DEPARTMENT OF THE NAVY
BOARD FOR CORRECTION OF NAVAL RECORD
S
2 NAVY ANNE
X
WASHINGTON DC 20370-510
0
JRE
Docket No: 7108-00
14 November 2001
This is in reference to your application for correction of your naval record pursuant to the
provisions of title 10 of the United States Code, section 1552.
A three-member panel of the Board for Correction of Naval Records, sitting in executive
session, considered your application on 20 September 2001.
Your allegations of error and
injustice were reviewed in accordance with administrative regulations and procedures
applicable to the proceedings of this Board. Documentary material considered by the Board
consisted of your application, together with all material submitted in support thereof, your
naval record and applicable statutes, regulations and policies.
After careful and conscientious consideration of the entire record, the Board found that the
evidence submitted was insufficient to establish the existence of probable material error or
injustice.
In this connection it substantially concurred with the
The Board was not persuaded that the line of duty(LOD)/misconduct determination made in
your case is erroneous or unjust.
rationale of the Director, Naval Council of Personnel, contained in his letter to the President,
Physical Evaluation Board (PEB) of 28 October 1998, a copy of which is attached. In
addition, the Board concluded that there is no reliable evidence which is probative of your
contention that you were a passenger in the vehicle in which you were injured, rather than
the driver, or that you were not intoxicated. The affidavits of Mr. Langenheim dated 14 July
1997 and 26 January 1998 were not considered credible, as they are controverted by
evidence contained in the line of duty investigation report (LODI). The results of the
polygraph examination you underwent on 31 May 1997 were of no probative value because
such results are unreliable in general, and because the relevant questions posed to you are
vague and subject to personal interpretation. For example, it is possible that you showed no
deception when you gave a negative response to the question “Are you the person who drove
Greg’s car on December 16, 1996” because the car belonged to Greg’s wife rather than him,
or because you were not the only driver of that vehicle on that date. The Board rejected the
-
-
determination of the hearing panel of the PEB of 21 May 1988, that the LODI was
“...INSUFFICIENT AND POSSIBLY INCORRECT ”, because it is unsubstantiated, and
contrary to the great weight of the available evidence which indicates that you were injured
as a result of your operation a motor vehicle in a grossly negligent manner, i.e., while
intoxicated and at a rate of speed excessive for prevailing conditions. The Board noted that
there is no requirement that a formal chain of custody be maintained in order for the results
of blood alcohol testing to used in making LOD/misconduct determinations, and it could not
find a valid basis for questioning the reliability of the blood alcohol testing results which
establish that you were severely intoxicated at the time in question.
It was not persuaded
that you were denied any substantial right during the course of the LODI or your disability
evaluation, or that the burden of proof was improperly shifted to you at any point during
those proceedings.
In view of the foregoing, your application has been denied. The names and votes of the
members of the panel will be furnished upon request.
It is regretted that the circumstances of your case are such that favorable action cannot be
taken. You are entitled to have the Board reconsider its decision upon submission of new
and material evidence or other matter not previously considered by the Board. In this
regard, it is important to keep in mind that a presumption of regularity attaches to all official
records. Consequently, when applying for a correction of an official naval record, the
burden is on the applicant to demonstrate the existence of probable material error or
injustice.
Sincerely,
W. DEAN PFEIFFER
Executive Director
Enclosure
.
28 October 9
8
From:
To:
Subj:
Director,
. President,
Naval Council of Personnel Boards
Physical Evaluation Board
DETERMINATION ICO
Ref:
(a) SECNAVINST
1850.4C
quest,
motor vehicle accident,
I have reviewed in detail all data associated
1 .
wit
investigation, the Hearing Panel Bethesda report, and all pertinent
attorney correspondence.
reference (a), I have given significant consideration to your
request to reverse
determination that
line of duty due to his own misconduct.
As set forth in paragraph 2085 of
injuries were not incurred-in the
courts-martial convening authority's
to include the line of duty
t
and
Paragraph
Additionally,
my legal advisor has reviewed the line of duty
other documents submitted, as well as the
2.
investigation
determination and rationale therefor, and provided me written
advice.
determination if I
credibilitv of the determination.
whether the field commander's determination was
capricious;
‘applicable statutes and regulations.
unsupported by substantial evidence;
2085~ requires that I
reasonable
The standard for my review is
may direct a different
arbitrary and
or contrary to
challenqe
cause to
have
the
I found the line of duty misconduct investigation to be
camp
from
the
3.
thorough and
circumstances of
investigating
endorsements
exercising ge
considerable
concluded that
own misconduct.
as possible under the facts and
motor
accident.
vehicle
investigation,
and
rt of
The
the
officer
and
the
appear to reflect
convening
-martial
analysis of
authority
authority
injuries were incurred as a result of his
the evidence,
and each
4.
I considered the affidavits
submitted by
civilian friend of more than 15
ccident vehicle.
I considered the
attorney,
to place
used to extricate the two occupants,
and EMT notes detailing the technique and
Crash Truck Report
equipment
medical procedures rendered.
a
sustained vis-a-vis location in the accident vehicle at the time of
impact with the trees.
and emergency
I used my own experience as
Finally,
officer to
aviation
evaluate
trained
safety
the
injuries
-
.
Subj:
DETERMINATION
ICC
In consideration of the foregoing, I have no reasonable cause
5.
to challenge the credibility of the determination.
record suggests the field commander's determination was arbitrary
and capricious;
applicable statutes and regulations.
unsupported by substantial evidence; or contrary to
Nothing in the
Consequently,
6.
unchanged.
the line of duty misconduct determination remains
..
.
-
..
NrOll
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