PROCEEDINGS

	IN THE CASE OF: 

	BOARD DATE:           20 SEPTEMBER 2001                   
	DOCKET NUMBER:   AR2000050526

	I certify that hereinafter is recorded the true and complete record of the proceedings of the Army Board for Correction of Military Records in the case of the above-named individual.  

	Mr. Carl W. S. Chun		Director	
	Mr. Kenneth H. Aucock		Analyst	

  The following members, a quorum, were present:

	Mr. Raymond J. Wagner		Chairperson	
	Mr. Kenneth W. Lapin		Member	
	Ms. Paul Mokulis		Member	

	The applicant and counsel if any, did not appear before the Board.

	The Board considered the following evidence:

	Exhibit A - Application for correction of military 
                records
	Exhibit B - Military Personnel Records (including
	            advisory opinion, if any)

FINDINGS:

1.  The applicant has exhausted or the Board has waived the requirement for exhaustion of all administrative remedies afforded by existing law or regulations.

2.  In effect, the applicant requests that the injury that he incurred on                  12 July 1998 be determined to be in line of duty and he receive physical disability retirement. 

3.  The applicant made no statement but deferred to counsel.  
 
4.  Counsel contends that the determination that the injuries sustained by the applicant was “Not in line of duty-due to your own misconduct” was in effect unfair and unjust.  Counsel provides a seven page petition:

•	Applicant was assigned to Headquarters and Headquarters Company,         1st Battalion, 119th Infantry, of the North Carolina Army National Guard.  On 12 July 1998 while enroute to the second day of a regularly scheduled IDT (inactive duty for training) he lost control of his car.  The vehicle left the road in a turn, crossed a clearing, hit an embankment, flipped across an adjoining road and entered the trees lining the side of the road.  The applicant was wearing a seat belt and was the only occupant in the car.  There were no witnesses to the accident.  He sustained permanent and severe injuries to the T6 section of his spinal cord and vertebrae resulting in permanent paralysis below his chest.
•	A trooper from the North Carolina highway patrol investigated the accident, arriving after the applicant had been removed via ambulance to a hospital.  He could not interview the applicant because of his injuries.  He found no evidence of alcohol abuse.  Based only on the physical evidence at the scene of the accident, the trooper concluded that there was probable cause that the applicant had been exceeding a safe speed; and, because it was a single vehicle accident, and because the applicant was at that time 18 years old, decided to charge him with operating a motor vehicle “without due caution and circumspection and at a speed or in a manner so as to endanger persons and property.”
•	On 27 July 1998 the applicant’s commander appointed an investigating officer to conduct a formal line of duty investigation.  That same day the investigating officer (IO) notified the applicant of his investigation, requesting to interview him the following day.  It appears that the IO interviewed the applicant on      28 July 1998, and the applicant declined to make a statement.  The IO also interviewed an NCO, a member of the applicant’s unit, who stated that he observed the applicant and another soldier driving recklessly on                     2 February 1998, and who also stated that the applicant was counseled regarding his driving habits on or about 2 May 1998.
•	On 28 July 1998 the IO notified the applicant that he had concluded his investigation and found his injuries to be “not in line of duty-due to your own misconduct.”  He informed the applicant that he would consider any rebuttal evidence sent within 10 days of receipt of the letter.
•	The applicant’s attending physician completed the DA Form 2173 (Statement of Medical Examination and Duty Status), and opined that the applicant was not under the influence of drugs or alcohol, that he was not mentally sound at the time of the examination, and that the injury was incurred in the line of duty.  The basis for his opinion appeared to be an interview with the applicant.
•	The IO found that intentional misconduct or neglect was the proximate cause of the applicant’s injury, and gave as the reason for his findings that the applicant was exceeding the speed limit by 25 MPH (80 mph in 55 mph zone) on a rural 2-lane road and was charged with careless and reckless driving.  The applicant ignored a 45 mph warning sign for the curve/intersection prior to the accident.  The IO stated that the applicant’s willful misconduct of driving his vehicle in a careless and reckless manner was the justification for a finding on not in line of duty.  The letter of notification to the applicant was not sent by certified mail, and no proof of service or notification was obtained. 
•	Six days after the IO sent the letter to the applicant, the reviewing authority approved the findings and conclusions of the investigation.  The final approving authority approved the LOD findings on 14 August 1998.
•	Counsel attaches a copy of the monthly training schedule for the unit showing that the first formation was to be held at 0745 hours.  He includes a copy of the applicant’s rebuttal statement of 8 August 1998, in which the applicant stated that he was driving to drill and did not remember what happened during the accident.  Included is a copy of a statement from the applicant’s father.
•	On 24 August 1998 the court case concerning the applicant was continued upon agreement between the state and the defendant (applicant).  On            5 October 1998 the case was dismissed by the state because the trooper did not want to prosecute.
•	The applicant appealed the findings of the LOD.  In a telephone conversation between the applicant’s attorney and a Judge Advocate General Corps officer in the National Guard Bureau, the latter advised that language specifically indicating that insufficient evidence to prosecute was necessary to reverse the finding of not in line of duty.  On 10 April 2000 the district attorney for the 3A judicial district entered an amended dismissal, which stated “There is insufficient evidence to warrant prosecution for the following reasons: This was a one car accident.  There were no witnesses to establish the speed or manner in which the defendant was driving the motor vehicle.  There is insufficient evidence to prosecute this case as charged.”   On                       28 September 2000 in reply to the applicant’s request for reconsideration of the adverse findings in the LOD investigation, the National Guard Bureau advised the applicant’s attorney that the evidence submitted did not warrant a change in the LOD finding.

5.  Counsel quotes from Army Regulation 600-8-1, paragraph 39-5c, “Line of duty findings must be supported by substantial evidence and by a greater weight of evidence than supports any different conclusion.”  Counsel argues that the IO based his decision in part upon the inconclusive evidence of the trooper’s pending charge of careless and reckless driving, and in part upon the “witness” statement of an NCO in the applicant’s unit, who did not witness the accident.  The charges brought by the trooper were preliminary at the time of the investigation and determination of not in line of duty, and were subsequently dropped for lack of evidence.  The applicant was not convicted of careless and reckless driving or any other charge.  Appendix F of Army Regulation 600-8-1, governing line of duty and misconduct determinations, states that “mere violation of civil or criminal laws, if there is no further sign of misconduct, is no more than simple negligence.”  Even if it could be inferred that the applicant was exceeding the speed limit and/or exceeding a safe speed, that was still only evidence of simple negligence or misconduct and should not have been considered substantial evidence of willful or intentional misconduct.  Appendix F further states that any such violation, which in that case there was none, was only one factor to be examined and weighed with other circumstances, and that there was no other competent or substantial evidence to support the conclusion of not in line of duty.

6.  Counsel discounts the statement made by the NCO in the applicant’s unit, stating that he was not a witness to the accident.

7.  Counsel states that the IO failed to observe the procedural requirements set forth in Army Regulation 600-8-1 concerning reasonable time to respond to evidence of an adverse determination, and use of certified mail and a signed receipt attached to the investigation.  He also states that the IO sent his final report to the reviewing authority without waiting for any rebuttal evidence that might be submitted by the applicant.  He went on to say that the applicant was under incapacitating drugs when he was interviewed by the IO and when he was requested to present rebuttal evidence.  The applicant’s statement on                  8 August 1998, in which he stated that he was driving and the next thing he knew he was involved in an accident, could reasonably and logically be interpreted that the applicant had fallen asleep at the wheel.  Counsel again quotes from Appendix F, in which rule 8 states that 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 .  Counsel states that the logical conclusion that the applicant fell asleep could have been reached by the IO, or the reviewing and final approval authority, if the applicant’s statement had been included in the record.  Further, that logical conclusion would have weighed against the inference of willful misconduct reached by the IO and tilted the evidential balance in favor of finding of simple negligence at most, if not a finding of no negligence.  This failure to include the statement warranted a reconsideration of the investigation and a finding of in line of duty.
8.  Counsel argues that the mere appearance of impropriety associated with the manner in which the investigation was conducted was the most serious and compelling reason warranting the review and reversal of the line of duty determination, regardless of whether actual bias or prejudice existed in the mind of the IO.  Counsel cites the time involved in the investigation, from its onset to its conclusion, and stated that a truly meaningful consideration of the facts could not have been given when the IO not only interviewed the applicant on one day, but also completed the investigation that same day, turning in his findings within five days.  The reviewing and approving authorities approved the findings and conclusion within five days of its conclusion without first ascertaining whether any rebuttal evidence had been offered.

9.  Counsel states that the LOD determination should be changed to show that the applicant’s injuries were in line of duty, the order discharging the applicant from the National Guard and the Reserve of the Army should be voided, and that he should be found physically unfit for duty and permanently retired with a physical disability rating of 100 percent.

10.  The evidence is that submitted by the applicant’s attorney, most of which has been recounted by that person.  The circumstances concerning the applicant’s accident is as related by counsel.  

11.  A North Carolina Uniform Citation shows that the patrol officer had probable cause to believe that on or about  0700 hours on 12 July 1998 the applicant did unlawfully and willingly operate a motor vehicle without due caution and circumspection and at a speed or in a manner so as to endanger persons and property.  Attached to that citation is a diagram of the accident, which also shows that the estimated speed of the applicant’s vehicle was 80 mph (in a 55 mph speed limit zone), and that the charge against the applicant was careless and reckless driving.  There is no indication whether the trooper or anyone else witnessed the accident.  

12.  The IO was appointed as such on 27 July 1998, and the applicant was apparently interviewed the next day, submitting a sworn statement in which he declined to submit a statement concerning the incident.  Also, on that day, an NCO in the applicant’s unit made a statement concerning the applicant’s driving on 2 February 1998, as stated by counsel.  The IO completed his investigation also on that day, stating the circumstances of the accident, to include the statement that the applicant was not late for drill, and also including the remark that the applicant had been previously counseled about driving in a careless manner.  The IO stated that the applicant’s willful misconduct of driving his vehicle in a careless and reckless manner was the justification for a finding of not in line of duty. 
13.  The findings were determined to be legally sufficient and the reviewing officer approved the findings on 3 August 1998.  The Chief of the National Guard gave final approval on 14 August 1998.

14.  In a 16 July 1998 letter the medical director, trauma service, at the East Carolina University department of surgery stated that the applicant had sustained head and spinal cord injuries and remained in the neurosurgical intensive care unit; and he was not able to sign his name at that time.  

15.  The unit monthly training schedule shows that the first formation for the unit on 12 July 1998 was scheduled for 0745 hours. 

16.  A 21 July 1998 medical record shows the applicant’s physical condition as a result of the accident, the medical assessment, rehabilitation assessment and goals.

17.  On 8 August 1998 the applicant stated that he was driving down to Washington to drill.  After that he could not remember anything.

18.  On 5 October 1998 the district attorney entered a dismissal of the charges against the applicant, stating that the trooper did not want to prosecute because the applicant was a paraplegic as a result of the accident.  On 10 April 2000 the prosecutor entered a dismissal because there was insufficient evidence to warrant prosecution.  He stated that it was a one car accident.  There were no witnesses to establish the speed or manner in which the defendant (applicant) was operating the motor vehicle.  There was insufficient evidence to prosecute the case as charged.   

19.  The remaining documents pertain to the applicant’s appeals and the responses thereto.  His appeal of 4 December 1998 was forwarded by the National Guard Bureau on 30 July 1999 to the Total Army Personnel Command (PERSCOM).  On 13 September 1999 the PERSCOM Staff Judge Advocate concurred with the finding of “not in line of duty-due to own misconduct.”  That officer stated that the investigation complied with the regulatory legal requirements and there were no error in the record which had a material or adverse effect on the applicant’s rights.  He stated that substantial evidence supported the findings and the record did not indicate the existence of any potential medical claims.  

20.  On 15 September 1999 the PERSCOM denied the applicant’s appeal and affirmed the finding of not in line of duty-due to own misconduct.  The PERSCOM stated that the dismissal of the reckless driving charge alone was not a persuasive basis to change the finding and there was no other evidence submitted by the applicant.

21.  Army Regulation 600-8-1, paragraph 37-1, observes the line of duty analysis determines under which circumstances the Army is responsible for the care and costs of medical care for a disease, injury, or death incurred by a service member or reservist.  Paragraph 39-1 cites the cardinal rule that a person injured by intentional misconduct or willful negligence can never be said to be injured, diseased, or deceased in the line of duty, and provides that line of duty determinations should be in compliance with the orderly and deliberate procedures of Army Regulation 600-8-1 because persons ruled not in the line of duty lose substantial benefits.

22.  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.

23.  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 this 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 than 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. 

24.  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.

25.  Paragraph 40-8a incorporates evidentiary standards of Army          Regulation 15-6.  Paragraph 3-6a of that regulation states that anything in the minds of reasonable persons is relevant and material to an issue and may be accepted as evidence.  For example, medical records, counseling statements, police reports, and other records may be considered.

26.  Army Regulation 600-8-1, paragraph 40-9, requires the appointing authority to determine if substantial evidence supports the findings of the investigation.  Substantial evidence as defined by the United States Supreme Court is “such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.” 

27.  Appendix F, Rules Governing Line of Duty and Misconduct Determinations, provides specific rules of misconduct:

28.  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.

29.  Rule 2 states that mere violation of military regulation, orders, or instruction, or of civil or criminal laws, if there is no further sign of misconduct, is no more than simple negligence.  Simple negligence is not misconduct.  Therefore, a violation under this rule alone is not enough to determine that the injury or disease resulted from misconduct.  However, the violation is one factor to be examined and weighed with the other circumstances.

30.  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.

31.  Rule 9 states that injury because of erratic or reckless conduct without regard for personal safety or the safety of others, is not in the line of duty.  It is due to misconduct.  The rule has its chief application in the operation of a vehicle, but may be applied with any deliberate conduct which risks the safety of self or others.  

32.  Army Regulation 635-40 establishes the Army physical disability evaluation system and sets forth policies, responsibilities, and procedures that apply in determining whether a soldier is unfit because of physical disability to reasonably perform the duties of his office, grade, rank, or rating.  It provides for medical evaluation boards, which are convened to document a soldier’s medical status and duty limitations insofar as duty is affected by the soldier’s status.  A decision is made as to the soldier’s medical qualifications for retention based on the criteria in AR 40-501, chapter 3.  If the MEBD determines the soldier does not meet retention standards, the board will recommend referral of the soldier to a PEB.

33.  Physical evaluation boards are established to evaluate all cases of physical disability equitably for the soldier and the Army.  It is a fact finding board to investigate the nature, cause, degree of severity, and probable permanency of the disability of soldiers who are referred to the board; to evaluate the physical condition of the soldier against the physical requirements of the soldier’s particular office, grade, rank or rating; to provide a full and fair hearing for the soldier; and to make findings and recommendation to establish eligibility of a soldier to be separated or retired because of physical disability.

CONCLUSIONS:

1.  The line of duty investigating officer based his findings on the information provided by the North Carolina patrol officer, who had indicated that the applicant was traveling at an estimated speed of 80 miles per hour (in a 55 mph speed limit zone) and was driving in a careless and reckless manner; and the information that the applicant had been counseled for his reckless driving on 8 February 1998.  Nevertheless, there were no witnesses to establish the speed or manner in which the applicant was driving his vehicle (notwithstanding the citation issued by the patrol officer), as evidenced by the dismissal of the charge against the applicant by the state of North Carolina on 10 April 2000, and whereas police reports are authorized as a basis for a not in line of duty finding, more meaningful circumstantial evidence, derived from a scientific analysis of the scene could have been used to reconstruct the likely sequence of the accident and served as a basis for affixing liability.  The investigating officer could have conducted a more in-depth inquiry to support his conclusion that the applicant was traveling at an estimated 80 miles per hour.  He did not do this and the record is devoid of any such detail.  The information provided by an NCO of the applicant’s unit that the applicant had been counseled in May 1998 for his reckless driving on            8 February 1998, is not evidence that the applicant was driving recklessly on the date of the accident.

2.  The rules as set forth by the Secretary of the Army require investigating officers to perform an orderly investigation.  Investigating officers have a special duty of care to be thorough and comprehensive.  In this case, speed is a factor, and as noted above, the investigating officer provided no foundation to his conclusion that the applicant was driving 80 miles per hour.  There were other factors that could have entered into the equation, e.g., road factors, other vehicles, traffic conditions, weather, mechanical condition of the car, applicant’s physical condition, driving experience, and so forth.  None of these factors were looked into.  The line of duty investigation failed to comply with the requirements set forth in the regulation.      

3.  The National Guard Bureau denied the applicant’s appeal on 22 June 1999  and the PERSCOM denied the applicant’s appeal on 15 September 1999, both after the district attorney entered a dismissal of the charge of careless and reckless driving against the applicant (because the patrol officer did not want to prosecute); however, before the 10 April 2000 dismissal of the charge because there were no witnesses to the accident and there was insufficient evidence to prosecute the case.  However, on 28 September 2000 the National Guard Bureau advised the applicant’s attorney that the evidence submitted by the applicant [presumably the evidence of the 10 April 2000 dismissal of the charge) did not warrant a change in the LOD finding. 

4.  Nonetheless, there were no witnesses to the accident.  The charges were dropped because there was insufficient evidence to prosecute the case.  The information provided by an NCO of the applicant’s unit is not evidence of careless or reckless driving on the part of the applicant on the date of the accident.  There is no substantial evidence to refute the presumption that the applicant’s injuries were in line of duty, and therefore, there is no substantial evidence to support the findings of the line of duty investigation, notwithstanding the determinations to the contrary.     

5.  After a careful review of the facts adduced at the time of the line of duty report, facts developed after the report was completed and the regulatory standards covering line of duty determinations, the Board is satisfied that the original line of duty investigation is unreliable and wrong.  Consequently, the applicant’s injuries that he received as a result of his accident on 12 July 1998 are considered to have been in line of duty.  All his personnel records should be changed accordingly, to include the line of duty investigation, actions by the appointing, approving, final, and appellate authorities, other intermediate officials, the National Guard Bureau, and PERSCOM.  

6.  There is no evidence concerning the applicant’s discharge from the Army National Guard, other than the information provided by the applicant’s attorney indicating that he had been discharged.  The documentation submitted shows that he is a paraplegic.  It almost goes without saying that he was discharged because of his physical disability, and that he is not receiving any benefits because his injuries were determined to be not in line of duty.

7.  In view of the decision by this Board that his injuries were in line of duty, and considering the nature of his disabilities, it would be appropriate to revoke any order discharging the applicant from the Army National Guard and the Army Reserve.  Any such order is inoperative, without legal effect, and is to be expunged.  The applicant should be restored to the Army National Guard/Army Reserve, as appropriate, retroactive to his 1999 membership as though he had never been separated.  If his normal enlistment period would have expired between the time of his retroactive restoration and the date of the Board’s relief in this case, the applicant should be reenlisted for the maximum period allowed under law, as determined by the National Guard Bureau.  The applicant is entitled to back pay for any period to which he is restored to the active Guard or Reserve. 

8.  The applicant should be referred into the Army physical disability system.  Therefore, the Army Physical Disability Agency should schedule a medical examination for the applicant in accordance with the procedures contained in Army Regulation 635-40, as soon as possible. 

9.  In view of the foregoing, the applicant’s records should be corrected as recommended below.

RECOMMENDATION:

That all of the Department of the Army records related to this case be corrected by:

     a.  showing that the applicant’s injuries that he received as a result of his accident on 12 July 1998 were in line of duty; 

     b.  revoking any order discharging the applicant from the Army National Guard and as a Reserve of the Army, as appropriate.  Any such order is null and void and of no force or effect; 

     c.  restoring the applicant to the Army National Guard/Army Reserve, as appropriate, retroactive to his 1999 membership as though he had never been separated.  If his normal enlistment period would have expired between the time of his retroactive restoration and the date of the Board’s relief in this case, the applicant is hereby reenlisted for the maximum period allowed under law, as determined by the National Guard Bureau.  The applicant is entitled to back pay for any period to which he is restored to the active Guard or Reserve; and

     d.  referring the applicant into the Army physical disability system.  In this respect, the Army Physical Disability Agency will schedule a medical examination for the applicant in accordance with the procedures contained in Army               Regulation 635-40.

BOARD VOTE:  

________  ________  __KWL__  GRANT AS STATED IN RECOMMENDATION

________  ________  ________  GRANT FORMAL HEARING

__PM__ _  __RJW__  ________  DENY APPLICATION

		__Raymond J. Wagner___
		        CHAIRPERSON

INDEX

CASE ID	AR2000050526	
SUFFIX		
RECON	YYYYMMDD	
DATE BOARDED	20010920	
TYPE OF DISCHARGE	(HD, GD, UOTHC, UD, BCD, DD, UNCHAR)	
DATE OF DISCHARGE	YYYYMMDD	
DISCHARGE AUTHORITY	AR . . . . .  	
DISCHARGE REASON		
BOARD DECISION	GRANT	
REVIEW AUTHORITY		
ISSUES         1.		
2.		
3.		
4.		
5.		
6.