BOARD DATE:	  18 December 2014

		DOCKET NUMBER:  AR20140008019 


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 reconsideration of his earlier request for correction of his records to show his disability was incurred in the line of duty versus not in the line of duty – due to own misconduct.

2.  The applicant states, in effect:

* he never jumped from the bridge
* he simply sat down and the electrical line arced out, striking him, and throwing him from the bridge
* he was not impaired at the time of the accident

3.  The applicant provides:

* self-authored statement, undated
* witness statement, dated 13 March 2014

CONSIDERATION OF EVIDENCE:

1.  Incorporated herein by reference are military records which were summarized in the previous consideration of the applicant's case by the Army Board for Correction of Military Records (ABCMR) in Docket Number AC92-06771 on 4 November 1992.

2.  The applicant's request for reconsideration was received considerably outside the requisite time frame of 1 year from the date of the original Board's decision, but he provided a new witness statement; thus, his case will be considered by the Board.

3.  The applicant enlisted in the U.S. Army Reserve Delayed Entry Program on 6 February 1986.  He was discharged from the U.S. Army Reserve on 26 June 1986 for immediate enlistment in the Regular Army (RA).  He enlisted in the RA on 27 June 1986.  After completing initial entry training, he was awarded military occupational specialty 72G (Automatic Data Telecommunications Center Operator).

4.  On 6 January 1987, following training, he was assigned to the 178th Signal Company in Germany.  On 16 August 1987, he sustained second and third-degree electrical burns over nearly half of his body surface when he came into contact with a high-voltage railroad electrical line.

5.  A DD Form 261 (Report of Investigation – Line of Duty and Misconduct Status) completed after the incident concluded the applicant's injury was not in the line of duty and was due to his own misconduct.  According to the investigation, the applicant fell into electrical cables while hanging off a train bridge in Heidelberg, Germany.  He and two fellow Soldiers who witnessed the event had been drinking alcoholic beverages prior to the accident.  The witnesses stated they were aware of the high-voltage cable but felt there was no danger.

6.  At the time of the investigation, one of the witness statements, made by B____ F____, indicated the applicant was sitting on the top of a railroad overpass wall with his legs dangling off the edge of the overhang.  He stated that although they had talked about how close the railroad cars were and they joked about being able to jump onto the train from the bridge, he was misquoted by the investigating officer about the applicant's intention to jump onto the railroad cars.

7.  Following extensive medical treatment in multiple medical treatment facilities for his severe injuries, a physical evaluation board (PEB) found the applicant physically unfit for duty on 12 February 1988.  On 15 November 1988, the applicant was honorably discharged under the provisions of Army Regulation 635-40 (Physical Evaluation for Retention, Retirement, or Separation) without entitlement to disability benefits, due to the line-of-duty determination.

8.  On 13 July 1988, the Total U.S. Army Personnel Agency (Provisional) Mortuary Affairs and Casualty Support Division denied the applicant's appeal of the PEB determination.  The report of investigation was found to be legally sufficient to support the finding of not in the line of duty – due to own misconduct.

9.  The applicant applied to the ABCMR appealing the line-of-duty determination.  On 27 July 1992, a legal review of the line-of-duty determination opined that the evidence was legally sufficient to support the finding that the applicant's injuries on 16 August 1987 were not in the line of duty – due to own misconduct.  It stated the applicant admitted in his appeal that he was trying to get down to the train; the walkway on the bridge over the train tracks had a handrail on one side and a barrier on the side closer to the train tracks; the evidence available to the investigating officer supported the conclusion that the applicant intended to reach the train below; each of the statements from the other witnesses supported that conclusion; the Soldier acted recklessly without regard to his own safety.  On 4 November 1992, the Board denied the applicant's request.

10.  The applicant provided a new witness statement from B____ F____, dated 13 March 2014, and a self-authored statement refuting the findings of the line-of-duty investigation conducted after the accident.  The new witness statement claims:

* he, another Soldier, and the applicant went to the Noncommissioned Officers Club
* he only bought the applicant one drink at the club
* the applicant diffused a confrontational situation that arose between the witness and another Soldier then suggested it was in their best interest to leave the club
* the three Soldiers left the club and began the couple-mile walk back to the barracks
* they arrived at the bridge crosswalk after a nearly mile-long walk
* while standing on the concrete ledge of the crosswalk they discussed what a great picture it would make in the daytime
* the applicant then sat down on the ledge overlooking the tracks
* the witness started walking toward the applicant then was temporarily blinded by a flash of light
* the witness did not know what occurred, but later learned that an electric arc from the high voltage power lines that operated the trains below struck the applicant
* the witness was unaware there were power lines underneath the bridge and is certain the applicant was likewise unaware
* after much effort, he located the applicant on top of one of the train boxcars just below the bridge with his clothes smoldering and ran down to provide aid while the other witness ran to get medical attention
* the witness informed the investigating officer that the applicant was not suicidal and that he did not jump onto the train


11.  The applicant's self-authored statement contends:

* he was at no time impaired on the night of the accident
* he only had one drink nearly 3 hours prior to the accident
* no blood alcohol test was conducted after the accident
* he and his fellow Soldiers were walking to the barracks when they noticed a bridge
* they made small talk about taking a daytime photograph of the view while moving to sit down
* while talking, an electric arc struck the applicant and knocked him from the ledge
* he had no idea the electric wires were there
* he did not want to jump or try to hurt himself in anyway
* the investigating officer pieced together the investigation without having all the facts which led him to conclude that willful misconduct was involved
* he did not perform a reckless and dangerous act by sitting on the edge of the bridge

12.  Army Regulation 600-8-4 (Line of Duty Policy, Procedures, and Investigations), appendix B (Rules Governing Line of Duty and Misconduct Determinations), rule 3, states, "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."

13.  Army Regulation 600-8-4, 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.  "Thrill" or "dare-devil" type activities are also examples of when this rule may be applied."

DISCUSSION AND CONCLUSIONS:

1.  The applicant's request for reconsideration of his application for correction of his records to show his disability was incurred in the line of duty versus not in the line of duty – due to own misconduct – was carefully considered.

2.  The report of investigation prepared at the time of the incident determined the injury was not in the line of duty and was due to the applicant's own misconduct.

3.  Regulatory guidance states that an injury resulting from the abuse of alcohol or reckless conduct, without regard for personal safety is not in the line of duty.  It is due to misconduct.

4.  The new witness testimony and self-authored statement are not sufficient evidence to overcome the testimony and evidence provided at the time of the incident, when the not in the line of duty – due to own misconduct – determination was made.

5.  Therefore, there is no basis for granting the 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 to amend the decision of the ABCMR set forth in Docket Number AC92-06771, dated 4 November 1992.



      ____________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)                                         AR20140008019



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ABCMR Record of Proceedings (cont)                                         AR20140008019



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