MEMORANDUM OF CONSIDERATION

IN THE CASE OF:   

	BOARD DATE:           29 December 1999        
	DOCKET NUMBER:   AR1998000695

I certify that hereinafter is recorded the record of consideration of the Army Board for Correction of Military Records in the case of the above-named individual.
	Mr. Loren G. Harrell		Director	
	Mr. Richard H. Allen		Analyst	

The following members, a quorum, were present:
	Mr. George D. Paxson		Chairperson	
	Mr. Curtis L. Greenway		Member	
	Mr. Christopher J. Prosser		Member	

The Board, established pursuant to authority contained in 10 U.S.C. 1552, convened at the call of the Chairperson on the above date.  In accordance with Army Regulation 15-185, the application and the available military records pertinent to the corrective action requested were reviewed to determine whether to authorize a formal hearing, recommend that the records be corrected without a formal hearing, or to deny the application without a formal hearing if it is determined that insufficient relevant evidence has been presented to demonstrate the existence of probable material error or injustice.
The applicant requests correction of military records as stated in the application to the Board and as restated herein.
The Board considered the following evidence:
	Exhibit A - Application for correction of military 
records
	Exhibit B - Military Personnel Records (including
advisory opinion, if any)
Exhibit C-Military Police Report , Fort Polk, Louisiana, 91-MPC054-8575G, (FP-00424-91-799), completed on 21 June 1991.  

APPLICANT REQUESTS:  In effect, change his separation status to a physical disability discharge with severance pay.
APPLICANT STATES:   In essence, that there are several inconsistencies in the reports of investigation in his case.  The applicant (essentially, he is being represented by his parents due to his current medical condition) claims that he never received copy of a second investigation of the incident in which he was injured, as  well as the results of certain tests that were to be conducted, and that several statements made by individuals who were witnesses to the incident were not fully investigated.  His initial application contains a number of letters to various officials in the Department of the Army from him, and members of his family concerning the incident, questions concerning inconsistencies in the investigation, requests for material under the Freedom of Information Act and other matters.  The applicant’s Representative in Congress also has communicated with the family and various Department of the Army officials in an attempt to get answers to the family’s questions.  
EVIDENCE OF RECORD:  The applicant’s military records show:
He enlisted in the Regular Army on 25 November 1987, for 4 years.  He had a high school General Educational Development Diploma issued by the state of New York.  He was trained as an Indirect Fire Infantryman, Military Occupational Specialty (MOS) 11C.  Upon completion of his training, he served in Germany from March 1988 through March of 1990.  He attained the rank of specialist four, pay grade E-4, while in Germany.  Upon return to the United States, he was assigned to duties at Fort Polk, Louisiana.  
In the early morning of 2 February 1991, the applicant, while riding in an automobile with another soldier, in an off duty status on the Fort Polk reservation, supposedly found a .22 caliber automatic pistol, belonging to a third soldier, in the automobile in which he was riding.  He also found some ammunition for the weapon, and began to fire the weapon out the window of the automobile.  The driver told the applicant to stop.  He did, but the driver testified that the applicant then pointed the weapon at his own head.  The weapon went off and the applicant was wounded in the right temple.  His wound was serious, but it was not fatal.  The driver immediately drove to an entrance gate to Fort Polk and sought medical help.  Medical help was obtained, and the applicant was first taken to the installation medical facility, then was later transferred to a civilian medical hospital near Fort Polk for further treatment.  There were no other passengers reported to be in the automobile besides the driver and the applicant by military police officials.  (Note:  However, at least one individual (a retired sergeant from the applicant’s unit) claimed to the applicant’s counsel in December 1992, that it was well known in the unit that there was another individual in the automobile.)     
The military police officials at Fort Polk then conducted an investigation of the incident.  Statements were taken from the various witnesses and others who had been with the applicant earlier in the evening of 1-2  February 1991.  The statements indicate that the applicant and his friends had consumed some alcohol earlier in the evening.  The investigation reached the conclusion that after driving around early on the morning of 2 February 1991, the applicant found a weapon in the car, indiscriminately fired the weapon and then accidentally shot himself in the right temple.  The weapon, belonging to a third soldier, was not registered on the military installation.  That soldier claimed that he had left the weapon in the driver’s automobile behind a sun visor, and a clip loaded with ammunition in the glove compartment. 
Following a period of hospitalization, the applicant was placed in a civilian rehabilitation facility from 14 March 1991 to 22 May 1992 near his home.   
On 20 February 1991, a Line of Duty (LOD) investigation was directed by officials at Fort Polk.  On 23 July 1991 the applicant was informed that there would be a formal LOD hearing on his case.  He was advised that he had the right to submit any statements on his behalf.  
However, the family responded that the applicant was currently incapable of making a statement.  Further, on 24 September 1991, the family requested to officials at Fort Polk that any proceedings be held in abeyance until responses to requests for Freedom of Information the family had submitted were received.  Essentially, the family stated that they did not believe the applicant shot himself.  The family cited several inconsistencies in the statements taken at the time of the incident from individuals who were with, or had been with the applicant.
On 12 February 1992, the father of the applicant was notified by the command at Fort Polk that the LOD had been completed and the determination was made that the applicant’s injury was NOT IN THE LINE OF DUTY-DUE TO OWN MISCONDUCT.
On 13 March 1992, the father appealed the LOD findings to the Total Army Personnel Command (PERSCOM).  In the appeal, the father contended that the driver’s testimony was to be expected since he was the only direct witness to the shooting incident.  He further contested the statement of the individual who owned the gun who claimed that he hid the gun in the driver’s car, had ridden in the car earlier on the evening of the incident, yet had not removed the weapon.  He then contended that there were inconsistencies as to when/how the weapon was taken from his son’s hand, cleared and placed on the floor of the automobile.  Finally, the father claimed that he was told by several “sergeants” in the applicant’s unit that there was a “third” individual in the car who was not identified.  He claimed that his son, although not able to communicate verbally, indicated that someone else shot him.  Also, he claimed that crime lab tests that he had requested had never been received by the family.  There is no record of the response to this appeal, but other evidence of record indicates that no change in the LOD findings has been made to this date.  
On 4 December 1992, a formal Physical Evaluation Board (PEB) was held at the Walter Reed Army Medical Center in Washington.  The applicant was invited to appear, and invitational travel orders were issued.  He also had legal counsel (a military Judge Advocate General’s Corps officer).  The PEB found that the applicant was 100 percent disabled due to Acute Brain Syndrome, Secondary to Gunshot Wound, Manifested by Left Side Hemipharesis, Expressive Dysphasia, and Requiring a Feeding Tube.  Rated as Severe Impairment of Social and Industrial Adaptability.  These findings were based on the Medical Summary prepared on his case.  The PEB then recommended that he be awarded a permanent disability retirement, rated as 100 percent disabling.  
However, a notation was made that this adjudication was only conditional pending the review of the unfavorable LOD.   His counsel advised him that if the LOD review was not favorable, that the results of the PEB would be revisited and could be reversed.  This apparently did happen, but the results are not a matter of record.  Further, on 12 January 1993 a notation was made by the PEB staff that the applicant had failed to respond to the PEB findings after 10 days.
On 21 May 1993, the applicant was honorably discharged under the provisions of Army Regulation 635-40, by reason of physical disability without severance pay.  (Note:  This is consistent with a finding of NOT IN THE LINE OF DUTY.)  He was credited with 5 years, 5 months and 27 days creditable service, and no lost time. He had no recorded indisciplines.  His awards and decorations included the Army Service Ribbon, the National Defense Service Medal and the Army Lapel Button. His records also contain a recommendation for a Certificate of Achievement for outstanding work at a field training exercise at the National Training Center between March and August 1990.  Whether this certificate was ever issued is not a matter of record, however, Certificates of Achievement are not recorded on his separation documents.  
Between May 1992 and at least August 1996, the applicant underwent a number of medical examinations, evaluations and treatments at various Department of Veterans Affairs (DVA) and civilian medical facilities.  Some progress was made, but he continued to have a significant loss of his physical abilities.
In the meantime, on an unknown date in March or April 1994, the DVA denied the applicant’s claim for service-connected disability compensation for acute brain syndrome.  The DVA stated in its decision that his current condition was the direct result of a self-inflicted gunshot wound while in the service.  The decision went on to state that the injury was the direct result of his own willful misconduct and was not incurred in the line of duty.  
Between 1996 and the present date there have been a number of communications between the family, their Representative in Congress and the Department of the Army, to include this agency, primarily concerning the family’s request for additional information on the incident, crime laboratory tests, complaints that the investigation was not conclusive or thorough enough and that the driver was not a suspect in the case.  Requests for much of the information under the Freedom of Information Act were responded to by the Army, but the family appears not to have been satisfied with the information they received.
In connection with the application to the Board, the PERSCOM was requested to provide an advisory opinion and conduct a review of the LOD determination.  The PERSCOM responded (COPY ATTACHED), which essentially concluded that there was sufficient evidence developed to rebut the presumption of IN LINE OF DUTY.  The LOD investigating officer found that the applicant had been drinking that evening; had been a passenger in the right front seat of the driver’s car; had fired the weapon out the window; had pointed it at his head.  The investigating officer determined that the applicant had accidentally shot himself in the head while playing with the weapon and that the driver could not have shot the applicant in the right temple since he was sitting to the left of the applicant.  Further, the driver had no motive to shoot the applicant.  
The PERSCOM opinion then goes on to state that in accordance with Rule 6, Army Regulation 600-8-1, dated l8 September 1986, an injury incurred while tampering with a firearm in disregard of its dangerous qualities is incurred not in the line of duty.  It is due to misconduct.  Essentially, due to the dangerous qualities of a firearm, a high degree of care must be exercised in their use and any member who willfully handles or tampers with these materials in disregard of their dangerous qualities is willfully negligent.  While the applicant may have accidentally shot himself, his indiscriminate firing and pointing of the weapon to his head while intoxicated constituted willful negligence. 
This opinion was provided to the applicant on 9 July 1998 for comment or rebuttal, but no response has been received by the Board.
On 16 February 1999, the Office of the Chief of Legislative Liaison (OCLL) provided a detailed and comprehensive response (COPY ATTACHED) to the applicant’s Representative in Congress concerning responses to at least           12 questions raised by the family and the Representative in Congress to various officials in the Department of the Army.  An 80 page copy of the Military Police Report (MPR) was also provided.
The reply to question 1 concerning forensic laboratory testing essentially stated that included with the response were two copies of trace evidence, serology, latent prints and firearm tests which were conducted.  The copies were all clear except the firearm test.  The weapon was operational and the incorporated safety features worked properly.  However, the rest of the report was not legible.  
The family had asked (Question 2) whether a second investigation was made. While it was noted that the Military Police Investigators (MPI) made only one investigation, the response also concluded that the LOD officer made a separate investigation.  Therefore, there were two investigations.  
No explanation could be given as to why no breathalyzer or blood alcohol tests were given to those who were present at the shooting (Question 3).  However, the MPR and LOD investigations do document the actions of individuals involved.
Question 4  related to the family’s claim that the weapon was placed back into the applicant’s hand.   The response essentially states that it is somewhat unclear as to the sequence of events concerning the removal of the weapon from the applicant’s hand and how the weapon was cleared.  The attention of the family was called to the statements taken from the witnesses at the time, or shortly thereafter and are considered the witnesses’ “best” recollection of the events as they happened.
The family asked (Question 5) why there was a lack of chain of custody at the time of the incident.  The response noted that the first priority at the time was treating the applicant, then the chain of custody was initiated and maintained.
The family then questioned (Question 6) why no efforts were made to find a “third” individual who was supposedly in the automobile.  Essentially, the answer stated that all individuals listed on the MPR had been questioned and statements taken.  The information about a third individual was only shown as only rumor on the LOD.
The family (Question 7) claimed that a medical document was withheld from the family.  The reply noted that the information had been requested under the Freedom of Information Act and the Privacy Act.  Essentially, the(se) documents had not been cleared by the Office of the Surgeon General for release.  Clearance had been obtained and the two documents were provided to the family with the reply from the OCLL.
The next question (Question 8) involved a cracked windshield, scratches on the vehicle and a “left rear railing” being loose.  The family asked whether the vehicle was in this condition before the accident.  The response indicated that the damages appear to have been present before the night of 2 February 1991.  
The family then asked (Question 9) why the driver was not considered a suspect. The response essentially stated that “suspects” are not shown on the MPR.  The MPR essentially shows a list of individuals involved and the final report is prepared to reflect the relevant information that led investigators and their supervisory personnel to make conclusions and findings based on the investigation.  Only “founded offenses,” subjects and personnel are listed on the final MPR.  The driver’s name is listed as a person related to the report.  
Question 10 involved the 11-day delay in transfer of the specimens (physical evidence) from the investigators to the crime laboratory.  No satisfactory answer could be given for this delay.
The family then requested (Question 11) to know the whereabouts of the one female witness to the incident who was sent to call for an ambulance?  The reply indicated that she was directed by security personnel at the gate and to go to a nearby convenience store to call for an ambulance.  Essentially, the evidence shows that she did this and then returned to the scene without delay.  
The final question (Question 12) involved the validity of the testimony of the individual who owned the gun.  The family claimed that he couldn’t even recall where he had been.  The OCLL response indicated that the MPI obtained statements from all the individuals involved and the validity of the statements (credibility of the witness) is judged on the basis of all the information available to the MPI and their supervisors.   
The family responded to the OCLL report on 26 October 1999 (COPY ATTACHED).  This response was provided to the Board by the OCLL.  Essentially it requested to know the results of tests (swabs) of the hands of the driver and the owner of the weapon.  Note:  In a “Division Report,” located  between pages 76 and 77 of the MPI, a Forensic Chemist certified on 29 April 1991 that no tests of the Gunshot Residue Analysis Kit for both the driver and the owner of the weapon were made.  It had been more than 6 hours between the time of the incident and the time the handswabs were collected.  Any trace elements (antimony and barium) found after 6 hours usually cannot be attributed to gunshot residue.  
Further, the family stated that responses to questions 3, 4, 5, 9, 10, 11 and       12 were unsatisfactory as their questions were not answered in (their) entirety.  The family maintains that the applicant did not shoot himself and that his discharge be changed to IN LINE OF DUTY, or some other status to include a “stipend” from the Army. 
DISCUSSION:  Considering all the evidence, allegations, and information presented by the applicant, together with the evidence of record, applicable law and regulations, advisory opinion(s) and the Military Police Report, it is concluded:
1.  The Board is not investigative in nature.  It must depend on evidence of record in the Official Military Personnel File, official Department of the Army reports of investigation and matters submitted by the applicant and/or the counsel of record.  In this case, in view of the applicant’s incapacity, matters submitted by his family were considered.
2.  From all the information available to the Board, it must conclude that the applicant, on the early morning of 2 February 1991, after drinking alcoholic beverages, found a .22 caliber pistol in an automobile driven by another solder.  He indiscriminately fired the weapon out the window of the vehicle and then pointed it at the right side of his own head and the weapon went off, seriously wounding the applicant in the right temple.  He underwent emergency treatment and survived, although he is severely disabled.  
3.  The MPI at Fort Polk conducted an investigation at the time of the incident and took statements from all individuals known to have witnessed or been involved in the incident.  While some lapses may have occurred in the investigation, to include delayed initiation of a chain of custody of the evidence and crime lab testing of evidence, the Board has found no evidence that the report was flawed in its essential elements.  This report concluded that the applicant accidentally wounded himself by firing a pistol at his head.  There simply is not any credible evidence that there was a third individual in the automobile besides the driver and the applicant.  
4.  Additionally, a LOD officer was appointed shortly after the incident and he conducted an independent investigation from February through late summer, 1991.  His conclusions were essentially the same as the MPI investigators.  Therefore, the approved LOD investigation found that the incident was NOT IN THE LINE OF DUTY-DUE TO OWN MISCONDUCT.
5.  A subsequent review of the LOD in June 1998 by the PERSCOM validated this finding.  This determination was included in an advisory opinion to the Board, which was provided to the applicant and his family for review and comment.  No response was received from the applicant.
6.  The Board is satisfied that the LOD review was properly accomplished by the PERSCOM and was in conformance with appropriate Departmental regulations.  While the Board is sympathetic with the family, it must conclude that weapons are inherently dangerous, and careless use of a weapon can lead to serious injury or death.  Misuse of weapons is clearly gross negligence on the part of the soldier.
7.  The applicant had the opportunity to appear before a PEB, with legal counsel, and his case was appropriately adjudicated.  The PEB’s initial determination was that the injury, was 100 percent disabling and that he was should be placed on the retired list with that rating.  However, this initial finding was overcome by the LOD finding that the injury was NOT IN THE LINE OF DUTY-DUE TO OWN MISCONDUCT.  Therefore, the Board concludes that there has been no basis established to award severance pay or retire the individual due to his physical disability. 
8.  The applicant’s administrative separation was accomplished in compliance with applicable regulations with no indication of procedural errors which would tend to jeopardize his rights.  
9.  In order to justify correction of a military record the applicant must show to the satisfaction of the Board, or it must otherwise satisfactorily appear, that the record is in error or unjust.  The applicant and his family have failed to submit sufficient evidence that would satisfy the aforementioned requirement.
10.  In view of the foregoing, there is no basis for granting the applicant’s request.
DETERMINATION:  The applicant has failed to submit sufficient relevant evidence to demonstrate the existence of probable error or injustice.

+-
BOARD VOTE:

________  ________  ________  GRANT

________  ________  ________  GRANT FORMAL HEARING

__GDP__  __CJP___  __CLG__  DENY APPLICATION

						Loren G. Harrell
						Director

INDEX
CASE ID	AR1998000695	
SUFFIX		
RECON		
DATE BOARDED	19991229	
TYPE OF DISCHARGE	HD	
DATE OF DISCHARGE	19930521	
DISCHARGE AUTHORITY	AR 635-40	
DISCHARGE REASON	A31.00	
BOARD DECISION	DENY	
REVIEW AUTHORITY	DIRECTOR	
ISSUES         1.	110.02	
2.	145.00	
3.	128.14	
4.	A01.13	
5.		
6.