IN THE CASE OF:	  

		BOARD DATE:	  30 May 2013

		DOCKET NUMBER:  AR20120019155 


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 widow of a deceased former service member (FSM), requests correction of her husband's record to show his death was in the line of duty (LOD).

2.  The applicant states other Soldiers whose circumstances surrounding their deaths were similar to her husband's death had their case considered to have been in the line of duty.  The FSM had dedicated his life to the Army, but he made one mistake that his children are now paying for.

3.  The applicant provides:

* three self-authored memoranda
* the FSM's Certificate of Death
* two DD Forms 1300 (Report of Casualty), both dated 3 July 2008
* a U.S. Army Enlisted Records and Evaluation Center (USAEREC) Form 3 (Statement of Service - Enlisted Personnel), dated 2 June 2008
* an 8-page LOD file provided the Freedom of Information and Privacy Office, U.S. Army Human Resources Command (HRC), Alexandria, VA, dated 9 January 2009
* three DA Forms 1059 (Service School Academic Evaluation Report), dated 3 August 2000, 17 July 2003, and 8 August 2003
* two DA Forms 2166-7 (Noncommissioned Officer (NCO) Evaluation Report) for the period August 2000 through July 2001 and August 2001 through October 2001 
* 
two DA Forms 1695 (Oath of Extension of Enlistment), dated
25 September 2003 and 13 January 2005
* a memorandum from HRC-Indianapolis, IN to the Defense Finance and Accounting Service (DFAS), subject:  Survivor Benefit Plan (SBP) Eligibility Information on Member Dying on Active Duty, pertaining to the FSM, dated 2 June 2008
* a Montgomery GI Bill election form
* a Servicemembers Group Life Insurance Election form
* two Classified Information Nondisclosure Agreements

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 FSM enlisted in the Regular Army on 26 March 1997 and he attained the rank/grade of sergeant first class (SFC)/E-7.  He had continuous active duty service until his death on 29 May 2008.  

3.  The LOD report indicates that on 25 May 2008, while on authorized leave over the 4-day Memorial Day weekend, the applicant and another Soldier were operating their all-terrain vehicles (ATV) at Alamo Lake State Park in
Wendon, AZ.  At approximately 1900 hours, another Soldier found the applicant unconscious (from a head injury) in the center of the roadway (the term used was dismounted from his ATV).  He was airlifted to the hospital and placed on life support.  The applicant passed away at 2134 hours on 29 May 2008.

4.  The civilian police report states the officer arrived on the scene after the emergency medical personnel had arrived and were preparing to evacuate the FSM.  The police officer interviewed the other Soldier who stated they had been riding together when he stopped to relieve himself.  The FSM passed him and when he remounted his ATV and proceeded to follow the FSM, he found the FSM lying in the middle of the road by his ATV.  He reported that he had moved the ATV out of the center of road to clear the traffic lane.  He also stated he and the FSM had been drinking prior to the accident.

5.  The police officer states the accident scene was an unimproved graded roadway and his review of the area around the scene was unrevealing.  He reported finding the ATV's throttle cable hanging from the right side of the fuel tank and the right handle grip was missing.  There were no skid marks or gouges in the roadway that might suggest how the FSM had become unseated from the ATV and injured on the pavement.  The police officer determined there were no eyewitnesses to the actual accident.

6.  In a supplemental report, the police officer stated that based on the nature of the FSM's reported injuries and his earlier review of the accident scene, it was his opinion that the ATV had rolled over the FSM after he had been dismounted from it on the roadway, thereby causing the fatal injuries.

7.  The 18 July 2008 Report of Investigation - LOD and Misconduct Status, reports the FSM was considered present for duty and according to regulations item 11 (Findings) is blank.  At item 19 (Appointing Authority - Reason and Substitute Findings) the appointing authority states:

* the laboratory results showed that at the time of hospitalization the FSM had a blood alcohol level of 159 milligrams/deciliter (mg/dL)
* the legal intoxication level in Arizona is 80 mg/dL
* the final diagnosis from the hospital was extreme intoxication
* the evidence is sufficient that to show the FSM's physical and mental faculties were impaired due to intoxication

8.  A 9 January 2009 HRC-Alexandria memorandum to DFAS states HRC had determined the FSM's accident was not in the line of duty and was due to his own misconduct.

9.  Army Regulation 600-8-4 (Line of Duty Policy, Procedures, and Investigations) 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.  It provides the following:

	a.  In determining whether a service member, their survivors, or family members are eligible for certain benefits, the Department of Veterans Affairs (VA) makes its own determinations with respect to an LOD.  These determinations rest upon the available evidence.  Usually this consists of those 

facts that have been officially recorded and are on file within Army, including reports and LOD investigations submitted in accordance with the provisions of this regulation.  Statutes governing these benefits generally require that disabling injury or death be service-connected, that means the disability was incurred or aggravated in the LOD (Title 38, U.S. Code, section 101).  The statutory criteria for making such determinations are in Title 38, U.S. Code, section 105.  Investigations can be conducted informally by the chain of command where no misconduct or negligence is indicated, or formally where an investigating officer (IO) is appointed to conduct an investigation into suspected misconduct or negligence.

	b.  A formal LOD investigation must be conducted in the following circumstances:  injury, disease, death, or medical condition that occurs under strange or doubtful circumstances; is apparently due to misconduct or willful negligence; or for an injury or death involving alcohol or other drug usage.

	c.  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 the LOD.  Such a person stands to lose substantial benefits as a consequence of his/her actions; therefore, it is critical that the decision to categorize injury, disease, or death as not in the LOD only be made after following the deliberate, ordered procedures described in this regulation.

	d.  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.

	e.  An injury or death incurred as the "proximate result" of prior and specific voluntary intoxication is considered to have been 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 that the Soldier's physical or mental faculties were impaired due to intoxication at the time of the injury, the extent of that impairment, and if the impairment was a proximate cause of the injury or death.  A contributing cause is deemed proximate if it plays a material role in the victim’s injury.

	f.  Items to be considered by the IO include but are not limited to both direct and indirect evidence; statements from any eyewitnesses, and military or civilian police accident reports.

	g.  Survivors of Soldiers who die on active duty have up to 6 years to appeal an LOD determination.

	h.  Appendix B, Rule 3 states any injury, disease, or death that results from incapacitation because of the abuse of drugs is not in the LOD.  It is due to misconduct.  This rule applies to the effect of the drugs 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.

	i.  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.

	j.  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.  A Soldier involved in an automobile accident caused by falling asleep while driving is not guilty of willful negligence solely because of falling asleep.  The test is whether a reasonable person, under the same circumstances, would have undertaken the trip without expecting to fall asleep while driving.  Unfitness to drive may have been caused by voluntary intoxication or use of drugs.

	k.  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 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 "not in the line of duty - due to misconduct" determination appears to have been based on the statement from another Soldier that the FSM had been drinking prior to the accident and that the FSM's high blood alcohol level showed the FSM was legally impaired at the time of the accident.

2.  If an injury or death is incurred as the "proximate result" of prior and specific voluntary intoxication it is considered to be incurred as the result of misconduct.  For intoxication alone to be the basis for a determination of misconduct with respect to a related injury or death, there must be a clear showing that the Soldier's physical or mental faculties were impaired due to intoxication at the time of the injury or death, the extent of that impairment, and if the impairment was a proximate cause of the injury or death.

3.  The investigating police officer stated it was his opinion that the fatal injuries reported to him by the FSM's wife were consistent with his opinion that the ATV had run over the FSM after he "dismounted" from it.

4.  While his statement may be true, it does not answer the questions of what caused the FSM to dismount or be dismounted from the ATV or why it would have run over him.  Additionally, there is no explanation for the damage to the throttle cable and the missing hand grip that were noted in the original report.

5.  Without other evidence to provide some other explanation, combining the officer's opinion with the damage to the ATV it is probable that the FSM rolled the ATV, he was thrown forward of it, and it rolled over him.  This would account for both the nature of the FSM's injuries and the damage to the ATV.

6.  Regulations state that while merely drinking alcoholic beverages is not misconduct, any injury or death caused by a Soldier operating a vehicle when in an unfit condition of which the Soldier was, or should have been aware, is not in the LOD.  It is due to his/her own misconduct.

7.  The applicant has not provided any evidence to raise a question of the cause of the accident being anything other than as a result of the FSM's intoxication and the finding of not in the LOD - due to his own misconduct is valid and appropriate.

8.  In view of the foregoing, there is an insufficient evidentiary 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)                                         AR20120019155



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ABCMR Record of Proceedings (cont)                                         AR20120019155



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