IN THE CASE OF: BOARD DATE: 16 February 2016 DOCKET NUMBER: AR20150007836 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 that his line of duty (LOD) determination be changed from “not in LOD – due to own misconduct” to “in LOD.” 2. The applicant states, in effect, there was a lack of consideration for his diagnosis of post-traumatic stress disorder (PTSD). He believes the undiagnosed and untreated PTSD from three combat deployments contributed to his poor decision making. He further contends that the conditions of the road prevented him from being able to control the vehicle. He respectfully asks that the Board change his LOD decision from “No” to “Yes” so that he can apply to increase his Department of Veterans Affairs (VA) disability rating. 3. The applicant provides documents tabbed A – H, which consist of character letters, awards, evaluations, LOD documents, substance abuse treatment documents, medical board documents, informal physical evaluation board (PEB) proceedings, his VA rating, and photos. CONSIDERATION OF EVIDENCE: 1. On 6 June 2002, the applicant enlisted in the Regular Army. After completing initial entry training, he was awarded military occupational specialty 12H (Construction Engineer). A review of his records show he also served as an instructor. He was promoted to pay grade E-6 on 1 June 2007. 2. He deployed to Iraq during the periods 20 January 2004 – 20 January 2005, 8 December 2005 – 3 December 2006 and 12 November 2008 – 11 November 2009. 3. A DA Form 2173 (Statement of Medical Examination and Duty Status) shows that on 3 September 2011 the service member (SM) was riding his motorcycle on a windy road and his rear tire slide out when he hit pea gravel. The SM was eventually thrown from the bike and woke in the road unable to move any body parts. He suffered cervical spine fractures times three leading to quadriplegia. 4. On 13 September 2011, the applicant’s commander formally appointed an investigating officer (IO). 5. A toxicology report, dated 12 October 2011, shows his blood alcohol concentration (BAC) level was 0.207 percent (%). The maximum legal BAC level was 0.080%. 6. On 4 January 2012, the IO’s findings were that the applicant was operating a motorcycle in a reckless manner (too fast for conditions) while under the influence of alcohol. The IO found the accident was not in LOD – due to own misconduct. 7. On 29 February 2012, the applicant submitted an appeal of the LOD determination. 8. On 20 March 2012, a legal review found the LOD determination to be legally sufficient based on Army Regulation (AR) 600-8-4 (LOD Policy, Procedures, and Investigations). Rule B-4 states, “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.” 9. On 23 March 2012, the appointing authority approved the IO’s findings and concurred with the LOD recommendation. 10. On 20 August 2012, a medical evaluation board (MEB) diagnosed five conditions that failed to meet retention standards: * partial quadriplegic (spinal cord injury with C8 sensory and C7 motor level) * fractured C1, C6, and C7 with fusion * bilateral hand tenodesis * recurrent urinary tract infection, secondary to self-catheterization, C7 paralysis * PTSD 11. On 10 September 2012, the applicant agreed with the MEB findings and recommendations. He was referred to a PEB. 12. On 12 January 2014, a DA Form 199 (Informal Physical Evaluation Board (PEB) Proceedings) shows the PEB found the applicant physically unfit and recommended he be placed on the temporary disability retired list (TDRL) with a rating of 50% for unfitting diagnoses of: * PTSD * partial quadriplegic (spinal cord injury with C8 sensory and C7 motor level) * partial quadriplegic, paralysis of right upper extremity, right hand tenodesis * partial quadriplegic, paralysis of left upper extremity, left hand tenodesis * recurrent urinary tract infection secondary to self-catheterization * cervical degenerative joint disease listed as cervical fractures The 50% rating was based solely on PTSD. All other unfitting conditions were not rated as they were non-compensable because they were not incurred in LOD. 13. On 28 January 2014, the applicant indicated he did not concur with the PEB findings and demanded a formal hearing without personal appearance. He also requested representation by counsel. The record does not show that a formal hearing took place. 14. His complete service medical records are not available for review. 15. There is no evidence in his official military personnel file indicating he had been diagnosed with PTSD prior to the incident. 16. On 27 May 2014, he was retired by reason of temporary disability and credited with 11 years, 11 months, and 22 days of net active service. 17. The applicant provided a medical report, dated 14 May 2012, which states “The multiple Axis I diagnoses (PTSD) are not related. The symptoms of each mental disorder cannot be delineated from each other because the symptoms of cognitive disorder due to traumatic brain injury from the motorcycle accident overlaps with symptoms of years of alcohol dependency.” 18. On 17 August 2015, Headquarters U.S. Army Medical Command, provided an advisory opinion. The advisory official did not make a recommendation but states that PTSD and substance abuse disorders can be mitigating factors in determining if a separation action is "the correct and just course of action." 19. The applicant was provided a copy of the advisory opinion for his review and comment. He did not object to the advisory opinion. 20. The applicant provided a memorandum for record, dated 31 October 2007, stating that he was assessed for an alcohol problem on 23 July 2007. As a result of his assessment, he did not meet the criteria for a substance abuse diagnosis. He successfully completed 14 hours of alcohol education classes from the Alcohol & Drug Abuse Prevention Training (ADAPT) program. 21. AR 600-8-4, Appendix B (Rules Governing LOD and Misconduct Determinations), 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. That the Soldier may have had a pre-existing condition that caused increased susceptibility to the effects of the drug does not excuse the misconduct." DISCUSSION AND CONCLUSIONS: 1. The applicant's request that the final LOD determination of "Not In LOD-due to own misconduct" be changed to "In the LOD" has been carefully considered. However, there is insufficient evidence to support granting the requested relief. 2. The medical evidence of record and that provided by the applicant fails to provide a compelling medical basis to overturn the LOD determination. The evidence of record shows he sustained injuries as a result of a single vehicle accident while intoxicated. His toxicology report shows his BAC was well over the legal limit. 3. The evidence of record shows the applicant's LOD investigation was accomplished in compliance with applicable regulations with no indication of procedural errors which would have jeopardized his rights. The evidence of record supports the conclusion that the LOD findings and determination are correct. BOARD VOTE: ________ ________ ________ GRANT FULL RELIEF ________ ________ ________ GRANT PARTIAL RELIEF ________ ________ ________ GRANT FORMAL HEARING ____X___ ____X___ ____X___ DENY APPLICATION BOARD DETERMINATION/RECOMMENDATION: The evidence presented does not demonstrate the existence of a probable error or injustice. Therefore, the Board determined that the overall merits of this case are insufficient as a basis for correction of the records of the individual concerned. _______ _ _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) AR20150007836 3 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1 ABCMR Record of Proceedings (cont) AR20150007836 5 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1