RECORD OF PROCEEDINGS AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS IN THE MATTER OF: DOCKET NUMBERS: BC-2007-04118 COUNSEL: HEARING DESIRED: NO ________________________________________________________________ _ APPLICANT REQUESTS THAT: His Article 15, Uniform Code of Military Justice (UCMJ), action imposed around October 2000, be set aside; and, the line of duty (LOD) determination for his automobile accident on 18 July 2000 be overturned. ________________________________________________________________ _ APPLICANT CONTENDS THAT: Following his automobile accident on 18 July 2000, he was coerced into pleading guilty to a Driving While Intoxicated (DWI) charge so that the Air Force could take total jurisdiction. He did not understand this action but complied with his acting commander. He later found out that this was a mistake because his DWI charge was overturned by the court. He accepted an Article 15 not knowing that his blood alcohol level showed no signs of alcohol. In support of his appeal, the applicant provides copies of court documents dismissing the DWI charges against him. The applicant’s complete submission, with attachments, is at Exhibit A. ________________________________________________________________ _ STATEMENT OF FACTS: On 18 September 1996, the applicant enlisted in the Regular Air Force at the age of 18 in the grade of airman basic (E-1) for a period of four years. He was progressively promoted to the rank of senior airman (E-4) effective and with a date of rank of 18 September 1999. On 18 July 2000, the applicant was injured in a one-vehicle automobile accident at approximately 0310 hours when he lost control of the vehicle he was driving. As a result of the accident, he sustained traumatic head injuries resulting in the complete loss of vision in his left eye, vision impairment in his right eye, occasional short-term memory impairment, and multiple left hand fractures. An investigating officer (IO) was appointed to investigate the facts and circumstances surrounding the accident and to make a formal LOD determination. Based on the results of the investigation, the IO determined the applicant’s injuries were not sustained in the line of duty due to his own misconduct. On 29 September 2000, the reviewing authority approved the IO’s findings. A Medical Evaluation Board (MEB) report, dated 27 November 2000, indicates the applicant was diagnosed with a traumatic head injury and multiple hand fractures. The MEB referred their findings to an Informal Physical Evaluation Board (IPEB). On 11 January 2001, the applicant requested a disability discharge due to his injuries. The IPEB findings, dated 22 January 2001, found the applicant unfit for duty due to permanent physical disability and recommended he be discharged under Chapter 61, Section 1207, of Title 10, United States Code (USC). The IPEB indicated that since the applicant’s injuries were determined to be not in the line of duty, his medical conditions were not compensable under the provisions of military disability law/policy. On 25 January 2001, the applicant concurred with the IPEB findings and recommendation. On 25 January 2001, the Secretary of the Air Force approved the IPEB’s recommendation and directed the applicant be separated from active service for physical disability under the provisions of Chapter 61, Title 10 USC. The applicant was honorably discharged effective 12 March 2001 after serving 4 years, 3 months, and 17 days on active duty. The narrative reason for his separation is Disability, Not in the Line of Duty. On 24 January 2008, AFLOA/JAJM notified the applicant that after reviewing his appeal, his master personnel file, and electronic military justice records, they found no copies or evidence of nonjudicial punishment administered to him during his Air Force career. Accordingly, they have no records of nonjudicial punishment to correct or remove in connection with his files. ________________________________________________________________ _ AIR FORCE EVALUATION: AFPC/JA recommends denial of relief because, in their opinion, the applicant’s contentions are without merit and constitute neither error nor injustice. JA states that following his accident, the State of North Carolina prosecuted the applicant for DWI. On 26 October 2000, the applicant pled guilty to the offense and was convicted. On 24 July 2007, the applicant was successful in his bid to have his conviction dismissed. Specifically, the State Court granted the applicant’s motion and found his guilty plea to the charge of DWI was not entered into knowingly and voluntarily. In his appeal to the Board, the applicant now claims he had no alcohol in his system at the time of the accident; therefore, he seeks to have his records changed to show his injuries were in the line of duty, despite the overwhelming evidence to the contrary. JA states that a determination that a member’s injury was incurred “not in the line of duty, due to own misconduct” is appropriate when a preponderance of evidence shows the member’s injury was proximately caused by his or her own actions. A finding of misconduct can be made when a member knew, or reasonably should have known, of his unfitness to operate a motor vehicle and is injured or killed in an accident. Voluntary intoxication or other circumstances that affect a member’s mental or physical faculties cause a member to be unfit. The applicant’s BAC of .213, as well as his excessive speed, was a breach of what is expected of a reasonable person and displayed a total disregard for his safety and the safety of others. It passes the Air Force Instruction’s test for willful misconduct, hence justifying a “not in the line of duty, due to own misconduct” determination, [because a reasonable person would not have attempted to drive a car under these conditions]. In this case, the applicant’s own admission to drinking prior to driving, in addition to the medical records and police report, more than substantiates the final determination of “not in the line of duty,” due to own misconduct. The AFPC/JA evaluation is at Exhibit C. ________________________________________________________________ _ APPLICANT'S REVIEW OF AIR FORCE EVALUATION: The applicant’s counsel provides copies of medical records from the civilian medical center where the applicant was transported to by ambulance following his vehicle accident. His client was not drunk. He was originally charged with Driving under the Influence (DUI); however, that conviction was later overturned and the record expunged. The provided medical records contain numerous errors to include incorrect Social Security Numbers, age, date of birth, type of accident (head-on collision versus one car accident) and type of vehicle involved in the accident. Reports to the North Carolina court indicated a blood alcohol content of zero. The DUI conviction was based on an ill-advised plea by his client while he was suffering the effects of the vehicle accident. Accordingly, the DUI conviction was expunged. The counsel’s complete response, with attachments, is at Exhibit E. ________________________________________________________________ _ THE BOARD CONCLUDES THAT: 1. The applicant has exhausted all remedies provided by existing law or regulations. 2. The application was timely filed. 3. Insufficient relevant evidence has been presented to demonstrate the existence of error or injustice. We find no evidence of nonjudicial punishment in the applicant’s master personnel record or in the package submitted by the applicant in support of his appeal. In addition, AFPC/JA searched the electronic military justice records and found no evidence of a nonjudicial punishment administered to the applicant during his Air Force career. Therefore, we will only address his request to overturn his LOD determination. After reviewing the evidence of record and the applicant’s submission, we are not persuaded that the LOD determination was incorrect. Based on the results of the investigation, the IO determined the applicant’s injuries were not in the line of duty based on the applicant’s willful misconduct. This determination is supported by the evidence provided during the investigation, to include witness statements attesting to the fact that the applicant had been drinking prior to his accident. Therefore, we agree with the opinion and recommendation of the Air Force office of primary responsibility and adopt its rationale as the basis for our conclusion that the applicant has not been the victim of an error or injustice. Accordingly, in the absence of evidence to the contrary, we find no basis upon which to favorably consider his request to overturn his LOD determination. ________________________________________________________________ _ THE BOARD DETERMINES THAT: The applicant be notified that the evidence presented did not demonstrate the existence of material error or injustice; that the application was denied without a personal appearance; and that the application will only be reconsidered upon the submission of newly discovered relevant evidence not considered with this application. ________________________________________________________________ _ The following members of the Board considered AFBCMR Docket Number BC-2007-04118 in Executive Session on 10 February 2011, under the provisions of AFI 36-2603: The following documentary evidence was considered in connection with AFBCMR Docket Number BC-2007-04118: Exhibit A. DD Form 149, dated 13 Dec 07, w/atchs. Exhibit B. Applicant's Master Personnel Records. Exhibit C. Letter, AFPC/JA, dated 28 Feb 08. Exhibit D. Letter, SAF/MRBR, dated 7 Mar 08. Exhibit E. Letter, Counsel, dated 6 May 10, w/atchs.