IN THE CASE OF:  

		BOARD DATE:  24 January 2013

		DOCKET NUMBER:  AR20120012250


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 correction of his DD Form 261 (Report of Investigation – Line of Duty (LOD) and Misconduct Status), dated 12 December 1974, to show his injuries occurred in the LOD instead of not in the LOD due to own misconduct.

2.  The applicant states:

* the LOD report, dated 12 December 1974, is incorrect
* at the time of the report, he was told "in the LOD" only applied to those injuries incurred during combat – had he been given the correct information, he never would have accepted the LOD status as written
* he was under the impression he didn't need to file charges against the man who shot him since he was also a service member and he thought the Army would take care of any necessary legal action
* the statements given by him were not a fair and accurate report since he was in the hospital, heavily sedated, and recovering from major surgery
* the LOD report and accompanying forms were completed when he was either in the hospital or home on convalescent leave
* when he returned to duty in December 1974, he was told by a commissioned officer that he needed to sign the LOD paperwork so it could be completed – he did as he was told

3.  The applicant provides the following account of the events of 1 November 1974:

* he and another individual were playing pool together
* after they had played 8-10 games – of which he won them all – the other individual became angry and began fighting with him
* the other individual beat him, broke his nose, and bloodied his face
* after a sergeant broke up the fight, the sergeant helped him outside to leave
* it took awhile to stop the bleeding and while he was preparing his motorcycle to travel home, the other individual came out of the bar and shot him in the buttocks
* at that split second, he remembered he had his pistol in the side cover of his motorcycle from shooting practice a few days earlier
* instinctively he grabbed for his gun and when he turned and saw the individual raise his weapon to fire again, he shot him six times
* he knew he wouldn't be able to drive, so he headed to the hospital on foot
* he was not drunk and no tests were administered at the time to determine his level of intoxication
* his gun saved his life – he used it for self-defense
* he didn't do anything wrong – the other individual shot him first when he had his back turned away and he was just defending himself against further injury or death
* he has since learned he contracted hepatitis C and he believes he contracted it from the blood transfusions he received after being shot

4.  The applicant provides no additional evidence in support of his request.

CONSIDERATION OF EVIDENCE:

1.  The applicant enlisted in the Regular Army on 22 November 1972.  He completed initial entry training and was awarded military occupational specialty 11E (Armor Crewman).  Upon completion of his initial entry training, he was assigned to Troop F, 2nd Squadron, 3rd Armored Cavalry Regiment, at Fort Bliss, TX.

2.  On 1 November 1974 at approximately 0030 hours, the applicant was involved in a gun fight in which he sustained gunshot wounds to his abdomen and buttocks.  According to the DA Form 2800 (U.S. Army Criminal Investigation Command (CID) Report of Investigation), as investigated by the El Paso Police Department (EPPD), the following facts are noted:

* at approximately 0030 hours on 1 November 19974 at the High Tide Bar in El Paso, TX, the applicant and another Soldier became involved in an argument over a pool game
* the applicant departed the bar followed by the other Soldier, at which time they started shooting at each other with pistols
* the applicant was armed with a .22 caliber pistol and the other Soldier was armed with a .25 caliber pistol
* the applicant sustained two gunshot wounds in his buttocks and the other Soldier sustained two gunshot wounds in his left chest and one gunshot wound in his left neck
* both were admitted to the trauma ward at William Beaumont Army Medical Center (WBAMC), Fort Bliss, TX, where they subsequently recovered from their wounds

3.  A DA Form 2173 (Statement of Medical Examination and Duty Status) was completed by the attending physician or hospital patient administrator at WBAMC.  In item 11 (Medical Opinion), the attending physician opined that the applicant was not under the influence of alcohol or drugs at the time of his injury and his injury was incurred in the LOD.

4.  On 25 November 1974, the applicant's immediate commander completed his portion of the DA Form 2173 wherein he determined that a formal LOD investigation was required as the applicant's injury was considered to not have been incurred in the LOD.

5.  On 18 November 1974, an investigating officer (IO) was appointed to conduct an LOD investigation into to the applicant's injury.

6.  On 12 December 1974, the IO documented his investigation findings on a DD Form 261.

	a.  Item 9e (Basis for Findings – Intentional Misconduct or Neglect Was/Was Not the Proximate Cause) contains a checkmark in the "Was" block.

	b.  Item 9g (Basis for Findings – Remarks) contains the following remarks:

The enlisted member (EM) was found Not In Line Of Duty Due To Own Misconduct.  Statements by [Applicant], SSG C____, and PFC F____ support the fact that J____ [the other Soldier] and [Applicant] had been drinking and had been in an arguement [sic].  Although it cannot be proved who fired the first shot, this only reflects indirectly on the findings.  If we assume [Applicant] fired the first shot, the finding of Not In Line Of Duty Due To Own Misconduct is obvious.  However, if we assume that J____ fired the first shot, the same finding still applies.  [Applicant], as a reasonable man, could assume retaliation after the fight in the bar.  [Applicant] had brought a pistol with him that evening (see Exhibit D).  [Applicant] had been drinking while in possession of a firearm which it would seem, constitutes a disregard for personal safety.  Since the injury was attributable to a combination of a fight and drinking while in possession of a firearm; [Applicant] must be found Not In Line Of Duty Due To Own Misconduct under Rule #7 (rules of evidence).

	c.  Item 10 (Findings) contains a checkmark in the block indicating the applicant's injury was "Not in Line of Duty – Due to Own Misconduct."

7.  The IO's report contains several DA Forms 2823 (Sworn Statement) from individuals who were present during the altercation; however, neither the IO's report nor the accompanying CID Report of Investigation or sworn statements answer the question of who fired first or whether the applicant was the aggressor or whether he acted in self-defense.

8.  On 6 January 1975, the appointing authority approved the IO's findings.

9.  On 28 January 1975, the reviewing authority approved the finding of not in the LOD due to own misconduct on behalf of the Secretary of the Army.

10.  On 21 November 1975, the applicant was honorably released from active duty and transferred to the U.S. Army Reserve.

11.  Army Regulation 600-33 (LOD Investigations), the regulation in effect at the time, established the policy and procedures for investigating the circumstances under which the disease, injury, or death of a member was incurred and provides principles and considerations in determining the LOD status.

	a.  Paragraph 1-4e states formal LOD investigations are detailed investigations ordered by a special court-martial or higher authority, or demanded by the individual(s) affected by the LOD finding, to ascertain the facts surrounding the death, injury, or disease of a member.  This investigation consists of a DD Form 261 to which is appended documents necessary to support the findings and/or provide a complete investigation.

	b.  Paragraph 1-4h states a finding of "not in the LOD due to own misconduct" is a finding for an injury or disease which was not in the LOD and was the result of a member's intentional misconduct or willful neglect.

	c.  Paragraph 1-5i states the IO is responsible for investigating the circumstances, assimilating and evaluating the evidence, making LOD findings, and completion of the LOD Report of Investigation (DD Form 261) surrounding a disease, injury, or death.  The IO must be a disinterested, experienced commissioned officer, senior to the person subject to the investigation, and designated by the appointing authority.

	d.  Paragraph 2-5c provides that injuries resulting from the intemperate use of alcohol are due to misconduct when there is substantial proof that the intemperate consumption of alcohol was the proximate cause of the injury.  When alcohol is concerned in an investigation of an injury, the IO must thoroughly explore the part it played.  Pertinent questions which should be resolved in the investigative file are the amount and type of liquor consumed, the period of time during which it was consumed, the outward appearance of the person before the incident (staggering, belligerent, unable to speak rationally, etc.), and whether the user was a habitual drinker.

	e.  Appendix C states in every case where there is a formal investigation, the ultimate function of that inquiry is to ascertain where there exists substantial evidence of misconduct so as to rebut the presumption of "in the LOD."  Rule 7 of appendix C provides that injury incurred as the result of an act of wrongful aggression or of voluntary participation in a fight or similar encounter where one is at least equally at fault with his adversary in starting or continuing the altercation, is incurred not in the LOD and due to misconduct.  An injury received by a member in an affray in which he is the aggressor is the result of his own misconduct.  The rule does not apply where a person is the victim of an unprovoked assault and he sustains injuries in an attempt to defend himself.  However, provocative actions or language by the member used under circumstances wherein a reasonable man would anticipate retaliation therefore is evidence of a reckless or wanton disregard for personal safety and injuries proximately resulting there from are attributable to misconduct.  Where an adversary uses excessive force or means that could not reasonably have been foreseen under the circumstance, the injury is not considered as having been proximately caused by misconduct.  However, except as it may be warranted in the exercise of self-defense, for a member to persist in a fight or other encounter after his adversary produces a dangerous weapon is an act in wanton disregard for safety and constitutes willful neglect.

12.  Army Regulation 15-185 (Army Board for Correction of Military Records (ABCMR)) governs the operation of the ABCMR.  Paragraph 2-9 states 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.  The applicant contends his injury should be deemed in the LOD instead of not in the LOD due to own misconduct.

2.  The evidence of record shows the applicant was involved in an altercation that began as a fistfight and ended as a gunfight.  The resulting investigation revealed that both Soldiers involved had consumed alcohol and were intoxicated.  Both Soldiers traded gunfire and both Soldiers sustained gunshot wounds.

3.  Neither the IO's report nor the accompanying CID Report of Investigation or sworn statements answer the question of who fired first or whether the applicant was the aggressor or whether he acted in self-defense.  The applicant contends the fact that he was shot in the buttocks suggests he was turned away from the fight and, therefore, he did not fire first.  This contention is rejected given that the evidence does not clearly indicate he received his gunshot wounds before any other gunfire was traded.  He may have initiated and/or traded gunfire with the other Soldier prior to receiving his gunshot wounds.

4.  The evidence suggests the applicant was at least equally at fault in starting or continuing the altercation with the other Soldier.  Based on all the facts of the case, the approving and reviewing authorities concurred with the IO's findings and determined the findings were not in the LOD due to the applicant's misconduct and in accordance with Army Regulation 600-33, appendix C, rule 7.

5.  The evidence of record also shows the applicant's LOD investigation was accomplished in compliance with applicable regulations then in effect with no indication of procedural errors which would have jeopardized his rights.

6.  In view of the foregoing, there is no basis for granting the applicant's requested relief.

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)                                         AR20090021983



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ABCMR Record of Proceedings (cont)                                         AR20120012250



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