MEMORANDUM OF CONSIDERATION

	IN THE CASE OF: 

	BOARD DATE:            12 May 1999       
	DOCKET NUMBER:   AR1999016666

	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. Kenneth Aucock		Analyst	

  The following members, a quorum, were present:

	Mr. George D. Paxson		Chairperson	
	Mr. Arthur A. Omartian		Member	
	Mr. James E. Anderholm		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 the application was filed within the time established by statute, and if not, whether it would be in the interest of justice to waive the failure to timely file.

	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)

APPLICANT REQUESTS:  That the findings of the 1988 line of duty (LOD) investigation be changed from “Not in Line of Duty – Due to Own Misconduct”, to “In Line of Duty”.

He states that the evidence will show that the blood test was contaminated; also, the investigation took place too soon after the accident.  He now recalls that it was a hit and run accident.  He was not drunk.    

PURPOSE:  To determine whether the application was submitted within the time limit established by law, and if not, whether it is in the interest of justice to excuse the failure to timely file.

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

The applicant was a career soldier who first entered the Army in 1966, was released from active duty in 1969, and reenlisted for three years on 28 July 1971, serving on continuous active duty until his retirement in 1989.  He completed numerous military schools and courses, to include airborne, special forces, and the advanced course, among others.  He served in assignments throughout the world, to include Vietnam, Okinawa, Korea, Germany, Morocco, in addition to his tours of duty at Fort Bragg, North Carolina, Fort Stewart, Georgia, among other locations.  The applicant has received many awards, to include the Bronze Star Medal, the Defense Meritorious Service Medal, the Meritorious Service Medal, the Army Commendation Medal, Good Conduct Medal (6th award), the Combat Infantryman Badge, the Presidential Unit Citation, the Parachute Badge, and the Special Forces Tab.  On 21 November 1987 he was promoted to Sergeant Major, E-9.

In July 1987 the applicant was assigned as a student to the Sergeants Major Academy at Fort Bliss, Texas.

A 16 February 1988 line of duty investigation revealed that the applicant was in a motorcycle accident at approximately 0454 hours on 9 December 1987 in El Paso, Texas, and suffered massive facial bruises and cuts on his arms and legs. He was taken to a hospital by ambulance.  At the hospital, an El Paso police officer observed that the applicant had been drinking and a blood alcohol content was obtained.

A military police report indicated that the applicant was driving his motorcycle at a high rate of speed, lost control, struck a curb, causing the motorcycle to slide 168 feet on gravel and the applicant to slide 174 feet on the road.  He was transported to William Beaumont Army Medical Center (WBAMC) treated for massive facial abrasions and admitted in serious condition.  His medical BAT was .255%.  Legal BAT was taken at 0730 that morning.  He was charged with failure to maintain control by the El Paso police and with drunk driving by the military police.  The WBAMC laboratory could not complete the legal BAT because the blood sample was contaminated by IV (glucose), plasma, and blood coagulants administered during emergency room treatment.  The SJA opined that the medical BAT was sufficient to prosecute for drunk driving.

The original investigating officer indicated that he had informed the applicant of his rights, and that he elected not to make a statement at that time.  He was  informed that in the absence of the statement, he would have to make a determination based on the available evidence, the accident report and two blood alcohol tests, one medical and one legal.  The investigating officer spoke to the applicant’s neurosurgeon on 8 January 1988 and inquired how a person would act with the amount of alcohol detected in his medical BAT (255.4 MG/DL).  He stated that an individual would usually be very drunk and have difficulty finding things, operating a vehicle, etc.  He further stated that an individual who habitually abuses alcohol would over time, have the tendency to develop a tolerance for the substance, to the point of being able to function more normally when intoxicated.  There was no factual evidence that the applicant was a habitual abuser of alcohol.  His faculty advisors stated that the applicant acted normal and was a good student.  The investigating officer concluded that the applicant should have known that he had been drinking to excess, should have stopped long before he did, and should have known that he was in no condition to operate a motor vehicle.  He stated that the accident was not in line of duty due to the applicant’s own misconduct.  

The original investigating officer was replaced on 14 January 1988 because he was departing for 70 days of TDY, which would extend beyond the time required for completion of the investigation.  

The new investigating officer interviewed the applicant, who stated that he did not think that he was intoxicated at that time, and indirectly questioned the accuracy of the blood alcohol tests.  The applicant stated that he had two or three cans of beer at a club, and left somewhere around 2330 or 2400, or it might have been 0130 or 0200.  He rode around the block and stated that he had a vivid recollection of something shiny on the road, water or ice, or oil, and believed that this was the cause of his accident.  The medical examination conducted at WBAMC at 0545 hours the date of the accident revealed that the applicant had a blood alcohol content of 255.4 mg of alcohol to 100 ml of blood.  The investigating officer spoke to the chief of chemistry at WBAMC, to determine the effect of any substance injected by IV on the results of the blood alcohol tests.  He said that only the alcohol skin preparation would have any effect, and would cause only a 10 to 20 mg/dl increase; and taking that increase into account, the applicant’s blood alcohol level would still have been at 230 to 240 mg/dl, well above the legal limit for intoxication.

On 16 February 1988 the LOD investigating officer found that the accident was not in line of duty due to the applicant’s own misconduct.  The appointing authority approved the findings on 19 February 1988.  On 26 February the Judge Advocate General at Fort Bliss determined that the investigation was legally sufficient to support the findings.  The LOD investigation was approved on           8 March 1988. 

On 18 March 1988 the applicant appealed the findings of the LOD.  He stated that the investigation and evidence lacked sufficient depth for an individual to conclude that willful negligence or misconduct was the cause of his accident and that there appeared to be no hard and fast evidence that the accident did not happen as he stated, that he was not drunk, that a slippery substance on the road caused him to slide and lose control, and that he was not travelling at a speed greater than reasonable.  He admitted to having two or three beers, but stated that the military police charged him with DWI only after receiving the results of the medical BAT, which clearly indicated that it was contaminated and therefore invalid.  He provided statements from people who saw him that evening, all of whom vouched for the applicant’s good character, stating that he may have had two or three beers that night, that when he left, he put on his motorcycle gear, i.e., jacket, helmet, etc., and was definitely not intoxicated.  One person stated that the applicant never stayed out late or drank much on week days because of his school schedule, and one person stated that he knew the hazards of motorcycling too much to drive while intoxicated.  One person said that he left around midnight.

The applicant noted that the legal BAT was taken at 1320 hours on 9 December and was at a level of 59 mg/dl, and he was informed by a medic that it would be difficult if not impossible for his body, which was inactive in a coma, could possibly dissipate alcohol as substantially as a drop from 255.4 to 59.  He implied that the investigating officer’s findings were influenced or prejudiced by the previous investigator, even though his doctor had stated that on 11 January 1988 he was incompetent to understand his rights or the impact of any statements that he might have (and did) make.  The reason he could not recall where he was or what happened was because he sustained a closed head injury.  Since there were no eyewitnesses to the accident, a lawyer at Fort Bragg suggested that he could have laid unconscious for a couple of hours.  He asserted his accident was caused by simple negligence and road conditions.

On 6 May 1988 the Personnel Command Staff Judge Advocate determined that the findings of not in line of duty – due to own misconduct was legally sufficient.  He stated that the first BAT result should be considered more accurate than the second result, as the second was taken after considerable dilution of blood by administration of intravenous fluids.  Metabolic elimination of alcohol by the body is about .015 percent per hour, which figuring backward from a .059 percent reading at 1320 hours, would give a BAT of over .12 percent at time of the injury, sufficient to support the finding of loss of control due to impairment by alcohol.

On 13 May 1988 the Total Army Personnel Command denied the applicant’s appeal, stating that based on the Department of Transportation National Highway Traffic and Safety’s accepted metabolic rate of elimination of alcohol from the human body, the BATs taken showed that he would have been considered legally intoxicated at the time of his accident.  The not in line of duty-due to own misconduct finding was affirmed. 

On 4 January 1989 a formal physical evaluation board (PEB) determined the applicant to have post traumatic organic brain syndrome with psychology test results indicating significant impairment of problem solving ability which rendered him unfit to perform the duties of a Sergeant Major, and produced considerable reduction of social and industrial adaptability.  The PEB determined that the applicant’s condition was as a result of his intentional misconduct, that he was physically unfit and recommended that he be permanently retired from the Army if otherwise qualified.  The applicant stated that he did not agree with the recommendations and would enclose a letter of rebuttal.  However, on              20 January 1989 he requested retirement to be effective on 1 April 1989, and requested a waiver of his service obligation incurred upon his promotion to Sergeant Major.  His request was approved, and he retired on 31 March 1989.  He had over 20 years of service. 

Army Regulation 600-8-1, paragraph 39-2, provides that line of duty investigations are conducted essentially to arrive at a determination as to whether misconduct or negligence was involved in the disease, injury, or death
and, if so, to what degree.

Paragraph 39-5 of the aforementioned regulation states, in effect, that decisions on LOD determinations will be made in accordance with the standards set forth in that regulation and that injury or disease proximately caused by the member’s intentional misconduct or willful negligence is “not in LD-due to own misconduct.” Simple or ordinary negligence or carelessness, standing alone, does not constitute misconduct.  That paragraph goes on to say that unless refuted by substantial evidence contained in the investigation, an injury is presumed to be in line of duty (LD).  LD findings or determinations must be supported by substantial evidence and by a greater weight of evidence that supports any different conclusion.  The evidence  contained in the investigation must establish a degree of certainty so that a reasonable person is convinced of the truth or falseness of a fact, considering all direct and all indirect evidence.  That paragraph continues with the statement that there is no distinction between the relative value of direct and indirect evidence and the weight of the evidence is not determined by the number of witnesses or exhibits but by the investigating officer and higher authorities considering all the evidence, evaluating factors such as a witness’s behavior, opportunity for knowledge, etc., and considering other signs of truth. 
Paragraph 39-5 goes on to state that the rules in Appendix F will be considered fully in deciding LD determinations.  These elaborate upon but do not modify the basis for LD determinations.

Paragraph 41-10 pertains to intoxication and drug abuse and states, in pertinent part, that an injury incurred as the “proximate result” of prior and specific voluntary intoxication is incurred as the result of misconduct.  In order for intoxication alone to be the basis for a determination of misconduct with respect to a related injury, there must be a clear showing that the member’s physical or mental faculties were impaired due to intoxication at the time of the injury, the extent of the impairment, and that the impairment was a proximate cause of the injury.

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 drug 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 drug, which directly causes the injury or disease 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.

Rule 8 states that injury caused by driving a vehicle when in an unfit condition and the member knew or should have known about it, is not in line of duty.  It is due to misconduct.  A member involved in an automobile accident caused by his having fallen asleep while driving is not guilty of willful negligence solely because he fell asleep. The test is whether a person, under the same circumstances, would undertake the trip without falling asleep while driving.  Unfitness to drive may have been caused by voluntary intoxication or use of drugs. 

Title 10, U.S. Code, section 1552(b), provides that applications for correction of military records must be filed within 3 years after discovery of the alleged error or injustice.  Failure to file within 3 years may be excused by a correction board if it finds it would be in the interest of justice to do so.

DISCUSSION:  The alleged error or injustice was, or with reasonable diligence should have been discovered on 31 March 1989, the date of his retirement.  The time for the applicant to file a request for correction of any error or injustice expired on 31 March 1992.

The application is dated 5 October 1997 and the applicant has not explained or otherwise satisfactorily demonstrated by competent evidence that it would be in the interest of justice to excuse the failure to apply within the time allotted.

DETERMINATION:  The subject application was not submitted within the time required.  The applicant has not presented and the records do not contain sufficient justification to conclude that it would be in the interest of justice to grant the relief requested or to excuse the failure to file within the time prescribed by law.

BOARD VOTE:

________  ________  ________  EXCUSE FAILURE TO TIMELY FILE

________  ________  ________  GRANT FORMAL HEARING

___gdp__  ___aao__  __jea___  CONCUR WITH DETERMINATION

		Loren G. Harrell
		Director

INDEX

CASE ID	AR1999016666	
SUFFIX		
RECON	YYYYMMDD	
DATE BOARDED	19990512	
TYPE OF DISCHARGE	(HD, GD, UOTHC, UD, BCD, DD, UNCHAR)	
DATE OF DISCHARGE	YYYYMMDD	
DISCHARGE AUTHORITY	AR . . . . .  	
DISCHARGE REASON		
BOARD DECISION	(DENY)	
REVIEW AUTHORITY		
ISSUES         1. 142.00		
2.  122.00		
3.		
4.		
5.		
6.