PROCEEDINGS

	IN THE CASE OF:  

	BOARD DATE:           10 July 2003                  
	DOCKET NUMBER:   AR2002068749

	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	
	Ms. Rosa Chandler		Analyst	

  The following members, a quorum, were present:

	Mr. Roger W. Able		Chairperson	
	Ms. Barbara J. Ellis		Member	
	Mr. Larry C. Bergquist		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.  The applicant requests that DD Form 261 (Report of Investigation - Line of Duty and Misconduct Status), dated 10 August 1998, be corrected by changing the findings of the line of duty investigation (LODI) from "not in the line of duty-due to own misconduct" to "in the line of duty."

3.  The applicant states, in effect, that he was not given a fair chance to refute the LODI.  He adds that the Department of Veterans Affairs (DVA) has determined that his injury occurred "in the line of duty" insofar as entitlement to medical care; however, he still wants the Army to change its LODI as a matter of "personal integrity."  He submits in support of his request a copy of the LODI proceedings to include witness statements and legal reviews that were conducted in conjunction with the LODI.

4.  The applicant is of Hispanic descent.  His military records show that, prior to the period of enlistment under review, he served honorably in the Regular Army (RA) from 22 February 1996-2 March 1998 in military occupational specialty (MOS) 12B, Combat Engineer.  On 3 March 1998, he reenlisted for 3 years in pay grade E-4 and for MOS 11B, Infantryman.

5.  In 1998, the applicant was assigned to a unit at Fort Carson, Colorado.  In late February or early March 1998, the applicant attended a party at a residence on Fillmore Street in Colorado Springs, Colorado.  An altercation occurred between the applicant, several fellow soldiers [of Hispanic descent] and members of a local Hispanic gang.  When gang members went to obtain handguns, the applicant and his friends left the party.  Prior to departing, they vandalized a gang member's car.  The gang members vowed revenge.

6.  On 8 March 1998, the applicant and several fellow soldiers from Fort Carson were at a civilian nightclub in Colorado Springs.  Also present were members of the Hispanic gang from the Fillmore Street party.  Words were exchanged, both groups engaged in a fight in the parking lot.  When the gang members gained the upper hand, the soldiers ran.  The applicant ran to his vehicle and attempted to drive away, but was shot in the head while leaving the altercation.  Two other soldiers also received injuries.

7.  A LODI was initiated to determine whether the applicant's gunshot wound occurred in the line of duty.  The investigation revealed that the applicant and his soldier friends received word that the Hispanic gang would be at the nightclub on 8 March 1998, and that the gang was spoiling for a fight.  The soldiers rented a van and drove to the club specifically to fight with the gang.  The applicant was armed with a knife; at least one other soldier carried a baseball bat.  When the two groups met at the nightclub, provocative words were exchanged.  The parties 

went outside to the parking lot, a fight ensued, the soldiers were overwhelmed and they soon retreated.  The applicant got in the rented van and drove a short distance, then stopped to pick up a friend.  A gang member in a car approached the van while it was in motion, produced a gun, and shot the applicant in the head.  Prior to this point in time, no firearm had been produced during the affray.

8.  The LODI investigating officer interviewed soldiers who were present at the nightclub on 8 March 1998.  Those interviews resulted in sworn statements being taken on DA Forms 2823 (Sworn Statement).  The statements confirmed that the applicant went to the nightclub on 8 March 1998 specifically for the purpose of fighting the Hispanic gang with the realization that "someone could get shot."  A statement from the civilian police officer who investigated the incident indicated, "[Applicant] engaged in the initial fight, but once the fight was over he retreated, he did not provoke being shot at, and was attempting to get his friends out of the area and to safety."

9.  The LODI investigating officer found the applicant's injuries did not occur in the line of duty and were due to his own misconduct.  The investigating officer cited Rule 7 of Army Regulation 600-8-1, dated 18 September 1986, which states:

"Injury caused by wrongful aggression or voluntarily taking part in a fight [emphasis added] or like encounter, in which one is equally at fault in starting or continuing, is not in line of duty.  It is due to misconduct.  An injury received by a member in an affray in which he is the aggressor is caused by his own misconduct.  This rule does not apply when a person is the victim of an unprovoked assault and he sustains injuries in an attempt to defend himself.  Provocative actions or language used by the member, in which a reasonable person would expect retaliation, is a willful disregard for personal safety, and injuries directly resulting there from are due to misconduct.  When an adversary uses excessive force or means that could not have been reasonably foreseen in the incident, the resulting injury is not considered as having been caused by misconduct [emphasis added].  Except for self-defense, for a member to persist in a fight or other encounter after his adversary produces a dangerous weapon is to act in willful disregard for safety and is willful negligence."

10.  The investigating officer reasoned that the applicant went to the club on 8 March 1998 to finish a fight started at an earlier altercation during the party on Fillmore Street in Colorado Springs.  He exchanged inflammatory words with 

members of the gang.  He knew, along with his fellow soldiers, that the local gang may have had guns and that "someone could get shot;" both groups had baseball bats and knives.  The fight had already escalated to "excessive force;" therefore, the fact that one side used deadly force should not have been a surprise.

11.  The LODI concluded that the applicant's injuries were "not in the line of duty - due to his own misconduct."  On 9 September 1998, the appointing authority and the reviewing authority approved the findings.

12.  On 15 September 1998, the investigating officer notified the applicant that he had concluded his investigation and found the applicant's injuries to be "not in the line of duty-due to his own misconduct."  The applicant was advised of his rights and told that he had 30 days to appeal the findings in writing or to submit rebuttal evidence.  

13.  On 25 December 1998, the applicant appealed the findings of the LODI.  In a written statement, he indicated that he believed his injuries were sustained in the line of duty despite the findings of the LODI officer because:  the investigating officer was biased; the investigating officer failed to appropriately evaluate evidence gathered by a Colorado Springs police detective involved in the investigation of the shooting incident; that the detective found the applicant was not at fault; that his injury was the result of him simply being in the wrong place at the wrong time; that he gave a statement prior to the investigation being completed; that the most damaging statements were taken by the LOD investigating officer months after the incident in July and August 1998; that the person giving the most damaging evidence had given civilian police a totally different statement on the night of the incident; that he had not been provided the opportunity to see the statements or to respond to the statements prior to the investigation being completed; that the LOD investigating officer indicated that he carried a "12 inch knife" to the club when, in fact, he carried a Leatherman's utility tool that never came out the sheath; that he had been an exemplary soldier; that he demonstrated that he was a person of strong character, personal integrity and reliability; that he did not go to the club to fight; that he had no knowledge that the gang would be at the club; that the findings of the LODI under the provisions of Army Regulation 600-8-1 does not apply to him, because he was defending himself; that he was not armed and that he was shot by an unprovoked assailant while he was trying to leave the scene of unexpected, unplanned violence.  The applicant provided a police report and new witness statements.  

14.  The investigating officer, after reviewing the applicant's rebuttal statement, and the additional documents still found the applicant's injury not to be in the line of duty.  The findings were determined to be legally sufficient by the local Staff Judge Advocate and the reviewing officer approved the findings on 11 January 1999.  The completed LODI packet was forwarded to the US Total Army Personnel Command (PERSCOM), Alexandria, Virginia.

15.  On 17 March 1999, a soldier who provided a sworn statement recanted his statement by stating that "the applicant never said that 'someone might get shot';" that neither the applicant nor the others went to the club to fight; that they would not have gone to the club if they had known they were going to get jumped or if they had known that weapons were going to be present; and that he was pressured by his chain of command to make a statement.  On an unknown date in March 1999, a second soldier retracted his sworn statement by indicating that he was confused after the incident; that the investigating officer intimidated him by telling him that he would prosecute him under the Uniform Code of Military Justice if he gave a statement that was different from the statement that he had given the police investigating the incident.  He stated none of the soldiers, to include the applicant, knew the local gang would be at the club or that weapons would be present.

16.  On 7 June 1999, the Chief, Mortuary Affairs and Casualty Support Division, PERSCOM, after reviewing the applicant's line of duty determination, sent the packet back to Fort Carson for further clarification of certain points raised by the applicant in his rebuttal.  The Fort Carson Casualty Office reviewed the LODI to determine:  (1) whether it was proper for three separate LODI officers to be named to investigate injuries to three individuals involved in the same incident; (2) whether undue influence or coercion were factors in witness statements taken for the applicant's LODI; and (3) whether the results were inconsistent in the three LODI determinations.

17.  The Fort Carson Casualty Office and the Fort Carson Staff Judge Advocate's Office determined that:  (1) the three soldiers who were injured and had a LODI conducted as a result of the 8 March 1998 fight were from separate brigades and that each soldier had a separate LODI appointing/approving authority based on special court-martial convening authority; (2) the witnesses were not coerced into making statements indicating that the applicant went to the nightclub looking for trouble and knowing that deadly weapons could be involved; and (3) the LODI determinations for the three injured soldiers were consistent with the rules governing the conduct of a LODI.

18.  On 2 September and 29 October 1999, the Mortuary Affairs and Casualty Support Division, PERSCOM, informed the applicant that a review of the facts and circumstances surrounding his LODI supported the conclusion that he voluntarily went to the nightclub, engaged in proactive actions or language for which a reasonable person would expect retaliation, and voluntarily participated in an altercation.  His actions constituted a willful disregard for his own personal safety.  It was pointed out that his LODI had undergone several administrative and legal reviews and that they all supported the view that his injuries were "not in the line of duty-due to misconduct."  He was also advised of his right to appeal to the Army Board for Correction of Military Records (ABCMR).

19.  On 1 October 1999, the Colorado Springs Police Department provided a letter stating that, insofar as local law enforcement authorities were concerned, the applicant was a victim of gang violence.  The letter pointed out that the applicant and his fellow soldiers were attempting to " . . . leave the area, but the suspect pulled around directly in front of the [applicant's] van, cutting the van off, firing several more rounds into the front hood and windshield of the vehicle.  [Applicant] was struck . . . .  From our investigation, [applicant] did not provoke the suspect shooting at the van.  [Applicant] was not armed, and from evidence retrieved from the van, there were no shell casings or shots fired from the van [applicant] was driving."

20.  On 10 April 2000, the Total Army Personnel Command (PERSCOM) advised the US Army Physical Disability Agency, Washington, DC, that after thorough administrative and legal reviews of the applicant's LODI, dated 10 August 1998, and his appeal, dated 25 December 1998, the appeal was denied and the finding of "not in the line of duty-due to own misconduct" was reaffirmed.  PERSCOM further advised that the applicant's LODI had numerous legal reviews; however, due to changes in statements and questions regarding the application of Rule 7, Army Regulation 600-8-1, another legal review of the investigation was conducted.  The PERSCOM Command Judge Advocate opined that sufficient evidence supports the conclusion that the applicant did attend the nightclub on the night in question in reasonable anticipation of continued or renewed violence. Also supported by the greater weight of the evidence was the conclusion that his attempt to flee in the face of firearms was insufficient to remove his voluntary misconduct under Rule 7.  His injuries were not inflicted on him as an innocent bystander defending himself, but rather as a participant in the altercation.  The violence was retaliation for his acts or for his companions' provocative acts.  The facts support the view that he went to the club with some expectation of a mutual affray.  The applicant was advised that he could appeal to the ABCMR if he believed the LODI findings were unfair or unjust.

21.  On 27 July 2000, the applicant was honorably separated under the provisions of chapter 4, Army Regulation 635-40, by reason of a disability that existed prior to service, as a result of a Physical Evaluation Board.  He had completed 4 years, 5 months and 6 days of creditable active military service and he had no recorded lost time.

22.  In February 2002, the applicant appealed to the ABCMR.  On 29 March 2002, the ABCMR forwarded the applicant's appeal to PERSCOM.  On 4 April 2002, the Chief, Mortuary Affairs and Casualty Support Division, merely reiterated to the Board his support of the already completed LODI.  Because PERSCOM provided no new interpretation or advisory opinion, the staff of the Board did not refer the document to the applicant.

23.  On 17 June 2002, the applicant indicated in a letter written to the Board that the DVA used some of the same evidence that has been previously used to determine that his injury was not in the line of duty to find that his injury was in the line of duty and that he has a 100 percent disability rating.

24.  Army Regulation 600-8-1 (Army Casualty and Memorial Affairs and Line of Duty Investigations), dated 18 September 1986, was superceded by a 1994 update that does not cover LODI.  The guidance presented in the 18 September 1986 version prescribes the policies and procedures for conducting LODI and is still in use pending publication of a separate regulation governing LODI.  Pertinent portions of the regulation provide:

a.  "Unless refuted by substantial evidence . . . , an injury, disease, or death is presumed to be in LD [line of duty]."  Paragraph 39-5b, Part Five.

	b.  In order to find that injury or disease were not incurred in the line of duty, the LODI investigating officer must show that such injury or disease was ". . . proximately caused by the member's intentional misconduct or willful negligence."  Paragraph 39-5a, Part Five.

	c.  "LD [line of duty] findings or determinations must be supported by substantial evidence and by a greater weight of evidence than supports any different conclusion.  The evidence . . . must establish a degree of certainty so that a reasonable person is convinced of the truth or falseness of fact . . . ."  Paragraph 39-5c, Part Five.  In effect, the LODI investigating officer's findings must be supported by substantial evidence and by a greater weight of evidence than supports any different conclusion.  The evidence must show that it is more likely than not that the investigating officer's findings accurately document how the disease, injury, or death occurred.  This standard of proof is based on a "preponderance of evidence," and is less demanding than the "beyond a reasonable doubt" standard required in criminal proceedings.

25.  The Glossary to AR 600-8-1 provides the following pertinent definitions:

Intentional misconduct - Any wrongful or improper conduct which is intended or deliberate is intentional misconduct.  Intent may be expressed by direct evidence of a member's statements or may be implied by direct or indirect evidence of the member's conduct.

Willful negligence - A conscious and intentional omission of the proper degree of care which a reasonably careful person would exercise under the same or similar circumstances . . . [is] willful negligence.  Willful negligence is a degree of carelessness greater than simple negligence.  Willfulness may be expressed by direct evidence of a member's conduct.  Willfulness will be presumed when the member's conduct demonstrates a gross, reckless, wanton or deliberate disregard for the foreseeable consequences of an act or failure to act. . . .

Proximate cause - A proximate cause is a cause which, in a natural and continuous sequence, unbroken by a new cause, produces [an] injury or disease and without which the injury or disease would not have occurred.  A proximate cause is a primary moving or predominate cause and is the connecting relationship between the intentional misconduct or willful negligence of the member and the injury or disease that results as a natural, direct and immediate consequence which supports a [Not Line of Duty -- Due to Own Misconduct] determination.

26.  Appendix F to AR 600-8-1 provides 12 basic rules that can be applied to various situations arising in LODI.  Rule 7, cited by the LODI investigating officer as primarily governing in the applicant's case, states,

Injury caused by wrongful aggression, or voluntarily taking part in a fight or like encounter, in which one is equally at fault in starting or continuing, is not in the line of duty.  It is due to misconduct.  An injury received by a member in an affray in which he is the aggressor is caused by his own misconduct.  This rule does not apply when a person is the victim of an unprovoked assault and he sustains injuries in an attempt to defend himself.  Provocative actions or language used by the member, in which a reasonable person would expect retaliation, is a willful disregard for personal safety, and injuries directly resulting therefrom are due to misconduct.  When an adversary uses excessive force or means that could not have been reasonably foreseen in the incident, the resulting injury is not considered as having been caused by misconduct.  Except for self-defense, for a member to persist in a fight or other encounter after his adversary produces a dangerous weapon is to act in willful disregard for safety and is willful negligence.

27.  Also of relevance to the applicant's case is the English common law concept of self-defense, specifically the principle of retreat or withdrawal.  In the English common law going back to the Middle Ages, the first obligation of a threatened individual in a personal dispute—even an individual without fault in the quarrel—was to flee from the scene.  With one of two antagonistic individuals gone, a homicide could not possibly occur.  Should it be impossible, however, to get away, the English common law required the individual to retreat as far as possible—retreat ”to the wall” was the legal phrase—before resisting and perhaps killing in an act of lawful self-defense.   In essence, the legal duty to retreat was a command to individuals to forsake physical combat.  To lawyers and judges, this doctrine became known as the duty to retreat and, according to it, you had to prove in open court that you had obeyed the duty to retreat before you could be found not guilty of committing murder in self-defense.  The colonists brought the English common law with them, but in the nineteenth century, American courts replaced it with the American doctrine of no duty to retreat—of the right to stand one’s ground and, if need be, kill in self-defense.

CONCLUSIONS:

1.  The applicant and fellow soldiers became involved with members of an Hispanic street gang during a party at a residence in Colorado Springs.  Heated words were exchanged and, when the gang members threatened to produce handguns, the applicant and his friends left the party.  In the process of leaving, they vandalized a gang member's car.  When the gang members discovered the vandalism, they vowed revenge.

2.  The LODI established that the applicant and several fellow soldiers went to the nightclub in Colorado Springs with the apparent knowledge that the gang members would be there.  In anticipation of trouble, several soldiers armed themselves with baseball bats, knives, and the like.  Statements taken from the applicant's friends by the LODI investigating officer indicate that the applicant believed "someone could get shot."

3.  At the nightclub, provocative words were exchanged and a fight ensued in the parking lot.  When the gang members gained the upper hand in the fighting, the soldiers began to retreat.  The applicant disengaged from the fight and ran to his vehicle and attempted to drive away; however, a gang member pursued him in another vehicle, fired multiple shot at him and struck him in the head.

4.  Although he went to the nightclub looking for a confrontation with the gang members and had a reasonable expectation that the gang members would have handguns, no handguns were produced or fired during the actual affray.  It was only after the gang members began winning and the soldiers retreated that deadly force was used by the gang members.  It was at this point that the applicant was shot and injured.  Since he was no longer voluntarily taking part in the fight and the gang members had escalated the level of force to deadly force, Rule 7 mandates that the applicant's injuries be considered to have occurred "in the line of duty."

5.  In applying Rule 7 to AR 600-8-1, two separate principles must be considered in determining whether or not the applicant's injuries were incurred in the line of duty.

	a.  The first principle involves the use of excessive force whereby:  (1) an adversary uses excessive force or (2) means that could not have been reasonably foreseen in the incident.  In such cases, the resulting injury is not considered as having been caused by misconduct.  In applying this principle, it must be determined whether excessive force or means that could not have been reasonably foreseen were used against the applicant.  Clearly, excessive force was employed when the gang member produced and fired a handgun.

	b.  The second principle involves the issue of retreat or withdrawal.  Rule 7 requires that an "[i]njury caused by . . . voluntarily taking part in a fight . . . which [the member] was equally at fault in starting or continuing, is not in the line of duty" [emphasis added].  In applying this principle, it must be determined whether the applicant's actions were sufficient to signal withdrawal from the affray.  Clearly, his actions of running away, getting in his vehicle and attempting to drive out of the parking lot signified his complete withdrawal from the affray.

6.  In view of the foregoing, and not withstanding the legal opinions of the Fort Carson Staff Judge Advocate and PERSCOM Staff Judge Advocate, 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 changing the results of the line of duty investigation pertaining to the individual concerned to indicate that his injuries incurred on 8 March 1998 were incurred in the line of duty.

BOARD VOTE:  

___BJE__  ________  ________  GRANT AS STATED IN RECOMMENDATION

________  ________  ________  GRANT FORMAL HEARING

________  ____LCB_  __RWA_  DENY APPLICATION

		_Mr. Roger W. Able__
		        CHAIRPERSON

INDEX

CASE ID	AR2002068749	
SUFFIX		
RECON	YYYYMMDD	
DATE BOARDED	20030710	
TYPE OF DISCHARGE	(HD, GD, UOTHC, UD, BCD, DD, UNCHAR)	
DATE OF DISCHARGE	YYYYMMDD	
DISCHARGE AUTHORITY	AR . . . . .  	
DISCHARGE REASON		
BOARD DECISION	GRANT 	
REVIEW AUTHORITY	Mr. Schneider	
ISSUES         1.	108.0300.0000	
2.		
3.		
4.		
5.		
6.