IN THE CASE OF: BOARD DATE: 7 April 2016 DOCKET NUMBER: AR20150005088 THE BOARD CONSIDERED THE FOLLOWING EVIDENCE: 1. Application for correction of military records (with supporting documents provided, if any). 2. Military Personnel Records and advisory opinions (if any). THE APPLICANT'S REQUEST, STATEMENT, AND EVIDENCE: 1. The applicant requests his military record be amended to find that injury was "In Line of Duty" instead of "Not in Line of Duty-Due to Own Misconduct." 2. If his request is granted, he also requests: * the medically unfit determination by the Disability Evaluation System (DES) be reevaluated * he be given the opportunity to go before the formal Physical Evaluation Board (PEB) again in relation to his back condition 3. The applicant states: a. He faced an involuntary separation from the military after 19 years of service. He is extremely remorseful for the situation he placed his family and his command in. He is not looking for sympathy but he is asking for a fair and impartial application of Army regulations, standards and policy to his situation. His injury was found not in the line of duty due to his own misconduct. However, the line of duty investigation was legally insufficient. The Investigating Officer (IO) failed to overcome with substantial evidence the presumption that he (the applicant) was in the line of duty at the time of his injuries. Furthermore, the IO failed to even discuss in his findings how any possible alcohol impairment was the proximate cause of his injuries. Instead, it appears that the IO allowed prior bias and prejudice to lead him to a foregone conclusion instead of engaging in an objective search for the truth. Next, the appropriate appeal procedures were not used in his case and substantial new evidence that he provided was not considered. b. Due to his traumatic brain injury (TBI), he was also placed in the DES and given a 100 percent rating due to TBI. However, because of the initial LOD findings, the Department of Veterans Affairs (VA) and the PEB presumed that his injuries did not occur while entitled to base pay; this presumption occurred before his LOD appeal was processed. Nonetheless, he had previously broken his back during an airborne jump and he had also injured his shoulder. He was initially given a 10 percent rating for his back condition. He had the opportunity to appeal this rating at a formal PEB hearing. However, after a 2-hour drive to the hearing, he mistakenly waived it due to his cognitive limitations caused by his TBI. 4. He makes an argument related to injustice in that the line of duty determination was legally insufficient, the appropriate appeal procedures were not followed, that he submitted substantial new evidence, that he had preexisting TBI, and that he waived his formal PEB hearing. He also makes an argument related to hardship in that he had served honorably for many years and would have been eligible for retirement except for his denied request for continuation on active duty. 5. The applicant provides: * DD Form 261 (Report of Investigation Line of Duty and Misconduct Status) * Memorandum from the IO titled: Clarifications of Findings * Legal Review memorandum * Appointment of IO memorandum * DA Form 2173 (Statement of Medical Examination and Duty Status) * Texas Police/Crash Report * Hospital discharge summary * Email exchange * Copy of Driver License * Aerial view of crash site * Receipt for Report of Investigation * Appeal of Line of Duty Determination * Enlisted Record Brief * Request for formal PEB CONSIDERATION OF EVIDENCE: 1. The applicant enlisted in the Regular Army on 1 March 1996 and he held military occupational specialty 31B (Military Police (MP)). 2. He served through multiple reenlistments in a variety of stateside or overseas assignments, including Afghanistan from May 2009 to May 2010, and he was advanced to master sergeant (MSG)/E-8 in February 2012. 3. At the time of the incident in which he was injured, he was assigned as the Brigade Operations Noncommissioned Officer, Headquarters and Headquarters Company, 89th MP Brigade, Fort Hood, TX. 4. A crash report filed by the Killeen Police Department shows on 4 August 2013, the applicant was involved in a motorcycle accident in Killeen, TX. He was wearing all required personal protective equipment at the time and he had been to motorcycle safety courses. The traffic investigator noted the possibility of excessive speed as the contributing factor. 5. On 11 September 2013, an IO was appointed by the Commander, 89th MP Brigade, to conduct a formal line of duty investigation into injuries sustained by the applicant on 4 August 2013. 6. His records contain a DD Form 261 that shows the IO determined the applicant's injury was "Not in Line of Duty-Due to Own Misconduct." a. On 13 September 2013, the IO secured medical information regarding the applicant's admission to Scott and White Memorial Hospital in Temple, TX. The hospital admissions report indicated "acute alcohol/benzodiazepine intoxication" at the time of his admission. His blood was tested for alcohol and he tested at 146 mg/dL which converted to a blood alcohol concentration of 0.146 percent. This concentration was close to twice the legal limit to drive. A second blood sample was drawn that night and tested for various drugs. There was a presumptive positive return for benzodiazepine. After consulting with the doctor, the IO found the applicant did not have any current prescriptions containing benzodiazepine at the time of his accident. b. A statement from the applicant was not obtained because he was not available. He was receiving treatment at the Texas Neurological Rehabilitation Center in Austin. But after considering all the evidence, the IO determined a statement from the applicant could not justify a decision to operate his motorcycle under such heavy influence of alcohol combined with benzodiazepine. c. On 2 October 2013, by memorandum, the IO clarified his findings. He stated during his line of duty investigation of the applicant's motorcycle accident, he obtained his blood pathology report in regards to alcohol in his blood at the time of his admission to Scott and White Memorial Hospital. After obtaining the report, he consulted the 89th MP Brigade Surgeon on how to convert the raw number of mg/dL into a blood alcohol concentration. An officer of the 89th MP Brigade told him to convert a serum ethanol level to blood alcohol concentration, the decimal place is moved three (3) places to the left. The raw number was 146 mg/dL, which converts to 0.146% blood alcohol concentration. During his line of duty investigation he also obtained his blood pathology report in regards to drugs in his blood at the time of his admission to the hospital. The report showed that there were traces of benzodiazepines in his blood. In order to determine if this was a result of a prescription, he consulted the applicant's primary care physician at Thomas Moore Clinic on Fort Hood. Dr. Ro---- B. Mc----, M.D., informed him that the applicant had a prescription in May of 2008 for Valium, which contains benzodiazepines. However there was no record of the applicant having a current prescription that would explain the benzodiazepine content in his blood at the time of the accident. e. On 21 October 2013, the Command Judge Advocate reviewed the findings for legal sufficiency. He stated that he reviewed the formal Line of Duty Investigation into injuries sustained by the applicant and found the findings were legally sufficient and the proceedings complied with legal requirements. He added that there were no substantial errors present which had a materially adverse effect on the outcome of the investigation and there was sufficient evidence supporting the findings of the investigation. The law presumes that any injury is incurred in the line of duty, and this presumption prevails until overcome by substantial evidence and a greater weight of the evidence that supports any different conclusion. In this case, the IO's determination that the applicant was operating a motorcycle while under the influence of intoxicating substances was supported by the medical record, witness statements, and conversations with the applicant's care providers. The blood pathology report revealed that his blood alcohol level was around 0.146 percent at the time he was admitted to the hospital. Additionally the presence of benzodiazepines in his blood indicated that he had taken Valium prior to his collision. An injury incurred as the "proximate result" of prior and specific voluntary intoxication is incurred as a result of misconduct. Injuries incurred as the result of misconduct are not incurred-in the line of duty. Therefore, the IO's reliance on the available medical evidence in finding that the applicant's injury was not incurred in the line of duty is legally sufficient. f. The appointing/reviewing authority approved the finding on 30 October 2013, and the Chief, Casualty Assistance Center approved this finding on behalf of the Secretary of the Army. 7. Meanwhile, the applicant had been issued a physical profile that warranted his entry into the disability system. On 25 November 2013, he underwent a medical evaluation board (MEB) examination at Fort Hood for the referred condition of cognitive impairment, status post TBI with non-hemorrhagic, diffuse axonal injury, onset 4 August 2013. His Narrative Summary (NARSUM) states this condition did not meet retention standards: a. Per available records, he was involved in a motorcycle accident on 4 August 2013 resulting in a moderate TBI with diffuse axonal injury (DAI) and small subarachnoid hemorrhage (SAH). He spent two months in acute rehab at the Texas Neurorehab Center. Alcohol was reportedly involved. The VA Compensation and Pension (C&P) examination conferred a diagnosis of cognitive impairment due to TBI. According to the C&P exam, there was objective evidence in neuropsychological testing completed on 11 September 2011 and "results are consistent with what we would expect status post traumatic brain injury." The Montreal Cognitive Assessment (MOCA) was administered during the VA C&P exam and "showed a total score of 24/30" (the normal range is 26/30 or more). Since the neuropsychological evaluation referred to above was completed only a month post-injury (still in the acute recovery phase), a repeat neuropsychological evaluation was recommended by this provider to provide an updated picture of his current cognitive functioning. b. The evaluation was completed on 18 February 2014 with Dr. John Di--er. The report was not yet available, but per email correspondence with Dr. Di--er, the test results indicated "Obvious under-reporting of all physical, psychiatric and cognitive [symptoms], with numerous very low scores; thus, taking considerable effort to present himself as having no functional difficulties…. He exhibited "intact sustained attention, intact language functioning, collective memory functioning is at the border of the Borderline & Low Average range with particular difficulty with rote verbal learning. Borderline-range visual motor integration with quality of drawing deflating the memory-recall performance. In general, it does appear as if the member has some cognitive difficulty." Records also reflect a history of past concussive events from improvised explosive device blasts and football. c. There was no evidence in the records to suggest that he did not have mental competency. The VA examiner indicated he was capable of managing his financial affairs. The doctor (who signed the MEB narrative summary) had considered all behavioral health diagnoses documented in the electronic medical record and found that the VA C&P had adequately identified all current conditions. 8. On 9 January 2014, the applicant submitted an appeal of the line of duty determination. He chronicled his service and went over the motorcycle accident. He argued: * he was suffering from TBI and that he had no memory of the accident * there was no mention in the police report that alcohol or reckless driving was a factor * he was never provided an opportunity to give his side of the story and the IO made no attempt to interview him * the care provider could not establish if he (the applicant) had a prescription from an off-post provider * it was a common practice for patients with TBI to use a sedative agent * he had never taken any form of drugs, illegal, prescribed or otherwise and he had never had any alcohol related problem before * the existence of benzodiazepines could have resulted from something the hospital gave him * the IO did not look into the fact that he had TBI from a grenade attack that occurred during his deployment * there was no analysis by the IO that intoxication was the proximate cause of the injury * the IO failed to overcome with substantial evidence the presumption that he was in line of duty at the time of his injuries 9. On 31 March 2014, an MEB convened and, after consideration of clinical records, laboratory findings, and physical examinations, found the applicant was diagnosed with the conditions below. The MEB recommended referral to a PEB. Diagnosis Met Retention Standards Did Not Meet Retention Standards 1. Cognitive impairment, secondary to TBI with a diffuse axonal injury, non-hemorrhagic X 2. Status post lumbar compression fracture L1 with spondylolisthesis and left transverse process fracture X 3. Left knee anterior cruciate ligament (ACL)/posterior cruciate ligament (PCL) tear with degenerative joint disease X 4. Hypothyroidism X 6. Shoulder supraspinatus tendonitis X 10. The applicant was counseled and agreed with the MEB's findings and recommendations. He acknowledged that he: * reviewed the contents of the MEB packet and read the attached DA Form 3947 (Medical Board Proceedings), Narrative Summary (NARSUM), and the Physical Profile (DA Form 3349) * in regard to issues relating to fitness for duty and disability compensation, he understood that the PEB would consider and review only those conditions listed on the DA Form 3947 * the DA Form 3947 included all his current medical conditions and whether or not they meet medical retention standards * the conditions which did not meet medical retention standards were properly listed on the following three documents: DA Form 3947, the Narrative Summary, and the Physical Profile (DA Form 3349) * all documentation of military medical care in his possession had been provided to the PEB Liaison Officer (PEBLO) for inclusion in this MEB * he agreed that this MEB accurately covered all his current medical conditions * if he did not agree with any of these statements and/or did not agree with the contents of the MEB as reflected in his election at item 24, above, he had provided all his disagreements and concerns in an appeal 11. The VA completed a disability assessment of his unfitting and service-connected disabilities under the Integrated Disability Evaluation System (IDES). The VA proposed the following ratings: a. For his unfitting disabilities, the VA proposed a 10 percent combined rating for status post lumbar compression fracture L1 with spondylolisthesis and left transverse process fracture, and 100 percent (not service-connected) for the cognitive impairment secondary to TBI with DAI, non-hemorrhagic. b. For his service-connected disabilities, the VA proposed a 60 percent combined rating as follows: * Left knee ACL/PCL tear with degenerative changes and degenerative joint disease (DJD); VA- Same plus chondromalacia patella (limitation of extension) 30 percent * Left knee ACL/PCL tear with degenerative changes and DJD; VA- Same plus chondromalacia patella (instability) 20 percent * Shoulder supraspinatus tendonitis, 10 percent * Hypothyroidism, 10 percent 12. On 23 June 2014, an informal PEB convened and found the applicant's condition prevented him from performing the duties required of his grade and military specialty and determined he was physically unfit due to two diagnoses: * status post lumbar compression fracture L1 with spondylolisthesis and left transverse process fracture (incurred in the line of duty and rated at 10 percent) * cognitive impairment secondary to TBI with DAI, non-hemorrhagic (not incurred in the line of duty, non-compensable, and not assigned a rating) 13. The informal PEB determined he was fit for other conditions listed by the MEB (left knee ACL/PCL tear with degenerative changes and DJD, hypothyroidism, and shoulder supraspinatus tendonitis). 14. The informal PEB found the applicant physically unfit and recommended a combined rating of 10 percent and that his disposition be separation with entitlement to severance pay. 15. Meanwhile, on 8 July 2014, the line of duty appellate authority, the Casualty and Mortuary Affairs Operations Center, U.S. Army Human Resources Command (HRC), completed its review of the line of duty investigation for injuries suffered on 4 August 2013. This office supported the original finding of "Not in Line of Duty-Due to Own Misconduct." This action was deemed final and was to be made a permanent part of the applicant's records. 16. On 8 July 2014, the applicant drafted a request for a formal PEB hearing. However, on 16 September 2014, by memorandum to the President of the PEB, the applicant indicated that he concurred that he was unfit for status post lumbar compression fracture L1 with spondylolisthesis and left transverse process fracture and cognitive impairment secondary to TBI with DAI, non-hemorrhagic, and thereby waived his right to a formal hearing. On his DA Form 199 (Informal PEB Proceedings), he checked the following: a. I concur and waive a formal hearing of my case. b. I request the VA reconsider my disability rating. My written request for VA reconsideration is attached. I understand VA will only reconsider ratings if new medical evidence is received or I am able to provide sufficient justification to warrant reconsideration. I understand this is a one-time request for reconsideration of the rating(s) from the DRAS for the conditions the PEB determined to be unfitting. I also understand that counsel is available to represent me with my request for VA Reconsideration and that if I request a formal hearing, my request for reconsideration of my VA rating will be processed after the formal hearing is conducted. 17. He was honorably discharged from active duty on 26 April 2015. His DD Form 214 (Certificate of Release or Discharge from Active Duty) shows he was discharged by reason of disability with entitlement to severance pay in accordance with Army Regulation (AR) 635-40 (Physical Evaluation for Retention, Retirement, or Separation). He completed 19 years, 1 month, and 26 days of active service. 18. An advisory opinion was received from the U.S. Army Medical Command (MEDCOM) on 13 July 2015 during the processing of this case. An official (Dr. Ro---) stated this advisory opinion focused solely on the Line of Duty determination made by the IO and the apparent weight that he placed on the Soldier's blood alcohol concentration as reported by Scott and White Hospital at the time of his admission. The advisory official noted two "glaring" problems in the IO's conclusions. a. The first is the conversion formula the IO was given by the Brigade Surgeon, which resulted in a calculation of 0.146% blood alcohol concentration. When compared to the legal limit in Texas of 0.080%, the IO immediately opined that the applicant's blood alcohol was twice the legal limit and that he should not have been operating a motorcycle. The advisory official consulted with the MEDCOM Forensic Pathologist for alcohol and drug abuse. He stated that the Brigade Surgeon was incorrect in his conversion guidance. The raw 146mg/dl should have been divided by 1.49 before moving the decimal point 3 places, resulting in a blood alcohol level of 0.097%. This is still over the legal limit, but not the dramatic difference that the IO thought that it was. b. The second problem discussed with the MEDCOM Forensic Pathologist centered on the absence of a chain of custody between the emergency room staff that drew the blood samples and the lab where the tests were conducted. The applicant points out the discrepancies of age and name that appear on various hospital reports. Lacking a reliable chain of custody challenges the use of the lab results as the central determinant for a line of duty determination of "No." 19. The applicant was provided with a copy of this advisory opinion to allow him an opportunity to comment and/or submit a rebuttal. He did not respond. 20. A second advisory opinion was received from MEDCOM on 24 November 2015 because the first opinion did not address whether the applicant's injury was or was not in line of duty. The advisory official added to the statements made in the 13 July 2015 advisory opinion, stating the questionable aspects of the chain of custody and the recomputed blood alcohol value provide reasonable doubt about the assertion that the applicant acted irresponsibly on the night of the accident and support his assertion that the road conditions contributed significantly to the accident. It is the advisory official's opinion that the facts support a line of duty determination of "Yes." 21. The applicant was provided with a copy of this advisory opinion to allow him an opportunity to comment and/or submit a rebuttal. He did not respond. 22. A third advisory opinion was received from the USAPDA on 1 December 2015, in light of the revised opinion submitted by MEDCOM on 24 November 2015. The USAPDA advisory official recommended no change to the applicant's LOD determination. The advisory official summarized the facts of the case and further stated: a. The Board requested an opinion from MEDCOM regarding the Army's findings of not in the line of duty. This opinion determined that there might have been a problem in determining the applicant's actual blood alcohol concentration and that maybe the chain of custody of the blood sample was not intact. Notwithstanding these opinions, it appears that there still remains substantial overall evidence that the HRC approved findings of not in the line of duty are appropriate and supported by substantial evidence. Even if there had been a computing problem with the blood alcohol content, the MEDCOM opinion concluded that even with a different approach to computing the alcohol content the applicant would still be over the stated presumed intoxication level. b. The PEB, and the military, is precluded by Federal statute from compensating any injuries caused by a not in line of duty accident. This agency finds no significant errors, or mitigating reasons/evidence, that would require that the line of duty findings be changed. Recommend no changes to the applicant's military records. 23. The applicant was provided a copy of this advisory opinion to allow him an opportunity to comment and/or submit a rebuttal. He did not respond. 24. A fourth advisory opinion was received from HRC on 5 February 2016. An advisory official stated that HRC rendered an initial finding of "Not in the Line of Duty-Due to Own Misconduct" on 8 July 2014, based on evidence submitted at that time. After a thorough and comprehensive review, there appear to be numerous policy and procedural errors, such as chain of custody with toxicology, lack of witness statements, and presumptive conclusions based on insufficient evidence. These issues are significant enough that they bring reasonable doubt and whether the investigation is procedurally sufficient. The IO violated policy and procedures of AR 600-8-4 (Line of Duty Policy, Procedures, and Investigations) by using hearsay as evidence. This is not an appropriate means for recommending a line of duty finding. The IO's failure to notify the applicant of his intended adverse finding was another direct violation of AR 600-8-4. The evidence contained in this investigation is not substantial enough to overcome the presumption of line of duty. According to AR 600-8-4, paragraph 2-6 (c), line of duty determinations must be supported by substantial evidence or by a greater weight of evidence than supports any different conclusion. HRC has determined the applicant's incident to be in the line of duty. a. AR 600-8-4, paragraph 2-6, states injury, disease, or death proximately caused by the Soldier's intentional misconduct or willful negligence is "Not in Line of Duty - Due to Own Misconduct." Simple or ordinary negligence or carelessness, standing alone, does not constitute misconduct. An injury, disease, or death is presumed to be in the line of duty unless refuted by substantial evidence contained in the investigation. Line of duty 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. b. AR 600-8-4, paragraph 3-3, states all findings of fact should be supported by exhibits. The majority of the case is not supported by fact or evidence that is not questionable (i.e., two different blood alcohol readings from Scott and White Hospital, whether or not the Soldier was given drugs in the Benzodiazepine family while being transported from the accident scene to the hospital). c. AR 600-8-4, paragraph 3-8(e), states the IO will collect the evidence as follows. A statement by the IO should not be used as a substitute for witness statements when they can be obtained. HRC determined that the IO used Officer M--k's verbal statement as fact in the investigation when it is merely hearsay. If an adverse determination is contemplated against the Soldier, based upon information obtained in the investigation, the IO will notify the Soldier, in writing, of the proposed adverse determination and provide a copy of the investigation and the supporting evidence. The Soldier will be warned per paragraph 3-3b and given a reasonable opportunity to reply in writing to offer a rebuttal. Certified mail should be used and the mailing receipt and return receipt (if any) attached to the Line of Duty investigation. If no response is received, the IO may conclude the investigation and finalize the determination. If a response is received, the IO will review and evaluate the Soldier's response prior to making the final determination. HRC determined this was not done, which should have made the entire investigation null and void because it fails to give the Soldier his due process of a right to rebut. d. AR 600-8-4, paragraph 4-10, states an injury incurred as the "proximate result" of prior and specific voluntary intoxication is incurred as the result of misconduct. For intoxication alone to be the basis for a determination of misconduct with respect to a related injury, there must be a clear showing that the Soldier's physical or mental faculties were impaired due to intoxication at the time of the injury, the extent of the in1pairment, and that the impairment was a proximate cause of the injury. HRC determined that in this case it appears the IO based his decision on alcohol and the presumptive positive of Benzodiazepine. Both of these test results brings reasonable doubt to the case and all throughout the case has inconsistences, which should have made the test results irrelevant since the preponderance of evidence, as defined in Section II, Terms, were not met. e. The MEDCOM advisory official opined there were two glaring problems with the line of duty finding. The first problem was the IO's determination that the applicant's blood alcohol content was .146. The MEDCOM advisory official found that a proper calculation, using the words of the IO, would calculate to a blood alcohol content of .097. Secondly, the MEDCOM advisory official questioned the chain of custody with the blood test results being compromised. HRC found that Scott & White Hospital provided two different blood alcohol content readings for the applicant bringing into question the validity of their process. The questionable aspects of the chain of custody and the recomputed blood alcohol content provide reasonable doubt about the assertion that the applicant acted with negligence or misconduct on the night of the accident. Clearly, with so many inconsistencies, this cannot be viewed as direct or conclusive evidence in a line of duty investigation. f. The applicant also tested presumptive positive for Benzodiazepines. The term "presumptive positive" indicates a presence of a drug type but does not identify individual drugs within a class. Results are ambiguous in terms of drug concentration and cross-reactivity of other compounds. Most hospital laboratories use a rapid immunoassay to screen for drugs. The major problem with all rapid immunoassays is they are less than perfect in specifically identifying each drug class. HRC contacted the Killeen, TX Fire Department, which is in charge of all ambulances and emergency medical personnel in the area of this particular accident in regards to the IO assuming ambulance services did not carry medication within the Benzodiazepine family and asked if their ambulances carry any drugs in the Benzodiazepine family and if any drug in that family would be given to a severely injured motor vehicle patient. The answer was yes, they do carry drugs in the Benzodiazepine family and there is a great possibility a drug of that family could be given to a patient involved in a serious accident. HRC concluded that testing may have been compromised if the applicant was given this medication en route to the hospital. If the IO had checked for this during the investigation, there would be no question surrounding the presumptive positive test. Since the IO chose not to take that path, this test cannot be substantiated evidence to use in a line of duty finding. g. The line of duty investigation conducted by the IO leaves numerous questions unanswered. The IO's failure in violating policy and procedure of AR 600-8-4 by using hearsay as evidence is not an appropriate means for recommending a line of duty finding. The IO's failure to notify the applicant of his intended adverse finding is in direct violation of AR 600-8-4. The evidence used in the investigation was compromised in a variety of ways. According to AR 600-8-4, paragraph 2-6(c), line of duty determinations must be supported by substantial evidence or by a greater weight of evidence than supports any different conclusion. HRC recommends overturning the decision to in the line of duty. 25. The applicant was provided with a copy of this advisory opinion but he did not respond. 26. AR 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 or her office, grade, rank, or rating. Only the unfitting conditions or defects and those which contribute to unfitness will be considered in arriving at the rated degree of incapacity warranting retirement or separation for disability. Paragraph 3-4 states under the laws governing the Army disability Soldiers who sustain or aggravate physically unfitting disabilities must meet the following line of duty criteria to be eligible to receive retirement and severance pay benefits: * The disability must have been incurred or aggravated while the Soldier was entitled to basic pay or as the proximate cause of performing active duty or inactive duty training * The disability must not have resulted from the Soldier’s intentional misconduct or willful neglect and must not have been incurred during a period of unauthorized absence. 27. Department of Defense (DOD) Directive-type Memorandum (DTM) 11-015, in effect at the time, explains the Integrated Disability Evaluation System (IDES). It states: a. The IDES is the joint DOD-VA process by which DOD determines whether wounded, ill, or injured Service members are fit for continued military service and by which DOD and the VA determine appropriate benefits for Service members who are separated or retired for a Service-connected disability. The IDES features a single set of disability medical examinations appropriate for fitness determination by the Military Departments and a single set of disability ratings provided by the VA for appropriate use by both departments. Although the IDES includes medical examinations, IDES processes are administrative in nature and are independent of clinical care and treatment. b. Unless otherwise stated in this DTM, DOD will follow the existing policies and procedures promulgated in DOD Directive 1332.18 and the Under Secretary of Defense for Personnel and Readiness Memoranda. All newly-initiated, duty-related physical disability cases from the Departments of the Army, Air Force, and Navy at operating IDES sites will be processed in accordance with this DTM and follow the process described in this DTM unless the Military Department concerned approves the exclusion of the Service member due to special circumstances. Service members whose cases were initiated under the legacy DES process will not enter the IDES. c. IDES medical examinations will include a general medical examination and any other applicable medical examinations performed to VA compensation and pension (C&P) standards. Collectively, the examinations will be sufficient to assess the member’s referred and claimed condition(s) and assist the VA in ratings determinations and assist military departments with unfit determinations. d. Upon separation from military service for medical disability and consistent with Board for Corrections of Military Records (BCMR) procedures of the Military Department concerned, the former Service member (or his or her designated representative) may request correction of his or her military records through his or her respective Military Department BCMR if new information regarding his or her service or condition during service is made available that may result in a different disposition. For example, a veteran appeals the VA’s disability rating of an unfitting condition based on a portion of his or her service treatment record that was missing during the IDES process. If the VA changes the disability rating for the unfitting condition based on a portion of his or her service treatment record that was missing during the IDES process and the change to the disability rating may result in a different disposition, the Service member may request correction of his or her military records through his or her respective Military Department BCMR. e. If, after separation from service and attaining veteran status, the former Service member (or his or her designated representative) desires to appeal a determination from the rating decision, the veteran (or his or her designated representative) has 1 year from the date of mailing of notice of the VA decision to submit a written notice of disagreement with the decision to the VA regional office of jurisdiction. 28. Title 10, U.S. Code, section 1201, provides for the physical disability retirement of a member who has at least 20 years of service or a disability rating of at least 30 percent. Title 10, U.S. Code, section 1203, provides for the physical disability separation of a member who has less than 20 years of service and a disability rating of less than 30 percent. 27. Title 10, U.S. Code, section 1176(a), states a regular enlisted member who is selected to be involuntarily separated, or whose term of enlistment expires and who is denied reenlistment, and who on the date on which the member is to be discharged is within two years of qualifying for retirement under section 3914 or 8914 of this title, or of qualifying for transfer to the Fleet Reserve or Fleet Marine Corps Reserve under section 6330 of this title, shall be retained on active duty until the member is qualified for retirement or transfer to the Fleet Reserve or Fleet Marine Corps Reserve, as the case may be, unless the member is sooner retired or discharged under any other provision of law. 28. AR 600-8-4 (Line of Duty, Policy, Procedures, and Investigations) prescribes policies and procedures for investigating the circumstances of disease, injury, or death of a soldier. It provides standards and considerations used in determining line of duty status. One of the reasons for conducting a line of duty investigation is for disability retirement and severance pay. a. For Soldiers who sustain permanent disabilities while on active duty to be eligible to receive certain retirement and severance pay benefits, they must meet requirements of the applicable statutes. PEB determinations are made independently and are not controlled by line of duty determinations. However, entitlement to disability compensation may depend on those facts that have been officially recorded and are on file within the Department of the Army. This includes reports and investigations submitted in accordance with this regulation. b. Line of duty investigations are conducted essentially to arrive at a determination of whether misconduct or negligence was involved in the disease, injury, or death and, if so, to what degree. Depending on the circumstances of the case, a line of duty investigation may or may not be required to make this determination. Investigations can be conducted informally by the chain of command where no misconduct or negligence is indicated, or formally where an investigating officer is appointed to conduct an investigation into suspected misconduct or negligence. The unit commander will conduct an informal line of duty investigation when the circumstances warrant or require one. This starts with the initiation of DA Form 2173 (Statement of Medical History and Duty Status). c. A formal line of duty investigation must be conducted in the following circumstances: (1) injury, disease, death, or medical condition that occurs under strange or doubtful circumstances or is apparently due to misconduct or willful negligence and (2) injury or death involving the abuse of alcohol or other drugs. A formal line of duty investigation is a detailed investigation that normally begins with DA Form 2173 completed by the Military Treatment Facility and annotated by the unit commander as requiring a formal line of duty investigation. The appointing authority, on receipt of the DA Form 2173, appoints an investigating officer who completes DD Form 261 and appends appropriate statements and other documentation to support the determination, which is submitted to the approving authority for approval. The rules in appendix B will be considered fully in deciding line of duty determinations. These rules elaborate upon, but do not modify, the basis for line of duty determinations. d. The Soldier may appeal, in writing, within 30 days after receipt of the notice of the line of duty determination. For appeals not submitted within the 30-day time limit, the reason for delay must be fully explained and a request for exception to the time limit justified. If a Soldier is assigned within the geographic area of responsibility of the original final approving authority the appeal will be sent through channels to the final approving authority. The final approving authority may change his or her previous determination of "not in line of duty" to "in line of duty" if there is substantial new evidence to warrant it. If the final approving authority determines that there is no basis for a change in the determination, it will be so stated by endorsement and the appeal will be sent to HRC for final review and determination. e. The agencies that process cases for physical disability separation are not bound by prior line of duty determinations. When the U.S. Army Physical Disability Agency believes that a prior line of duty determination may be incorrect for any reason, a request for review should be sent to HRC clearly detailing the reason for such action. f. Appendix B (Rules Governing Line of Duty and Misconduct Determinations) states that in every formal investigation, the purpose is to find out whether there is evidence of intentional misconduct or willful negligence that is substantial and of a greater weight than the presumption of "in line of duty." To arrive at such decisions, several basic rules apply to various situations. g. Appendix B, Rule 3, states injury, disease, or death that results in incapacitation because of the abuse of alcohol and other drugs is not in line of duty. It is due to misconduct. This rule applies to the effect of the drug on the Soldier’s conduct, as well as to the physical effect on the Soldier’s body. Any wrongfully drug-induced actions that cause injury, disease, or death are misconduct. That the Soldier may have had a pre-existing physical condition that caused increased susceptibility to the effects of the drug does not excuse the misconduct. h. Appendix B, Rule 4, states that injury, disease, or death that results in incapacitation because of the abuse of intoxicating liquor is not in line of duty. It is due to misconduct. The principles in Rule 3 apply here. While merely drinking alcoholic beverages is not misconduct, one who voluntarily becomes intoxicated is held to the same standards of conduct as one who is sober. Intoxication does not excuse misconduct. While normally there are behavior patterns common to persons who are intoxicated, some, if not all, of these characteristics may be caused by other conditions. For example, an apparent drunken stupor might have been caused by a blow to the head. Consequently, when the fact of intoxication is not clearly fixed, care should be taken to determine the actual cause of any irrational behavior. DISCUSSION AND CONCLUSIONS: 1. There are two main issues raised by the applicant: * a finding that his injuries were in line of duty * a finding that his cognitive impairment secondary to TBI be compensable 2. If his request is granted, he also requests: * the medically unfit determination by the DES be reevaluated * he be given the opportunity to go before the formal PEB for his back condition 3. The evidence of record shows the applicant – a senior noncommissioned officer, an MP, and an Operations NCO in a leadership position – violated a basic tenet of leadership by operating a motorcycle while under the influence of alcohol. a. By regulation, a formal line of duty investigation must be conducted when there is an injury or death involving the abuse of alcohol or other drugs. Although the applicant had taken safety precautions in that he was wearing protective equipment and had previously been to a motorcycle safety class, his blood was tested for alcohol and he tested at 146 mg/dL which (initially) converted to a blood alcohol concentration of 0.146 percent. A second sample was drawn that night and tested for various drugs. There was a presumptive positive return for Benzodiazepines. After consulting with the doctor, the IO found the applicant did not have any current prescriptions containing benzodiazepine at the time of his accident. b. Due the severity of the accident and out of concern for the applicant's safety to immediately transport him to a hospital, it appears the police officer on the scene may not have been in a position to conduct a breathalyzer on the applicant. This, however, appears to have been confirmed at the hospital. The IO clearly consulted with the attending doctor to obtain the applicant's blood pathology report. c. Despite the incorrect calculation of the applicant's BAC, the fact remains that, even after properly calculating his BAC, it amounted to 0.097 percent which was still above the legal limit of 0.08 in the State of Texas. Because alcohol was involved, by rule, an injury that results in incapacitation because of the abuse of intoxicating liquor is not in line of duty. It is due to misconduct. This is exactly what the IO determined. d. However, after a thorough and comprehensive review, there appear to be numerous policy and procedural errors, such as chain of custody with toxicology, lack of witness statements, and presumptive conclusions based on insufficient evidence. These issues are significant enough that they bring reasonable doubt as to whether the investigation was procedurally sufficient. The IO appears to have violated policy and procedures of AR 600-8-4 by using hearsay as evidence. This is not an appropriate means for recommending a line of duty finding. The IO's failure to notify the applicant of his intended adverse finding was another direct violation of AR 600-8-4. The evidence contained in this investigation is not substantial enough to overcome the presumption of line of duty. According to AR 600-8-4, paragraph 2-6(c), line of duty determinations must be supported by substantial evidence or by a greater weight of evidence that supports any different conclusion. An HRC advisory official concludes that, based on the problematic evidence in this case, injuries resulting from the applicant's accident should be deemed to have been incurred in the line of duty. 3. A condition that is not in line of duty and is due to a member's misconduct is not compensable. The NARSUM, MEB, and PEB clearly show his cognitive impairment secondary to TBI with DAI, non-hemorrhagic, failed retention standards and was found unfitting. a. However, this condition began in August 2013 while at Fort Hood as result of his motorcycle accident. Under the laws governing the Army disability system, Soldiers who sustain or aggravate physically unfitting disabilities must meet the criteria to be eligible to receive retirement and severance pay benefits. One of the criteria is that the disability must not have resulted from the Soldier’s intentional misconduct or willful neglect. Because the condition was incurred due to his misconduct, it is not compensable. b. The applicant's physical disability evaluation was conducted in accordance with law and regulations and the applicant concurred with the recommendation of the PEB. He was afforded the right to request a formal hearing of his case; however, he waived this right. c. Notwithstanding these facts, because of the issues with the line of duty investigation, the evidence and advisory opinions now provide a basis for correcting the record to show the applicant's cognitive impairment secondary to TBI with DAI, non-hemorrhagic, that failed retention standards and was found unfitting, was also rated. 4. Retirement: The applicant's disabling condition was rated at 10 percent. The law provides for the physical disability separation of a member who has less than 20 years of service and a disability rating of less than 30 percent. The applicant was rated at 10 percent and he had less than 20 years of active service. His discharge with entitlement to severance pay was the appropriate disposition. However, if his cognitive impairment secondary to TBI with DAI, non-hemorrhagic, is rated, the evidence indicates his combined rating would be 40 percent or more, which would make him eligible for retirement. BOARD VOTE: ___x____ ____x___ ___x____ GRANT FULL RELIEF ________ ________ ________ GRANT PARTIAL RELIEF ________ ________ ________ GRANT FORMAL HEARING ________ ________ ________ DENY APPLICATION BOARD DETERMINATION/RECOMMENDATION: The Board determined that the evidence presented was sufficient to warrant a recommendation for relief. As a result, the Board recommends that all Department of the Army records of the individual concerned be corrected, as appropriate, by: * showing the injuries the applicant incurred on 30 October 2013 were "In Line of Duty" * showing his cognitive impairment secondary to TBI with DAI, non-hemorrhagic, that failed retention standards and was found unfitting, was ratable for disability purposes * amending his DES records and any related records to reflect a disposition that is in accord with the rating he receives as a result of these corrections _____________x____________ CHAIRPERSON I certify that herein is recorded the true and complete record of the proceedings of the Army Board for Correction of Military Records in this case. ABCMR Record of Proceedings (cont) AR20150005088 3 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1 ABCMR Record of Proceedings (cont) AR20150005088 20 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1