IN THE CASE OF:	

		BOARD DATE:	  22 August 2013

		DOCKET NUMBER:  AR20120019041 


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), dated 8 October 1987, to show the findings were "In line of duty (LOD)" instead of "Not in LOD - Due to Own Misconduct." 

2.  The applicant states:

* the LOD investigation (LODI) was initiated on 8 May 1987, while he was on active duty in the Active Guard Reserve (AGR) program 
* he was initially charged with negligent homicide, but the charges were dropped  based on his blood alcohol level being .03 grams per 100 milliliters (MLS)
* prior to his release, he had not reviewed his military record and was unaware of any changes and thought the LOD was taken care of
* the accident occurred on 8 May 1987 and he last saw the Staff Judge Advocate (SJA) on 11 May 1988
* the reviewing and final authority disregarded the blood alcohol test and changed the findings to "Not in LOD - due to own misconduct" 8 months later 
* the DD Form 261 stated personal opinion rather than evidence
* he did not know the findings were changed to "Not in LOD - due to own misconduct" due to being diagnosed with post-traumatic stress disorder
* no evidence of misconduct or negligence was proven
* he thought Army Regulation (600-8-4) (LOD Policy, Procedures, and Investigations) indicated the LODI should be completed within 75 days
* the highway patrol indicated the vehicle he drove was the contributing factor of the accident and the military police agreed
* neither the state of New Mexico nor the military police previously cited the vehicle as unsafe
* the Department of Veterans Affairs denied his application due to his willful misconduct

3.  The applicant provides:
   
* His DD Form 214 (Certificate of Release or Discharge from Active Duty)
* a three-page self-authored statement
* DD Form 261 and allied documents
* a crime laboratory report

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.  Army Regulation 600-8-4 (LOD Policy, Procedures, and Investigations) was established as a Department of Army regulation effective 15 May 2004 and it was not applicable to this LODI.  Therefore, Army Regulation 600-8-4 will not be discussed any further in this record of proceedings. 

3.  The applicant's record shows he enlisted in the New Mexico Army National Guard (NMARNG) and was ordered to active duty in the AGR program on 
30 September 1986.

4.  He submitted a letter from the Texas Department of Public Safety (DPS), Crime Laboratory, dated 12 May 1987, which shows a blood sample submitted on 11 May 1987 showed the applicant's blood alcohol level was .03 grams per 100 MLS.

5.  His DD Form 261 dated 8 October 1987 shows:
	a.  the investigating officer (IO) found:

		(1)  on 8 May 1987, after leaving a social event, the applicant and two Soldiers were involved in a single-car vehicle accident which resulted in the death of one passenger and serious injuries to another, besides himself;

		(2)  the applicant, under the advice of his civilian attorney, did not provide exact details to the IO;

		(3)  civilian charges of involuntary manslaughter and driving while
intoxicated (DWI) were brought against the applicant; and

		(4)  the State and military police stated that for unknown reasons the
vehicle, driven by the applicant, failed to stay on the single lane driving southbound, cutting back into the northbound lane, and overturned twice, end over end.

	b.  the IO concluded intentional misconduct/neglect did not occur and the accident was in the LOD due to:

		(1)  the medical examination and duty status points out "injury
occurred in LOD";

		(2)  direct contact with the provost marshal stated no charges were
pending against the applicant;

		(3)  the DWI charge was dropped;

		(4)  the district attorney's office had no record from the Texas
DPS on their charge, and as a result, did not pursue charges;

		(5)  the officer who charged the applicant was told the district attorney
was going to file charges;

		(6)  there was an insufficient amount of legal evidence to charge the applicant with intentional misconduct/neglect; and

		(7)  an unfortunate accident took place and the findings indicate the
applicant was in the LOD and through no intentional misconduct or neglect on his part.


   c.  a memorandum from the SJA, dated 11 May 1988, which stated:

		(1)  the LOD determination was reviewed and considered to be legally sufficient;

		(2)  the SJA concurred with the reviewer's determination which finds the facts warranted a "Not in LOD - due to own misconduct" finding;

		(3)  this opinion differs from that of the IO;

		(4)  there was evidence of a blood alcohol level of .057 grams per
100 MLS followed by a later reading of 0.03 grams per 100 MLS; and

		(5)  it can reasonably be inferred that the applicant's blood alcohol was higher at the time of the accident and dissipated over time.

	d.  on 13 May 1988, the reviewing authority disapproved the findings of the IO due to:

		(1)  (the applicant) driving under the influence of alcohol with a blood alcohol level of .057 grams per 100 MLS;

		(2)  (the applicant) was driving an unsafe and modified vehicle which
was considered unsafe and a contributing factor to the accident; and

		(3)  the DA Form 2173 (which is not available to this Board), block 13 was
altered with corrections, alterations, and was not dated or initialed.

	e.  on 29 June 1988, the Chief, Army National Guard Bureau, Washington, DC approved the "Not in LOD - Due to Own Misconduct."

6.  On 29 September 1989, the applicant was honorably released from active duty due to the expiration of term of service after completing 3 years of active service.

7.  During the processing of this case, an advisory opinion was obtained from National Guard Bureau, Office of the Chief, Personnel Policy Division.  The advisory official recommended administrative relief for the applicant and stated:

	a.  The applicant was attending a social outing with two other Soldiers in his unit (the NMARNG) in May 1987.  The Soldier who drove the applicant 


and the third Soldier to the outing indulged in too much alcohol and passed his keys to the applicant.  While driving from the event, the applicant crossed into the other lane, drove into the soft sandy shoulder, overcompensated on his correction, and the vehicle overturned twice, end to end.  As a result of the accident, one of the Soldiers was killed.

	b.  The initial IO found the applicant's injuries to be in the line of duty.  The Reviewing Authority disagreed with those findings, overturned the results and documented the applicant's injuries as not in LOD due to own misconduct.

	c.  The reviewing authority's findings were due to the applicant having an alleged blood alcohol level of .057 percent and driving an unsafe vehicle that that was modified and considered unsafe.

	d.  The official crime lab results shows the applicant's blood alcohol level to be .03 percent and there is no documentation included in the packet, nor did the State provide any documentation, to suggest otherwise.

e.  The vehicle the applicant was driving appeared to have been modified, but was a legally-registered vehicle.  Police reports state the modification was a contributing factor to the accident, but the report does not suggest the driver also contributed.  The police report further states the vehicle had a removable cab cover which had been removed at the time of the accident.  All three occupants were not wearing seat belts and all three were thrown from the vehicle.

	f.  The other two occupants' injures and the one Soldier's death were found to be in the LOD.  By the reviewing authority overturning the initial findings of in the LOD for the applicant, it suggests intentional misconduct on his part using alcohol as the contributing factor.

	g.  With the crime lab results documenting .03 percent blood alcohol, the comments made by the legal reviewer suggesting alcohol was the factor appear to be based on an assumption and an attempt to place blame for a tragic accident.

	h.  With the police stating the vehicle modification as a contributing factor along with the blood alcohol of .03 percent and most importantly, the State of Texas dropping all criminal charges, it appears the applicant lost control of the vehicle while over compensating.

	i.  In October 1987, the original IO concluded, "Intentional Misconduct/
Neglect did not occur and accident was in the LOD."  This investigation was completed in October of 1987.
	j.  In May of 1988, 1 year after the accident, the reviewing authority and the SJA for the NMARNG came to the conclusion of "Not in LOD - due to own misconduct."  The statements suggest there were two blood alcohol tests, one suggesting a blood alcohol level at .057 and a second from the crime lab documenting his alcohol blood level at .03 percent.  There was no document in the packet showing a .057 percent blood alcohol level and requests to the State to forward the document went unanswered.

	k.  It stands to reason: if the applicant's blood alcohol results came back as .057 percent the authorities would have charged him with driving under the influence as well as criminal negligent homicide.

	I.  Recommend the LOD determination results be documented as "In the LOD - Not Due to Own Misconduct."

8.  On 10 May 2013, the applicant concurred with the advisory opinion.

9.  Army Regulation 600-8-1 (Army Casualty and Memorial Affairs and LOD Investigations), in effect at the time, prescribed the policies and procedures for investigating the circumstances of the disease, injury, or death of a Soldier and provides standards and considerations used in determining LOD status.  It also provides the reasons for conducting 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 Department of Veterans Affairs.  This document further provides, in pertinent part, that an adverse LOD determination is an administrative determination and not a punitive or judicial action.  Disciplinary and other administrative actions, if warranted, shall be taken independently of any LOD determination.  This regulation also states in:

	a.  Paragraph 39-1 (General) of the LODI regulation provides, in pertinent part, 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 line of duty."

	b.  Paragraph 39-2 (Requirements of LOD Investigations) LODIs are conducted essentially to arrive at a determination as to 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 investigation may or may not be required to make this determination.
	c.  Paragraph 39-5 (Standards applicable to LOD determinations) of the LODI regulation provides, in pertinent part, "injury or disease proximately caused by the member's intentional misconduct or willful negligence is "Not in LOD - due to own misconduct."

	d.  Paragraph 40-3 (Evidence collection) provides, in pertinent part, 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."

	e.  Paragraph 41-10 (Intoxication and drug abuse) of the LODI regulation provides, in pertinent part, "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."

	f.  Appendix B (Rules Governing LOD and Misconduct Determinations) of the LODI regulation states 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.)

10.  Rule 1 of Appendix B provides that "injury, disease, or death directly caused by the individual's misconduct or willful negligence is not in 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 line of duty; 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."

11.  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 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."


12.  Rule 4 of Appendix B provides, in pertinent part, that "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."

13.  The Glossary of the LODI regulation states:

	a.  "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."

	b.  A "preponderance of evidence is 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."

	c.  "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."

	d.  "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 LOD - due to own misconduct" determination."

	e.  Simple negligence is "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 be [sic] simple negligence is in LOD unless it existed prior to entry into the Service or occurred during a period of AWOL (except when the Soldier was mentally unsound at the inception of the unauthorized absence)."

	f.  "A conscious and intentional omission of the proper degree of care that a reasonably careful person would exercise under the same or similar circumstances in [sic] 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.  Notwithstanding the advisory opinion, the evidence submitted by the applicant shows he consumed alcohol prior to accepting the keys to an illegally modified vehicle from another Soldier who determined he was too intoxicated to drive.  The applicant's conduct demonstrated 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.  

2.  The applicant states he was unaware of the LOD being changed to not in LOD.  However, by his own admission, he last saw the SJA on 11 May 1988, the same day the SJA concurred with the Reviewing Authority's determination of "Not in LOD." 

3.  The applicant's contention that the initial alcohol level determination was not admissible and the second blood alcohol test was within the legal limits and therefore resulted in the charges being dropped by local authorities is not applicable in the conduct of an LODI and determination.  The LODI determination is not governed by the standards of local law, rather the LODI must be conducted and completed in accordance with the Army regulatory guidance and a LOD determination is not binding on the issue of guilt or innocence of the Soldier in any separate disciplinary action.

4.  The evidence submitted by the applicant shows that based on a blood test he had a heightened blood alcohol level (i.e., .057 and .03 percent).  As a result, there is a presumption that the applicant was in an unfit condition to drive (i.e., Rule 8 of Appendix B, Army Regulation 600-8-1) and that his willful negligence was the proximate cause that produced his injuries.  Moreover, the LODI regulation 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.  Regardless of the reason(s) (i.e., 

consumption of alcohol and/or an unsafe modified vehicle), the applicant demonstrated willful negligence and a disregard for the foreseeable consequences when he decided to drive and, as a result, was involved in a single-car vehicle accident.  Therefore, in view of the foregoing, the available evidence supports a "not in LOD - due to own misconduct" determination.

5.  The LODI findings must be supported by substantial evidence and by a greater weight of evidence than supports any different conclusion.  The evidence must show that it is more likely than not that the IO's findings accurately document how the disease, injury, or death occurred.  This standard of proof is based on a "preponderance of evidence," and is less demanding than the "beyond a reasonable doubt" standard required in criminal proceedings.  There is no indication of procedural errors by the IO which would tend to have substantially jeopardized the applicant's rights.  Based on all the facts of the case, the approving and reviewing authorities non-concurred with the IO's findings and determined the findings were not in the LOD due to the applicant's own misconduct.

6.  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 upon 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.

7.  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 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)                                         AR20120019041



2


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1