MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:

	BOARD DATE:  24 November 1999                           
	DOCKET NUMBER:   AR1999023269

	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	
	Ms. Rosa M. Chandler		Analyst	

  The following members, a quorum, were present:

	Mr. Raymond V. O’Connor		Chairperson	
	Mr. Robert G. Hinkle		Member	
	Mr. Lester Echols		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:  The widow of the former service member (FSM) requests reconsideration of her original request to correct the FSM's military record by deleting the negligent homicide charge and adding "no fault." 

APPLICANT STATES:  The spouse of the FSM contends that she believes that the FSM was unjustly blamed for causing an accident.  She believes that the accident was not properly investigated.  She believes that the United States had just bombed Libya and that German sentiments towards American were very hostile.  The Germans blamed the FSM for the accident and the American Military accepted the conclusion that the Germans had drawn about the accident due to the fact that they did not want to further exacerbate the anti-American hostility and tension.  Further, she states that there are several discrepancies in the reports that she received from the Army, US Air Force (USAF) from the Veterans Administration (VA).  The autopsy protocol stated that on 8 August 1986, at 
0930 hours, the USAF, Regional Medical Center, APO New York 09220-5300, removed blood from the FSM’s heart and performed toxicological studies.  “However, an SF547, Chemistry 11 states specimen taken was on 11 August 
1986 with results rendered on 14 August 1986.” A DA Form 3975 shows that photos are available, and a DA Form 3946 states that there were witnesses to the accident, however, there are no witness statements, neither are there any photos of the accident available.  No blood tests were done on the occupants of the vehicle driven by the German civilian.  The skid marks were chalked off to such an extent that the evidence of the marks was damaged.  In support of her request she submits a personal summary, a bill of lading and a statement from the Houston, Texas, Medical Examiner's Office.

NEW EVIDENCE OR INFORMATION:  Incorporated herein by reference are military records which were summarized in a memorandum prepared to reflect the Board's original consideration of the case on 11 July 1990 (COPY ATTACHED).  

The attached Army Board for Correction of Military Records (ABCMR) Memorandum of Consideration shows that the FSM, while serving in Germany was killed in a vehicle accident.  The FSM lost control of his vehicle and collided with a vehicle driven by a German civilian.  Both drivers were killed in the accident.  The FSM was charged with negligent homicide and drunk driving as a result of the measurements of the skid marks and his excessive alcohol blood level.  The FSM was traveling at "no less than 107 kilometers per hour in a 60 kilometer speed zone." 

The bill of lading the applicant provided shows that the FSM’s remains were 
enroute to Houston, Texas on 11 August 1986.

Further, a Houston,Texas, Medical Examiner’s Office contends in a written statement provided by the applicant, that it would have been impossible for an accurate blood alcohol test to be rendered due to the seriousness of the burns and the rupturing of the internal organs of the FSM.  Further, he alleges that the alcohol and toxic levels rise three times the original amount after a death of this nature.

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.  That the FSM lost control of his vehicle and was involved in a fatal accident due to excessive speed.  The records that are available show that alcohol was a contributing factor. 

2.  The ABCMR is not an investigative agency.  The ABCMR does not have the resources to conduct investigations.  However, the records that are available clearly show that even if alcohol were ruled out, negligent homicide would still have been fully supported by the FSM's excessive speed.

3.  The Board is not inclined to accept the Texas Medical Examiner's explanation of possible invalid toxicology results established at the time of the investigation in 1986, since he did not examine the FSM's remains.  The Board must conclude that the examiner's conclusions are only speculative in nature. 

4.  The Board empathizes with the applicant; however, the overall merits of the case, including the latest submissions and arguments are insufficient as a basis for the Board to reverse its previous decision.

5.	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

RVD____  RGH____  LE_______  DENY APPLICATION

						Loren G. Harrell
						Director

INDEX

CASE ID	AR1999023269	
SUFFIX	YYYYMMDD	
RECON	YYYYMMDD	
DATE BOARDED	(HD)	
TYPE OF DISCHARGE		
DATE OF DISCHARGE	YYYYMMDD	
DISCHARGE AUTHORITY	AR . .  	
DISCHARGE REASON	A93.19	
BOARD DECISION	(NC)	
REVIEW AUTHORITY		
ISSUES         1.	144.9319	
2.		
3.		
4.		
5.		
6.