributed to the cause of the accident, especially when coupled with the fact he was operating a motorcycle when he had not been licensed to operate a motorcycle, which in itself constituted misconduct.  Additional licensing requirements for motorcycles are designed to ensure operators are sufficiently trained in the added skills and precautions required to safely operate motorcycles.  The FSM had not been certified as properly trained to operate a motorcycle and operated one in violation of State law.  Furthermore, the record indicates the FSM’s driver license for passenger vehicles was suspended.

7.  In accordance with Army regulations, when the evidence indicates the Soldier’s death is the result of his own voluntary action which constitutes misconduct, a finding of not in the LOD is required.

8.  In view of the foregoing, there is an insufficient evidentiary basis for granting relief in this case.

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)                                         AR20090021983



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ABCMR Record of Proceedings (cont)                                         AR20110020559



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