MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:   

	BOARD DATE:           12 April 2000
	DOCKET NUMBER:   AR1999018349

	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. David H. Keller		Analyst	

  The following members, a quorum, were present:

	Mr. Robert G. Hinkle		Chairperson	
	Ms. Barbara J. Ellis 		Member	
	Mr. James P. Steuve		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)

APPLICANT REQUESTS:  In effect, that the determination that he was injured not in the line of duty due to his own misconduct be changed to line of duty, so that he will be entitled to disability severance pay.

APPLICANT STATES:  That while acknowledging that the major back injury he suffered on 21 August 1971 was due to his excessive drinking, he also believes there were factors outside his control that directly contributed to the event.  He asks the Board to consider the following:

He was only 18 years old and away from home for the first time.  Alcohol consumption was promoted by the Army where he was stationed; e.g., daily “happy hours” at the clubs, beer machines in the barracks, and “beer busts” after all official functions.  On 21 August 1971, he was doing what scores of other soldiers were doing at Stewart Field:  drinking to excess.

The senior enlisted personnel present in the barracks, upon observing that he was inebriated, responded inappropriately; rather than calling the military police (MP) to take him into custody and place him under observation, they locked him in his room, causing him to panic.

After his fall, rather than admit him to the hospital, the medics on duty gave him a cursory examination and released him, even though he was still inebriated and despite the seriousness of his injury.  He believes that his medical problem would not be as bad as it is if he had received proper medical attention at the time of the initial examination.

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

He enlisted on 17 February 1971 and, after training, was assigned to Fort Lee, Virginia, with duty at Stewart Field, US Military Academy (USMA), New York.  On 
30 August 1971, he was medically evacuated to Walter Reed Army Medical Center, Washington, DC.

A military police report shows that on 21 August 1971, the applicant had either jumped or fell out of a second story window of room #22 at his barracks, and was injured.  The Stewart Field dispensary was notified and dispatched an ambulance to assist.  The applicant was transported to the USMA Hospital for treatment.  The applicant’s room mates were both asleep and stated they were unaware that the applicant had jumped or fell.  A witness heard a noise at 0215, 21 August 1971, and discovered the applicant lying on the ground outside his barracks window.  Statements from the applicant’s friends revealed he had been recently confronted with marital problems.  A check with the USMA Hospital  0445 disclosed that the applicant had sustained negative injuries and that he was under a heavy influence of alcohol or other intoxicant.

A 14 September 1971 statement of medical examination and duty status (DA Form 2173) indicates that the applicant was admitted to the USMA Hospital at 1725, 21 August 1971, with an injury diagnosed as fractured vertebra resulting from his jumping out of a barracks window at Stewart Field.  Medical opinion indicated that the applicant was under the influence of alcohol and that he was mentally sound.  A blood alcohol test was not made.  The commander’s portion of the form indicated that the applicant was apparently intoxicated and fell out of a second floor window of his barracks.  The commander stated that a formal line of duty investigation was required.

On 30 September 1971, a medical evaluation board (MEB) produced diagnoses of compression fracture, T12, treated, secondary to alleged fall from barracks window; and paraparesis, secondary to Dg. #1, with improvement of level to now S1 spared paraplegia bilaterally without sensory involvement.  Line of duty:  undetermined, pending investigation.  The MEB recommended that the applicant’s case be considered by a physical evaluation board (PEB).  The findings and recommendations of the MEB were approved and, in the opinion of the approving authority, the applicant was unfit for further military duty.

A 13 October 1971 PEB found the applicant physically unfit due to vertebra, compression fracture, T-12, with cord involvement, status post decompressive laminectomy, T-11 – L-1, with residual S-1 spared paraplegia, currently at bed rest for bony healing, and recommended the applicant be placed on the temporary disability retired list with reexamination during April 1973.  The findings and recommendations of the PEB were approved contingent upon a favorable line of duty determination by the Secretary of the Army.

A 15 December 1971 report of investigation determined that the applicant and a friend, another soldier, began an “evening on the town” during the late hours of 20 August 1971, with stops to include an NCO club, a bowling alley and a pizza parlor.  At 0115 the next morning, they departed the pizza parlor and returned to the barracks.  During this period, the applicant had a “couple cans of beer” at the bowling alley and at the pizza parlor, in addition to what he had consumed at the NCO club.  According to the other soldier, he had to help the applicant walk when they departed the pizza parlor.  Upon their return to the barracks, the applicant and his friend returned to his room for a few minutes.  According to a witness in the barracks, the applicant was “loud, boisterous, and generally unruly.”  The applicant went to another room in the barracks, where he consumed more alcohol.  The people who had been drinking with the applicant realized how intoxicated he was and, according to witness statements, had to be physically returned to his room.  The applicant was both verbally and physically abusive.  He refused to remain in his room, so the other men secured his door shut with a towel from the outside.  At this time, all was quiet in the room and as the people who had put the applicant in his room began to leave, they heard moaning from outside.  According to a person who was in the room with the applicant at the time, the applicant could not stand erect and was yelling and swearing at the people who had locked him in.  These people kept antagonizing the applicant by yelling back at him.  It appeared to the investigating officer that the applicant, in his drunken state, felt he could escape his room via the window.  In the process of this escape, the applicant sustained a broken back.  The investigating officer determined that the applicant was under the influence of alcohol and that his injuries were not sustained in the line of duty.

On 22 May 1972, as a result of the foregoing line of duty determination, the US Army Physical Review Council modified the findings of the PEB proceedings by changing “intentional misconduct” from no to yes; “in line of duty” from yes to no; and recommended that the member be separated without benefits.  The disability which rendered the member unfit for retention on active duty was determined by the Secretary of the Army to be not in the line of duty..  Therefore, under law, the member was not entitled to compensation from the Army.

The applicant was discharged on 5 June 1972 with 1 year, 3 months and 19 days of creditable service.  He did not receive physical disability severance pay.

Army Regulation 600-33, in effect at the time, provided 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 2-3 of the regulation states, in effect, that the presence of intentional misconduct or willful negligence supports a finding that the injury happened not in the line of duty – due to own misconduct only if substantial evidence and a greater weight of evidence than supports any different conclusion establishes that it was the proximate cause.  Proximate cause is the connecting relationship between an act of a member and a disease or injury that results.  In general, it must appear that under the circumstances the member could have reasonably expected that the injury or disease might be caused by his conduct.  The appendix to the regulation, Principles Governing Line of Duty and Misconduct, provides specific rules of misconduct:

Rule 1 provides that injury or disease directly caused by the misconduct or willful negligence is not in the 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 the line of duty.  It is due to misconduct.  This rule is on the effect of the alcohol or 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 alcohol or 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 the line of duty.  It is due to misconduct.  The principles of rule 3 apply here.  While the mere drinking of alcoholic beverages is not misconduct, one who voluntarily becomes intoxicated is held to as high a standard of conduct as one who is sober.  Intoxication does not excuse the individual’s conduct.

Title 10, United States Code, section 1207, provides for the physical disability separation without severance pay of a member when the disability was incurred as a result of intentional misconduct, willful negligence, or during a period of unauthorized absence.

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

1.  The applicant acknowledges that the back injury that he suffered was the result of excessive drinking.  Notwithstanding his perception that the military, at the time, condoned and encouraged drinking, his actions in the early morning of 
21 August 1971 were clearly the result of his own misconduct, i.e., the abuse of intoxicating liquor.

2.  The not in the line of duty, due to own misconduct, finding was proper and in accordance with the provisions of the regulation.  The applicant is not eligible for disability severance pay because of this line of duty determination.

3.  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.

4.  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

_rgh____  ___bje___  __jps____  DENY APPLICATION

						Karl F. Schneider
						Director, Army Review Boards Agency

INDEX

CASE ID	AR1999018349	
SUFFIX		
RECON		
DATE BOARDED	20000412	
TYPE OF DISCHARGE		
DATE OF DISCHARGE		
DISCHARGE AUTHORITY		
DISCHARGE REASON		
BOARD DECISION	DENY	
REVIEW AUTHORITY		
ISSUES         1.	108.03	
2.	110.00	
3.	122.01	
4.	142.00	
5.		
6.