IN THE CASE OF:	  

		BOARD DATE:	  16 April 2014

		DOCKET NUMBER:  AR20130014744 


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 a deceased former service member (FSM), requests correction of the FSM's record to show on the DD Form 261 (Report of Investigation - Line of Duty (LOD) and Misconduct Status), dated 25 September 2012, the FSM's death was "In Line of Duty" instead of "Not in Line of Duty - Due to Own Misconduct."

2.  The applicant did not provide a statement in support of her application. 

3.  The applicant provides:

* a Certificate of Live Birth
* a Certificate of Death
* a letter from the Casualty and Mortuary Affairs Operations Center, U.S. Army Human Resources Command (HRC)

CONSIDERATION OF EVIDENCE:

1.  The FSM enlisted in the Regular Army (RA) on 19 October 2009 and he held military occupational specialty 92F (Petroleum Supply Specialist).  He was assigned to Company E, 2nd Battalion, 1st Aviation Regiment, Fort Riley, Kansas.  

2.  On 4 September 2012, a DD Form 261 was initiated and completed by various officials.  The form shows the FSM died in a single vehicle traffic accident.  The autopsy determined that the cause of death was severe, multiple, blunt force trauma of the head, neck, trunk, and extremities.  It was further noted that law enforcement officers reported they attempted to stop the FSM because he was driving erratically (swerving, failing to maintain a single lane, driving down the middle of the street, and that he did not have his lights on at 0240 hours).  When officers initiated their sirens, the FSM accelerated and pulled away from the officers at a high rate of speed.  He then lost control of the vehicle, hit a curb, and collided into a stationary vehicle and a tree.  The FSM was not wearing his seatbelt and was pronounced dead at the scene.  Toxicology report listed his blood alcohol content (BAC) at .237.

   a.  The LOD investigating officer remarked that the death was not in LOD and was due to own misconduct.  

	b.  The appointing authority approved the findings on 25 September 2012. 

	c.  The final approving authority approved the investigating officer's findings of "Not in Line of Duty - Due to Own Misconduct" on behalf of the Secretary of the Army.

3.  The FSM's record contains a DD Form 1300 (Report of Casualty), dated       14 November 2012.  This form is the final casualty report for the FSM.  The report shows while off duty, the FSM died in a non-hostile accident on 1 July 2012, which resulted in multiple blunt force trauma of the head, neck, and extremities. 

4.  The applicant provides a copy of a letter issued by the Director, Casualty and Mortuary Affairs Operations Center, HRC, dated 4 June 2013, which informed her that they were unable to consider her appeal of the LOD determination based on a lack of substantial new evidence.  

5.  Army Regulation 600-8-4 (LOD, Procedures, and Investigations) prescribes policies, procedures, and mandated tasks governing LOD determinations of Soldiers who die or sustain certain injuries, diseases, or illnesses.  

   a.  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.
   b.  Paragraph 4-13c states that for the 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 or the death occurred during a period of unauthorized absence.   

	c.  Glossary Section II defines simple negligence as 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.  

	d.  Glossary Section II defines willful negligence as a conscious and intentional omission of the proper degree of care that a reasonably careful person would exercise under the same or similar circumstances.  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. 

	e.  Appendix B (Rules Governing LOD and Misconduct Determinations) 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.

	f.  Appendix B, Rule 1, states 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 LOD; and (2) whether it was due to misconduct.

	g.  Appendix B, Rule 3 states injury, disease, or death that results in incapacitation because of the abuse of alcohol and other drugs is not in LOD.  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.  Any wrongfully drug-induced actions that cause injury, disease, or death are misconduct.

	h.  Appendix B, Rule 4 states injury, disease, or death that results in incapacitation because of the abuse of intoxicating liquor is not in LOD.
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.

   i.  Appendix B, Rule 8 states 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 LOD.  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. 
 
   j.  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 LOD.  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.  "Thrill" or "dare-devil" type activities are also examples when this rule may be applied.

6.  Army Regulation 15-185 (Army Board for Correction of Military Records (ABCMR)) governs the operation of the ABCMR.  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.  The ABCMR will decide cases on the evidence of record.  It is not an investigative body.

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends the FSM's record should be corrected to show on the DD Form 261, dated 25 September 2012, that the FSM's death was "In Line of Duty" instead of "Not in Line of Duty - Due to Own Misconduct."

2.  Army Regulation 600-8-4, Appendix B, Rule 8 states that injury, disease, 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 LOD.  It is due to misconduct.  The evidence of record clearly shows the FSM, without any regard to his personal safety or that of others, was highly intoxicated at the time of his motor vehicle accident which resulted in his death.  

3.  The investigating officer indicated this finding on the DD Form 261.  Both the appointing and approving authority approved this finding.  Additionally, a review by the Office of the Director, Casualty and Mortuary Affairs Operations Center, HRC, Fort Knox confirmed this finding.  

4.  The FSM's honorable service to the Nation is noted.  Additionally, the applicant's efforts in coping with this tragic accident are also noted.  However, the fact remains that he died as a result of his own misconduct.  The determination of "Not in Line of Duty - Due to Own Misconduct" is the appropriate conclusion.

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)                                         AR20130014744





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ABCMR Record of Proceedings (cont)                                         AR20130014744



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