MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:  

	BOARD DATE:  2 November 2000
	DOCKET NUMBER:  AR2000043555

	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. Carl W. S. Chun		Director	
	Mr. Lee Cates		Analyst	

  The following members, a quorum, were present:

	Mr. Fred N. Eichorn		Chairperson	
	Mr. William D. Barr		Member	
	Mr. Ted S. Kanamine		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: That the investigative finding of “not in line of duty” be changed to “in line of duty”.

APPLICANT STATES: That, at the time of the accident, intoxication was only one factor to be considered.  He was not given the opportunity to examine the investigation, as required, before it was approved.  That he had a small window in which to drive home before the alcohol he had consumed was absorbed into his blood.  At the time his blood was checked and confirmed to have a blood alcohol content (BAC) of .175, he contends the alcohol had then had time to spread into his blood stream.  The applicant further contends that the cause of the accident was a bottle being thrown at him from a moving car; swerving to avoid danger; and the poor road conditions.  He provides military documentation in support of his request.  Additionally, he provides extracted pages from the “Forensic Science Handbook”, by Richard Safer-Stein.

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

During the period 20 April 1995 to 9 August 1997, the applicant served in the 255th Medical Detachment as a Preventive Medicine Noncommissioned Officer and Team Leader in military occupational specialty 91B (Medical Noncommissioned Officer).  He held the position of Unit Drug and Alcohol coordinator.

On 9 August 1997, a Military Police Report indicated that at about 0145 hours, in Caldogno, Italy, the applicant was involved in a one-vehicle accident.  The report indicates he was charged with a traffic accident involving personal injury or destruction of property; failure to maintain control; and drunken driving.  At the time he arrived at the medical facility, his BAC was .175.

On 11 August 1997, a Medical Service Corps officer (Patient Administrator) completed the attending physician or hospital patient administrator portion of DA Form 2173 (Statement of Medial Examination and Duty Status), item 11 (Medical Opinion): a. Individual was under the influence of alcohol.  b. Individual was mentally sound.  c. Injury is not likely to result in a claim against the Government for future medical care.  d. Injury was incurred in line of duty.  Basis for opinion: no entry.

On 12 August 1997, legal authorities opined that sufficient evidence existed to charge the applicant with the offenses of drunken driving and failure to maintain control.

On 22 October 1997, a Report of Investigation (ROI) was conducted which found him in the line of duty; violating regulations by driving drunk and should be punished, and that there was insufficient evidence to indicate that misconduct was the cause of the accident.
On 17 November 1997, a superior commander disapproved the ROI findings and found the applicant to be “not in the line of duty – due to own misconduct”.  This decision was based on the BAC of .175 and that BAC of .1 or higher while driving is considered driving while intoxicated (DWI).

On 8 March 1998, the applicant appealed the line of duty determination.  His reasons were that he was not intoxicated; the accident was caused by the misconduct of another person; and the LOD investigation was insufficient.  He indicates he entered the Crazy Bull Bar at 2250 hours; ordered a couple of beers (1 liter); and started talking with a young Italian female.  Thereafter it became clear that his attentions towards the young female were not appreciated and that he was not welcome in the bar; he quickly drank his beers and decided to go home.  He contends that the locals that did not appreciate his presence in the bar approached him from the opposite direction, throwing a bottle at him.  In his attempt to dodge the bottle, he lost control of his motorcycle and wrecked.  He explains how alcohol enters the bloodstream and how long it would be before he became intoxicated.  He contends he was not intoxicated at the time of the accident, since 1 hour and 15 minutes to 3 hours had elapsed since drinking the beers.

On 10 March 1998, in a sworn statement, he indicates that as he was departing around 2330 hours, the bartenders ordered him two more 1 liter beers and he quickly drank them and left at 2350 hours.

One extract entitled “The Determination of Alcohol in Blood and Breath” indicates either all the alcohol is taken at once or relatively large quantities are consumed over a relatively short period of time (1 hour or less), the alcohol concentration rises to a maximum in 30 to 90 minutes.  Then it falls at a relatively constant rate, which is a reflection of the body’s ability to eliminate the substance.

He appealed the LOD status, which was found to be not in the LOD – due to own misconduct for the head injury and fractures to his femur, patella, and pelvis, which he sustained on 9 August 1997, in Caldogno, Italy.  The Commander, Total Army Personnel Command, denied the appeal on 25 June 1998.

Army Regulation 600-8-1 (Army Casualty and Memorial Affairs and Line of Duty Investigations) indicates, in pertinent part, that DWI is misconduct and that misconduct is a basis for a “Not in the Line of Duty” determination. 

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 has not furnished any evidence to show that he was not intoxicated at the time of his accident and injury, or that the misconduct was not the cause of the accident.

2.  The evidence he has provided supports the fact that he was intoxicated at the time of his accident.  He admits to ordering two beers upon arrival at 2230 hours and drinking two beers between 2330 and 2350 hours (provided by the bartender in honor of his promotion) on the evening of 8 August 1997.  According to written documentation provided by the applicant, he should have reached the maximum percentage of alcohol concentration in 30 to 90 minutes (between approximately 2300, 8 August to 0020, 9 August 1997.  The time of the accident was listed as 0145 hours, 9 August 1997, about 3 hours after he drank the [four] beers.  Therefore, when the BAC was accomplished, the alcohol concentration would be falling, not rising.  Based on the documents provided in support of this request, the applicant’s BAC had been much higher.

3.  His contentions have been noted; however, they are not supported by his application or the evidence of record.  His actions were not in the line of duty, due to his own misconduct.  He has failed to show otherwise.

4.  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 this requirement.

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

__fe__  ___wb___  __tk____ DENY APPLICATION

		    Carl W. S. Chun
		    Director, Army Board for Correction
    of Military Records

INDEX

CASE ID	AR2000043555	
SUFFIX		
RECON	YYYYMMDD	
DATE BOARDED	20001102	
TYPE OF DISCHARGE	(HD, GD, UOTHC, UD, BCD, DD, UNCHAR)	
DATE OF DISCHARGE	YYYYMMDD	
DISCHARGE AUTHORITY	AR .  .  .  .  .  	
DISCHARGE REASON		
BOARD DECISION	(NC, GRANT , DENY, GRANT PLUS)	
REVIEW AUTHORITY		
ISSUES         1.100	LOD investigation	
2.		
3.		
4.		
5.		
6.