APPLICANT REQUESTS:  That his general discharge, for physical disability without severance pay, be changed to a medical discharge.

APPLICANT STATES:  That he has not recovered from his injury.  It is wrong and no one has helped him.  No supporting documentation except correspondence from his Senator is attached.

EVIDENCE OF RECORD:  The applicant’s military records show:

He was born on 4 December 1940.  He completed 10 years of formal education. He initially served in the Army National Guard.  On 28 November 1958, he enlisted in the Regular Army for 3 years.  He completed basic combat training and advanced individual training and was awarded military occupational specialty 111.10 (Light Weapons Infantryman).

On 18 June 1959, the applicant was convicted by a summary court-martial of failing to go to his place of duty.  He was sentenced to be reduced to pay grade E-1, to confinement at hard labor for 30 days and to forfeit $50 pay for 1 month.

On 14 December 1960, the applicant was convicted by a summary court-martial of being absent from his unit from 2400 hours 7 December - 0115 hours             8 December 1960.  He was sentenced to hard labor for 1 month, to be reduced to pay grade E-1 and to forfeit $70 pay for 1 month.

The applicant received non-judicial punishment under Article 15, Uniform Code of Military Justice on six different occasions for offenses such as failure to repair, disobeying a lawful order from a superior non-commissioned officer, and missing bed check.

On 17 February 1961, authority was granted to place the applicant before a board of officers to consider his separation under the provisions of Army Regulation 635-209 for unsuitability.  On or about this date, the applicant was placed on administrative restriction, per the unit Standing Operating Procedure (SOP), making him ineligible for a pass.

On 21 February 1961, the board met and found the applicant unsuitable for further service for behavior and character disorder.  On 11 March 1961, the appropriate authority approved the findings and directed he be discharged, with a general discharge, under the provisions of Army Regulation 635-209.

On 25 March 1961, the applicant broke restriction.  He went to a local gasthaus, where he consumed part of a bottle of vodka as well as an unknown amount of beer.  A fight broke out between the applicant, another American soldier and two German nationals.  The gasthaus owner called the Military Police (MP).  When the MPs arrived, the applicant fled and ran up the stairs of an adjoining building. The MPs followed.  The applicant fell from the third floor stairway window, about a 40 foot fall.

The line of duty investigating officer found that whether the applicant’s fall and injuries were the result of his own intoxication or of his unlawful attempt to escape arrest, they were in either event the result of his own misconduct.  He found the applicant was absent without authority and that intentional misconduct or neglect was the proximate cause of the injuries.  The official findings of Not in Line of Duty - Due to Own Misconduct were approved by the appropriate authority on 12 April 1961 and approved by the reviewing authority on 20 April 1961.

On 1 May 1961, the Office of the Adjutant General, Washington, DC reviewed and approved the findings of Not in Line of Duty - Due to Own Misconduct.

The applicant was medically evacuated to Fitzsimons General Hospital, where his case was considered by a medical evaluation board for a diagnosis of      post-traumatic encephalopathy, manifested by mild weakness of the right side of the body and decreased mental efficiency.  The board found the applicant medically unfit for retention on active duty; that he was mentally competent to understand the nature of the board proceedings and to conduct or cooperate in his own behalf; that he was mentally competent; and that he was not considered dangerous to himself or others and was able to be discharged to his own care.

On 2 November 1961, the applicant was discharged, with a general discharge, in pay grade E-1 under the provisions of Army Regulation 635-40 for physical disability with no severance pay.  He had completed 2 years, 3 months and 22 days of creditable active service and had 223 days of lost time.

Army Regulation 635-40, dealing with physical standards for retention, provides that soldiers are not entitled to receive retirement or severance pay for a physically unfitting disability if the disability resulted from the soldier’s intentional misconduct or willful neglect.

Army Regulation 600-8-1, chapter 39, dealing with LOD investigations, provides that a LOD investigation must be conducted in all cases of injury not a result of enemy action.  It also states that a formal investigation must be conducted for injuries involving the abuse of alcohol.

Army Regulation 600-8-1, Appendix F, Rules Governing Line of Duty and Misconduct Determinations, provides specific rules of misconduct:

Rule 1 provides that injury or disease directly caused by the misconduct or willful negligence is not in line of duty, it is due to misconduct.  This is a general rule and must be considered in every case in which misconduct or willful negligence appears to be involved.

Rule 3 provides that injury or disease 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 is on the effect of the alcohol on the member's conduct, as well as the physical effect on his body.  Any erratic or reckless conduct caused by the effect of the alcohol which directly causes the injury is misconduct.

Rule 4 provides that injury or disease that results in incapacitation because of the abuse of intoxicating liquor is not in line of duty, it is due to misconduct.  The principles in Rule 3 apply here.  While the mere drinking of alcoholic beverages is not misconduct, one who voluntarily becomes intoxicated is held to as high as a standard of conduct as one who is sober.  Intoxication does not excuse the individual's conduct.

The regulation also states that any injury or disease incurred while absent without leave (AWOL) will be handled as “not in line of duty” unless the member was mentally unsound at the inception of the unauthorized absence.  AWOL is established when the member voluntarily left his or her unit or organization or other place of duty without proper authority or was absent from a scheduled duty or restriction at the time of injury or disease.

The same regulation defines “Proximate cause” as a cause which, in a natural and continuous sequence, unbroken by a new cause, produces an injury and without which the injury would not have occurred.  A proximate cause is a primary moving or predominating cause and is the connecting relationship between the intentional misconduct or willful negligence of the member and the injury that results as a natural, direct, and immediate consequence which supports a Not in Line of Duty-Due to Own Misconduct determination.

Willful negligence is defined in the regulation as a conscious and intentional omission of the proper degree of care which a reasonably careful person would exercise under the same or similar circumstances.  Willfulness will be presumed when the member’s conduct demonstrates a gross, reckless, wanton, or deliberate disregard for the foreseeable consequences of an act.
The authorized finding for an injury or disease that was proximately caused by intentional misconduct or willful negligence of the member is Not in Line of Duty - Due to Own Misconduct.

DISCUSSION:  Considering all the evidence, allegations, and information presented by the applicant, together with the evidence of record, applicable law and regulations, and advisory opinion, it is concluded:

1.  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 has failed to submit evidence that would satisfy the aforementioned requirement.

2.  The LOD investigating officer was appointed by the appropriate authority.  His investigation of the facts and circumstances surrounding the accident appear to be thorough and impartial.

3.  The line of duty investigation showed that the applicant had broken his restriction to the installation at the time of his accident, thereby falling under the regulation’s definition of AWOL.

4.  The line of duty investigation established that the applicant had been drinking, after which he engaged in a fight for no just cause, and fled from the approach of MPs to avoid apprehension.  His conduct could not be reasonably justified by the threat of comparatively mild restraint facing him if the MPs had apprehended him.

5.  The line of duty investigation findings were reviewed and approved by the approving authority, the reviewing authority, and the Office of the Adjutant General.

6.  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

                       DENY APPLICATION

                                                          Loren G. Harrell
					     Director