MEMORANDUM OF CONSIDERATION

IN THE CASE OF: 

	BOARD DATE:            12 September 2000
	DOCKET NUMBER:   AR1999032737

I certify that hereinafter is recorded the record of consideration of the Army Board for Correction of Military Records in the case of the above-named individual.
	Mr. Carl W. S. Chun		Director	
	Ms. Antoinette Farley		Analyst	

The following members, a quorum, were present:
	Mr. Calvin M. Fowler		Chairperson	
	Mr. Fred Eichorn		Member	
	Ms. Carol Jo Suiter		Member	

The Board, established pursuant to authority contained in 10 U.S.C. 1552, convened at the call of the Chairperson on the above date.  In accordance with Army Regulation 15-185, the application and the available military records pertinent to the corrective action requested were reviewed to determine whether to authorize a formal hearing, recommend that the records be corrected without a formal hearing, or to deny the application without a formal hearing if it is determined that insufficient relevant evidence has been presented to demonstrate the existence of probable material error or injustice.
The applicant requests correction of military records as stated in the application to the Board and as restated herein.
The Board considered the following evidence:
	Exhibit A - Application for correction of military 
records
	Exhibit B - Military Personnel Records (including
advisory opinion, if any)
He also found that the applicant violated military orders given to him by his command not to drive his motorcycle without proper licensing, insurance and safety certification.  Further, the LOD investigator determined that all the legal requirements were met and were considered legally sufficient in accordance with paragraph 39-2c(2) (the Casualty Assistance Program) Army Regulation 600-8-1. 

APPLICANT REQUESTS:  That the “NOT IN THE LINE OF DUTY-DUE TO OWN MISCONDUCT” determination, dated 28 (sic 30) October 1997, be corrected to read “In Line of Duty”.
APPLICANT STATES:  In essence, that there are several inconsistencies in the reports of investigation in his case.  He states that his faith in the local Casualty Affairs Office proved to be the beginning of his diminishing confidence in the system (line of duty investigative system); that they openly admitted they did not know how to handle his case, so they referred the case to the Department of the Army (DA) Line of Duty office; that blunders happened at the lowest level; that a local trial defense office informed him that he had a good case for the appeal, but that the case was then sent directly to the DA. No 25th Infantry Division leader provided feedback to his chain of command or him about changes to the report.  In addition, the division’s Assistant Chief of Staff for Personnel office (known as the G1) was told they could correct this blunder since the initial “procedural processing” was unsatisfactory at best.  He further states that he believes in the Army system and recognizes that human mistakes may be made. However, he requests that his entire Line of Duty Investigation (LODI) and appeal be reviewed objectively. 
EVIDENCE OF RECORD:  The applicant’s military records show:
He enlisted in the Regular Army (RA) for 3 years and 17 weeks on 20 April 1994. He completed his required military training and was awarded military occupational specialty (MOS) 11H (Heavy Anti-Armor Weapons Infantryman). 

On 21 February 1997, while stationed in Hawaii, the applicant reenlisted for a period of 3 years, as a specialist, pay grade E-4, in MOS 11H. 

On 23 June 1997, the applicant, while driving his motorcycle in an off-duty status and proceeding west on Honolulu Freeway (HI-1), was involved in a collision with a car (Mazda) and a tractor-trailer.  The applicant was driving his motorcycle in the third lane of traffic.  He states that due to the traffic congestion in front of him, he moved to the next left lane.  After switching lanes, he failed to see a car stopped in that lane.  He crashed into the stopped car and was propelled over it.  He landed in front of a tractor-trailer truck, which was traveling in one of the oncoming lanes on the opposite side of the highway.  

A DA Form 2173 (Statement of Medical Examination and Duty Status) shows that on 23 June 1997, the applicant was treated at Tripler Army Medical Center (TAMC), Hawaii, for multiple contusions and fractures of the lower extremities.  On 16 July 1997, the Deputy Chief of the Patient Administration Department at TAMC determined that the applicant’s injuries were not due to alcohol abuse and that no claim would likely be pursued against the Government for future medical care.  He also concluded that the applicant’s injuries would be temporary, not resulting in a physical disability.  

On 22 July 1997, a LODI was directed by officials at Schofield Barracks, Hawaii, and was assigned to an investigator on 6 August 1997.  

On 1 October 1997, the investigator, without benefit of the Honolulu Police Report, found that the accident was in the line of duty and not rebutted by any other facts in the investigation.  A finding that the proximate cause of the accident was the stalled automobile in a lane of the HI-1 Freeway, with no visible brake or hazard lights showing, was supported by the evidence.  This position was supported by an administrative law attorney in the 25th Infantry Division’s Judge Advocate’s office.

On 14 October 1997, the LOD investigator received the Honolulu Police Report and did not change his opinion.

On 17 October 1997, the LOD investigator forwarded a copy of the Honolulu Police Report to the administrative law attorney.  The attorney determined that, after further review, to include the Honolulu Police Report, the evidence now showed the applicant was negligent and his statement was contradicted by five eyewitness statements taken by the Honolulu Police Department which revealed: 1.)  the first eyewitness stated that the applicant failed to see the traffic slow down due to a construction merger, that he passed cars and pulled into another lane crashing into a stopped car while speeding; 2.)  the second eyewitness (tractor-trailer driver) stated that the traffic slowed to about 20 miles per hour (MPH) due to construction, and he saw the cyclist approaching very fast in the next lane at which time he crashed into the Mazda and rolled into the path of his truck; 3.)  the third eyewitness stated he did not see the collision, but prior to the accident he did see the applicant speeding and cutting in and out of traffic; 4.)  the fourth witness stated that she could see the applicant driving slightly faster than the traffic ahead of her, and did try to slow down before hitting the car, but she saw the applicant hit the car while it was stopped; 5.)  the fifth witness states they were driving behind a truck, and saw the applicant going about 60 mph cutting through traffic and he then hit a slowed or stalled car. 

Therefore, he concluded that in accordance with Rule 9, Appendix F, Army Regulation 600-8-1, the applicant’s injuries were because of erratic or reckless conduct without regard for his own personal safety or the safety of others.  The applicant’s injuries should now be considered “NOT IN THE LINE OF DUTY—DUE TO OWN MISCONDUCT”.

On 20 October 1997, a memorandum was provided to the applicant outlining the changes to the previous LODI and also provided the applicant the opportunity to submit a statement through his command in rebuttal within 10 days.

On 21 October 1997, the applicant acknowledged receipt of the memo, which included the additional evidence, considered.  He elected not to make a statement in his own behalf.

On the same day, the LOD investigator submitted a revision to his report in the form of remarks to Appendix A.  The remarks point out that in regard to the motorcycle accident on 23 June 1997, the applicant’s actions were not in the line of duty.  Essentially the applicant was off duty, was considered mentally sound and drove his motorcycle in a reckless manner.  The memo further notes that the determination of NOT IN THE LINE OF DUTY- DUE TO OWN MISCONDUCT, was based first on the Honolulu Police Report received after submitting the initial LODI report; second, that the applicant ignored written and verbal counseling from his command not to ride the motorcycle, thereby disobeying orders and directives from his chain of command.  The applicant was also found not to have a proper motorcycle license, proper insurance and to posses a required motorcycle safety course certificate. 

On 28 October 1997, the administrative law attorney determined that the legal requirements in accordance with AR 600-8-1, had been substantially complied with and that the LODI was legally sufficient.  In essence, the finding that the applicant’s injuries “NOT IN THE LINE OF DUTY—DUE TO OWN MISCONDUCT” was supported by the evidence of record.

On 29 October 1997, a memorandum was provided by the LOD investigator to the applicant’s command which concluded that the applicant’s injuries were due to his own misconduct, as supported by the evidence. 

On an unknown date, a DD Form 261 (Report of Investigation (Line of Duty and Misconduct Status) was approved by the G1’s office, 25TH Infantry Division (LIGHT), by authority of the Secretary of Army. 

On 5 January 1999, the applicant’s commander at the TAMC submitted an appeal of the LODI on behalf of the applicant.  The appeal highlighted areas of inconsistencies within the investigation which were felt to require further reassessment.
On 12 January 1999, the applicant provided additional comments on the appeal to the Casualty/Mortuary Affairs Office, Schofield Barracks. 

On 29 April 1999, the PERSCOM’s Judge Advocate, reviewed the applicant’s appeal dated 12 January 1999.  It was determined, that no new evidence had been presented that would substantially warrant a change in the findings.  Therefore, the finding of NOT IN LINE OF DUTY-DUE TO OWN MISCONDUCT was appropriate.

On 7 July 1999, the PERSCOM notified the applicant’s command that the appeal was denied and the findings of NOT IN LINE OF DUTY-DUE TO OWN MISCONDUCT was reaffirmed.  The denial further suggested that if the applicant thought the finding unfair or unjust, that he has the right to apply to the Army Board for Correction of Military Records under the provision of Army Regulation 15-185.  

In connection with his application to this Board, the PERSCOM was requested to provide a comprehensive advisory opinion concerning the issues raised by the applicant.

On 16 December 1999, the PERSCOM provided an advisory opinion (COPY ATTACHED).  The opinion concludes that, based on the internal PERSCOM legal review, there was substantial evidence supporting the LODI determination of NOT IN THE LINE OF DUTY—DUE TO OWN MISCONDUCT.  Therefore, the finding was appropriate.  The applicant was riding his motorcycle in a westerly direction on the HI-1 Freeway in Hawaii at about 1245 hours on 23 June 1997; conditions were clear, traffic was heavy and the posted speed limit was 55 MPH.  The applicant was traveling at least 60 MPH as he approached a construction area; traffic slowed to around 20 MPH as lanes merged left; and he was unable to stop in time.  Therefore, when he changed lanes and rear-ended a green Mazda, causing his ejection from the motorcycle into the path of an oncoming tractor-trailer truck, he sustained serious injuries. 

The opinion of the PERSCOM, then goes on to state that in Army Regulation 600-8-1, paragraph 39-2c(2), when a formal LODI determination involves a motor vehicle accident, several key factors must be considered: speed of the vehicle, road factors, traffic conditions, light and weather conditions, and the physical condition of the driver, to include sobriety, fatigue and exhaustion.

On 27 December 1999, a copy of the advisory opinion from the PERSCOM was forwarded to the applicant for his information and possible rebuttal, prior to the Board’s consideration of his case.

On 14 January 2000, the applicant responded to the PERSCOM’s opinion.  He stated, in essence, that he was not driving “in and out of traffic” and that excessive speed is only simple negligence.  Further, he claims that he did not receive the full LODI until January 1999.  He contends that if he had received it earlier, he could have personally investigated and interviewed/reinterviewed witnesses.  Due to the length of time since the accident, he cannot locate many of the witnesses.  He still contends that the length of the appeal process is not a “harmless error”.  He also feels that there are inconsistencies in the investigative process.

Army Regulation 600-8-1 Appendix F, Rule 9 (Rules Governing Line of Duty and Misconduct Determinations) provides, in pertinent part, that when an “injury occurs because of erratic or reckless conduct without regard for personal safety or the safety of others, a finding of not in the line of duty must be made.  It is due to misconduct”.  This rule has its chief application in the operation of a vehicle, but may be applied to any deliberate conduct, which risks the safety of self or others.  “Thrill” or “dare-devil” type activities also are examples in which this rule may be applied.

DISCUSSION:  Considering all the evidence, allegations, and information presented by the applicant, together with the evidence of record, applicable law and regulations, and the PERSCOM advisory opinion, it is concluded:

1.  That there is no question that the accident in which the applicant was seriously injured was caused by a number of factors, including his excessive speed for the road and traffic condition, his weaving in and out of traffic and his inability to keep his motorcycle under control.  These findings were based on eyewitness statements and other evidence developed during the investigation by the Honolulu Police Department.

2.  Further, he had been ordered by his chain of command not to drive his motorcycle until he had a proper motorcycle license, had registered his motorcycle with military authorities, had taken the appropriate safety courses, and had proper insurance, none of which appears to have occurred.   

3.  Therefore, the Board must conclude that the accident was caused by the applicant’s willful and deliberate misconduct and that his injuries were caused by his own erratic and reckless conduct without regard for his own personal safety.  This was clearly a violation of good common sense and a finding of NOT IN THE LINE OF DUTY-DUE TO OWN MISCONDUCT in accordance with Rule 9, Appendix F, Army Regulation 600-8-1 was clearly warranted.

4.  The Board concurs with the contentions of the applicant that the investigation of his case was inconsistent at the time in 1997 and that he may not have been advised of his appeal rights on a timely basis.  However, these errors, while serious, do not rise to a level that would invalidate the finding.  Essentially, these errors must be found harmless in view of the seriousness of his misconduct which caused the accident and the injuries to himself.

5.  Notwithstanding the delay in the submission and review of his appeal until early 1999 by the PERSCOM, the Board is satisfied that the applicant’s rights were sufficiently protected during the investigative phase and in the appeal process.  The investigating officer’s findings underwent several legal reviews at the time.

6.  His rebuttal to the PERSCOM opinion in connection with the current review of his case is also noted. However, he has presented no evidence to refute the facts in the case.  The Board is satisfied that the Honolulu Police Department’s investigation at the time of the accident was sufficiently thorough to have obtained statements from all the appropriate eyewitnesses to the accident.  It is only speculative on the applicant’s part that he could have found other witnesses or evidence that would overcome the Honolulu Police Department’s report.  

7.  In order to justify correction of a military record the applicant must show to the satisfaction of the Board, or it must otherwise satisfactorily appear, that the record is in error or unjust.  The applicant having failed to submit sufficient evidence that would satisfy this requirement.

8.  In view of the foregoing, there is no basis for granting the applicant’s request.

DETERMINATION:  The applicant has failed to submit sufficient relevant evidence to demonstrate the existence of probable error or injustice.

BOARD VOTE:

________  ________  ________  GRANT

________  ________  ________  GRANT FORMAL HEARING

__cmf___  ___fe____  __cjs____  DENY APPLICATION

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

INDEX
CASE ID	AR199032737	
SUFFIX		
RECON		
DATE BOARDED	20000912	
TYPE OF DISCHARGE	HD	
DATE OF DISCHARGE		
DISCHARGE AUTHORITY		
DISCHARGE REASON		
BOARD DECISION	DENY	
REVIEW AUTHORITY	DIRECTOR	
ISSUES         1.		
2.		
3.		
4.		
5.		
6.