PROCEEDINGS

	IN THE CASE OF:  

	BOARD DATE:           23 August 2001                   
	DOCKET NUMBER:   AR2001057603

	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	
	Mrs. Nancy Amos		Analyst	

  The following members, a quorum, were present:

	Mr. John H. Kern		Chairperson	
	Mr. Thomas Lanyi		Member	
	Ms. Paula 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.  The applicant requests that his discharge under other than honorable conditions (UOTHC) be changed to an honorable, medical discharge.

3.  The applicant states that he sustained a devastating head injury while on active duty.  The Army failed to address the extremely serious nature of his injuries and the level of care received was inappropriate.  The nature of his injury clearly caused him to act in a manner inconsistent with his previous performance. He was returned to full duty but due to his inability to cope due to cognitive and behavioral disturbances, he sought to return to his childhood home environment. When he was returned to Army custody he was incarcerated.  Instead of attempting to medically reconcile symptoms of anxiety and depression and complaints of headaches and impaired memory, he was told that if he wanted to go home all he had to do was sign papers.  He was unable to comprehend what he was signing, he signed, and was sent home.  Supporting evidence is as listed on the DD Form 149.

4.  The applicant’s military records show that he enlisted in the Regular Army on 9 August 1979.  He completed basic training and advanced individual training and was awarded military occupational specialty 12B (Combat Engineer).  He completed basic airborne training. 

5.  On 20 September 1980, the applicant was thrown from a truck moving at about 40 miles per hour.  He was found unresponsive to verbal commands but did respond to painful stimuli with bleeding from his left ear when he was seen at the Womack Army Hospital Emergency Room.  He was transferred to Moore Memorial Hospital in Pinehurst, NC where a CT scan that day showed a thin extracerebral hematoma in the right frontal area and also probably a small hematoma in the right subfrontal area without mass effect.  After 23 September 1980, he gradually came out of his coma.  On 30 September 1980, a repeat CT scan showed right frontal lobe edema with some atrophic changes and some minimal low density areas in right parietal region without mass effect or hematoma.  It also showed a nondisplaced skull fracture in the left occipital area. On an unknown date, he was transferred back to Womack Army Hospital for further convalescent care.  On 8 October 1980, he was removed from the seriously ill list.

6.  Different medical documents give different dates for the applicant’s convalescent leave but his Personnel Qualification Record, DA Form 2-1, shows that he was absent without leave (AWOL) from 26 November – 7 December 1980.

7.  The applicant was admitted to a VA hospital on 10 December 1980 for evaluation of intermittent dizziness when looking up and feeling of nausea without vomiting but with some blood vision.  A neurological consultation found that he presented a post head injury syndrome which was not uncommon in that period of time.  A CT scan of the head was done and was reported as in the normal range with no recent abnormalities noted.  He was discharged on          18 December 1980.

8.  On 12 February 1981, the applicant returned to Womack Army Hospital for follow up examination.  On 25 February 1981, he was referred to NeuroPsychology.  This evaluation was apparently never done.

9.  On 27 February 1981, the applicant departed AWOL.  His duty status was changed from AWOL to dropped from the rolls effective 9 March 1981.  He returned to military control 25 April 1981.

10.  There is no evidence to show the applicant received further medical treatment or a separation physical examination.  The line of duty (LOD) determination is not available.  The court-martial charge sheet is not available.  The discharge packet is not available.

11.  On 23 June 1981, the applicant was discharged, in pay grade E-1, with a discharge UOTHC under the provisions of Army Regulation 635-200, chapter 10, discharge in lieu of trial by court-martial.  He had completed 1 year, 8 months, and 6 days of creditable active service and had 68 days of lost time.  He had no other record of disciplinary action and had received two letters of commendation.

12.  On 28 July 1993, the applicant appeared before a VA appeal hearing to determine whether his injuries were incurred in the line of duty.  The applicant testified that his unit had just returned from jungle training in Panama and they had the night off.  He and several others had a couple of beers and then left the bar they were at because it was closing.  He was in the back of the pickup truck.  The truck slowed down and came to a halt.  One of the passengers yelled at him to “get into the front of the truck.”  He jumped up on top of the truck, and jumped up and down on top of the hood of the pickup, and then all of a sudden the truck took off.  All of a sudden he went climbing back up over the cab, and the brakes were applied, and that was the last he remembered.  The board determined the injuries were the result of his own misconduct.  It appears from testimony in this hearing that the Army had also determined that his injuries were a result of willful misconduct.  

13.  Army Regulation 635-40 governs the evaluation of physical fitness of soldiers who may be unfit to perform their military duties because of physical disability.  The regulation defines “physically unfit” as unfitness due to physical disability.  In pertinent part, it states that under the laws governing the Army Physical Disability Evaluation System, soldiers who sustain or aggravate physically unfitting disabilities must meet several LOD 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.

14.  Army Regulation 600-8-1 provides that an LOD investigation must be conducted in all cases of injury not a result of enemy action.  A formal investigation must be conducted for injuries involving the abuse of alcohol.
Appendix F, Rules Governing Line of Duty and Misconduct Determinations, provides specific rules of misconduct:  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.  Rule 3 provides that injury or disease 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 is on the effect of the alcohol on the member's conduct, as well as the physical effect on his body.  Any erratic or reckless conduct caused by the effect of the alcohol which directly causes the injury is misconduct.  Rule 4 provides that injury or disease 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 the mere drinking of alcoholic beverages is not misconduct, one who voluntarily becomes intoxicated is held to as high as a standard of conduct as one who is sober.  Intoxication does not excuse the individual's conduct.

15.  Army Regulation 600-8-1 defines willful negligence as a conscious and intentional omission of the proper degree of care which a reasonably careful person would exercise under the same or similar circumstances.  Willfulness will be presumed when the member’s conduct demonstrates a gross, reckless, wanton, or deliberate disregard for the foreseeable consequences of an act.  The authorized finding for an injury or disease that was proximately caused by intentional misconduct or willful negligence of the member is Not in Line of Duty - Due to Own Misconduct.

16.  Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.  Chapter 10 of that regulation provides, in pertinent part, that a member who has committed an offense or offenses for which the authorized punishment includes a punitive discharge may submit a request for discharge for the good of the service in lieu of trial by court-martial.  The request may be submitted at any time after charges have been preferred and must include the individual’s admission of guilt.  A discharge UOTHC is normally considered appropriate; however, the discharge authority may direct an honorable or a general discharge.  A general discharge is a separation from the Army under honorable conditions of an individual whose military record is not sufficiently meritorious to warrant an honorable discharge.  A member will not necessarily be denied an honorable discharge solely by reasons of a specific number of convictions by courts-martial or actions under Article 15 of the Uniform Code of Military Justice.  It is the pattern of behavior and not the isolated instance which should be considered the governing factor in determination of character of service to be awarded.

CONCLUSIONS:

1.  The applicant was not eligible for a physical disability separation.  Even though the LOD determination is not available, the applicant’s own testimony at his VA appeals hearing attests to the fact that his injury was the result of his misconduct through willful negligence and his use of alcohol.  

2.  In the absence of evidence to the contrary, it is presumed that the discharge proceedings were conducted in accordance with law and regulations applicable at the time.  At this point in time, it cannot be determined for certain if the applicant’s head injuries were mitigating factors in his departing AWOL.

3.  However, the Board notes that the applicant had no record of disciplinary action prior to his AWOL.  He had two letters of commendation.  His head injury might have been a mitigating factor in his AWOLs.  The Board concludes that any doubt should be resolved in favor of the applicant and that it would be equitable to upgrade his discharge to a general discharge in consideration of the guidelines given in Army Regulation 635-200 for determining characterization of service.

4.  In view of the foregoing, it would be appropriate to correct the applicant’s records as recommended below.

RECOMMENDATION:

1.  That all of the Department of the Army records related to this case be corrected by showing that the applicant was given a general discharge from the Army on 23 June 1981, under the provisions of Army Regulation 635-200, chapter 10 for the good of the service.

2.  That the applicant be issued a General Discharge Certificate from the Army of the United States, dated 23 June 1981, denoting a general discharge in lieu of the discharge UOTHC now held by him.

3.  That the applicant be issued a new DD Form 214 reflecting the above corrections.

4.  That so much of the application as is in excess of the foregoing be denied.

BOARD VOTE:  

__jhk___  __tl____  __pm____  GRANT AS STATED IN RECOMMENDATION

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION

			John H. Kern
		______________________
		        CHAIRPERSON

INDEX

CASE ID	AR2001057603	
SUFFIX		
RECON		
DATE BOARDED	20010823	
TYPE OF DISCHARGE	UOTHC	
DATE OF DISCHARGE	19810623	
DISCHARGE AUTHORITY	AR 635-200, ch 10	
DISCHARGE REASON	A70.00	
BOARD DECISION	(GRANT)	
REVIEW AUTHORITY		
ISSUES         1.	110.00	
2.		
3.		
4.		
5.		
6.