IN THE CASE OF: BOARD DATE: 21 June 2016 DOCKET NUMBER: AR20160004892 BOARD VOTE: _________ _______ ________ GRANT FULL RELIEF ________ ________ ________ GRANT PARTIAL RELIEF ________ ________ ________ GRANT FORMAL HEARING ___x____ ___x____ ___x ____ DENY APPLICATION 2 Enclosures 1. Board Determination/Recommendation 2. Evidence and Consideration IN THE CASE OF: BOARD DATE: 21 June 2016 DOCKET NUMBER: AR20160004892 BOARD DETERMINATION/RECOMMENDATION: The evidence presented does not demonstrate the existence of a probable error or injustice. Therefore, the Board determined 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. IN THE CASE OF: BOARD DATE: 21 June 2016 DOCKET NUMBER: AR20160004892 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, the mother and legal guardian of a former Soldier, requests correction to his DD Form 261 (Report of Investigation – Line of Duty (LOD) and Misconduct Status), dated 26 January 2014, to show he was injured in the LOD. 2. The applicant states: a. Her son was on active duty at the time of his injury and the bad command climate and bad control of Soldiers in his unit led to his accident. It is illegal in the state of Texas (TX) to operate a motor vehicle under the influence and to operate a motorcycle without a license or insurance. This was the "crime." Due to his injuries, he was unable to issue his own statement describing the events of the day and remains unable to participate in his defense at this time. b. No counsel was provided to assess all the facts and witness statements to derive a defense for her son or, as the U.S. Constitution puts it, "to have compulsory process for obtaining witnesses in his favor." His defense was not presented to an impartial jury and no defense was ever prepared; the LOD reviewing board was not impartial. Had the LOD board requested an unbiased view of the witness statements, she is confident that a plausible and believable defense would have been established to prove sufficient "reasonable doubt" when his LOD was being considered. c. Her son was injured off-base while attending a party at the home of another Soldier where alcohol was provided and available to minors. He was accused of stealing the keys and motorcycle that ultimately led to his injuries. The El Paso, TX, police department took no statements at the scene and did not administer breathalyzer tests to the party guests to document their sobriety levels. A few of these guests later provided sworn statements recounting details of the party and accident. There is no proof that the witnesses were not unimpaired by alcohol use and the El Paso police did not check the identification of the hosts and house guests to determine whether the crime of serving alcohol to minors was committed at the party. d. The El Paso police and ambulance were dispatched to the accident scene. There is no record showing the command at Fort Bliss sent a van or bus to the party location to make sure no other Soldiers would get behind the wheel of any other vehicles. She asserts the Fort Bliss command had to know the Soldier that hosted the party, his rank, and his address. They had to know there was alcohol at the party and should have known that if there was one underage drinker at the party there was likely to be more. e. The Fort Bliss command should have immediately acknowledged that underage drinking on base had been and continued to be a pervasive problem and they should have taken immediate action. The command should have initiated an investigation to determine the fate of the Soldiers involved, particularly the one most critically injured, and they should have obtained all the facts immediately after the accident. She alludes that this would have prevented witnesses from comparing versions of the incident to protect themselves. f. The accident occurred on 16 November 2013 and witness statements were taken on 3 and 4 December 2013 and 6 January 2014. This was 13, 14, and 51 days after the accident. The days that passed allowed each witness to sober up and gave the party hosts ample opportunity to corroborate their stories, perhaps in an effort to withhold a self-incriminating and truthful account of the events of the day that led to her son’s tragic accident. All but one witness admitted to being intoxicated at the party. g. On 3 December 2013, in a sworn statement Private (PV2) AM, the party host, stated at approximately midnight on 17 November 2013, then PFC DTH (the applicant's son) arrived at his house and was already intoxicated. PFC DTH immediately noticed the motorcycle and asked if he could ride it. PV2 AM told him no as he was drunk and unlicensed; however, PFC DTH proceeded to snatch the motorcycle keys from PV2 AM's spouse and hopped on the motorcycle. h. On 4 December 2013, in a sworn statement PVT SB stated that he believed PV2 AM had given her son the keys to his motorcycle and her son had not stolen them. He stated for as long as he had known her son, he found it hard to believe him capable of theft on such a scale. On 4 December 2013, in a sworn statement PV2 NHS stated when her son took off on the motorcycle he saw PV2 AM and a female cheering him on. The female claimed to be PV2 AM’s spouse. i. On 4 December 2013, in a sworn statement PFC JS stated that her son had gotten the key to the bike and that another witness asked who had given him the keys to the bike. It was PFC JS that ran to her son’s aid as he lay at the scene of the accident waiting for the ambulance. j. On 6 January 2014, over a month later, in a sworn statement PV2 DT confirmed the El Paso police did not take statements regarding the accident. When asked if he and PV2 AM had a physical altercation after the accident he said they had a shoving match but no punches were thrown. He also stated he did not observe her son drink alcohol on 16 November 2013. On 6 January 2014, in a sworn statement from PV2 AM’s "supposed" spouse and co-host of the party, she stated her son snatched the motorcycle keys from her in an aggressive manner. k. So many questions should have been asked by everyone reviewing and then determining the LOD recommendation such as: * why was on-base alcohol use still being permitted in 2013, 5 years after the legal drinking age was raised to 21 in 2008 * why was her son at 19 years of age able to legally purchase alcoholic beverages * where did the on-base alcohol come from on 16 November 2013 and who had purchased it * did the Fort Bliss command, or anyone, voraciously seek out the source of the alcohol * why did not someone of rank take responsibility for allowing base rules to be blatantly violated * was her son’s immediate commander questioned and why did he blatantly disregard the rules of conduct regarding alcohol use of minors on base * as a co-host, was it legal for someone to serve alcohol to underage guests l. If the command takes no responsibility for the willful disregard of Fort Bliss rules then what standard of behavior does that establish for young Soldiers looking to them as role models? No witness confirmed that the motorcycle keys were in fact stolen from PV2 AM and his spouse. In order to substantiate their common account of the events that transpired before and during the party, why weren’t other witnesses aggressively sought out? m. Her son was observed outside the barracks and in plain view drinking alcohol. If an underage Soldier is so bold as to be seen drinking outside the barracks, comfortably and without fear of punishment, there is certainly a breakdown in communication. Underage drinking on-base is considered failure to adhere to published Army regulations. 3. The applicant provides: * eight pages of newspaper articles, dated between 29 May 2008 and 13 January 2015 * six DA Forms 2823 (Sworn Statement), dated between 3 December 2013 and 6 January 2014 * memorandum for record (MFR), dated 7 January 2014 * Court order of Letter of Guardianship and Conservatorship of Adult Ward, dated 10 February 2014 * two letters, dated 11 February 2014 and 11 January 2016 CONSIDERATION OF EVIDENCE: 1. The former Soldier, DTH, the applicant’s son, was born on 4 January 1994. He enlisted in the Regular Army on 1 November 2011 when he was 17 years and 10 months of age. He was assigned to the Headquarters and Headquarters Company (HHC), 1st Battalion, 6th Infantry Regiment, Fort Bliss, TX. On 16 November 2013, he was involved in a single vehicle motorcycle accident when the motorcycle he was driving crashed into a wall. He sustained serious head injuries and was hospitalized at Del Sol Medical Center (DSMC), El Paso, TX. He was subsequently moved and hospitalized at Shepherd Center, Atlanta, GA, to be closer to his mother. 2. On 2 December 2013, Captain (CPT) WRP was appointed as the investigating officer (IO) to conduct an Army Regulation (AR) 15-6 (Procedures for IO/Board of Officers) investigation into the facts and circumstances surrounding then PFC DTH’s motorcycle accident on 16 November 2013. 3. The applicant provides DA Forms 2823 dated: a. 3 December 2013, wherein PV2 AM stated, in part, on 16 November 2013 he observed PFC DTH drinking alcoholic beverages in front of the barracks. He was not sure what he was drinking but he knew it was alcohol (emphasis added). PFC DTH told him that he was getting drunk. He told PFC DTH that his spouse was having a birthday party and he was invited. At about midnight on 17 November 2013, PFC DTH arrived at his house and was already intoxicated. PFC DTH immediately noticed the motorcycle and asked if he could ride it. PV2 AM told him no because he was drunk and unlicensed. PFC DTJ then proceeded to snatch the keys from his spouse and hopped on the motorcycle. Multiple people advised him against riding the bike but he neglected to follow instructions. PFC DTH then rode the bike down the street about 200-300 meters, made a U-turn, and crashed on the way back. b. 4 December 2013, wherein PV2 NE stated on 16 November 2013 at about 2335 hours, he arrived at a house party at 3XXX Wxxxxxx Drive, El Paso, TX. When he pulled up, he noticed PFC DTH on a motorcycle riding down the street. When PFC DTH took off, he saw PV2 AM and a female cheering him on. He walked into the house and then heard people yelling. He ran out of the house and saw that PFC DTH had crashed the motorcycle. c. 4 December 2013, wherein PFC JS stated, in part, that on 16 November 2013, he and other friends were invited to a party. He was the designated driver for the evening and they were just hanging out and listening to music and enjoying the night. About an hour later, PFC DTH arrived and said he was not staying long. Later on, other friends of his arrived. About 10 minutes later, PFC DTH got the keys to PV2 AM’s bike and took off down the street. PFC DTH was drunk and he (PFC JS) tried to get the keys; the next thing he knew PFC DTH was driving down the street and was coming back around the corner. The bike flipped and he found PFC DTH lying in a bloody ball and unconscious. He did not know how PFC DTH had gotten the keys. He waited to give the police the story and then his squad leader took him to his apartment when it was over. d. 4 December 2013, wherein PVT SB stated, in part, that on 16 November 2013, he went to a party at a house belonging to PV2 AM. Around 2100 hours, he saw PFC DTH who appeared to have consumed alcohol. The events that transpired next were unknown to him until someone notified him of the accident. He then went directly to PFC DTH’s side to perform first aid. He believed PV2 AM had given PFC DTH the keys because he found it hard to believe that PFC DTH was capable of theft. e. 6 January 2014, wherein Ms. CT verified she was the spouse of PV2 AM who hosted the party on 16 - 17 November 2013. She stated she did not know PFC DTH prior to the accident. She stated he wore tennis shoes and a short-sleeved shirt. She did not observe him drinking alcohol, and had no idea what type or how much he drank. To her knowledge, the El Paso police did not take any statements. PFC DTH snatched the motorcycle keys from her in an aggressive manner. She did not think he intended to hurt her, he just wanted the keys. PFC DTH then ran to the bike, hopped on, and rode the bike down the street. She did not observe the crash as she went inside after he stole the keys. 4. The applicant provides an MFR, dated 7 January 2014, subject: LOD Investigation into Injuries Sustained on 16 November 2013 by PFC DTH, wherein the IO, CPT WRP, stated, in part: a. At the time of the accident, PFC DTH had 16 months of service, had not deployed, and was 19 years of age. He was not licensed on a motorcycle, was intoxicated, and was not wearing a helmet. Due to his own misconduct, he found the injuries PFC DTH incurred on 16 November 2013 were not incurred in the LOD. Under-age drinking and failure to adhere to published Army regulations and Fort Bliss policies were the ultimate factors contributing to the motorcycle accident. b. While attending a party at the home of PV2 AM, PFC DTH stole the keys to the motorcycle when he grabbed the keys from PV2 AM's spouse. He then left the party on the motorcycle and traveled about 200 meters southbound, turned around, and crashed into a wall and trees on the return trip. The 200 meter distance from the house and crash site reduced the witnesses' ability to describe the accident in detail. c. El Paso Police Department Accident Reports do not cite traffic as a contributing factor. PFC DTH's use of alcohol only magnified the effects of low light conditions and excessive speed. PFC DTH was traveling northbound into a long, gradual bend when he struck the curb, trees, and ultimately the wall. El Paso police reports indicate that lack of control and speed were also contributing factors. d. AR 600-8-4 (LOD Policy, Procedures, and Investigations), paragraph 2-6, states that an injury, disease, or death is presumed to be in the LOD unless refuted by substantial evidence contained in an investigation. Direct evidence indicated PFC DTH's actions were not conducted in the LOD. PFC DTH's blood alcohol content was measured at DSMC at .131. TX Penal Code defines the term intoxicated as having a blood alcohol content of 0.08 or more. PV2 OT stated PFC DTH's speech was not slurred but he was staggering and he was clearly drunk. Physical impairment caused by his voluntary intoxication was the proximate cause of the accident. e. PFC DTH was not wearing a helmet or proper attire as mandated by AR 385-10 (The Army Safety Program), chapter 11, and Fort Bliss Command Policy Letter Number 5 (Motorcycle Safety Policy). A reasonable person can assume that a helmet and other required personal protective equipment would not have prevented the accident, but would have reduced the severity of his injuries. He was not licensed for the motorcycle nor was he keeping within the standards of AR 385-10 or the policy letter. f. There was no reasonable expectation that company, platoon, or squad leadership could have prevented the accident. The HHC, 1st Battalion, 6th Infantry commander and first sergeant (1SG) address motorcycle safety and the legal implications of underage drinking at the weekly close-out formation without exception (emphasis added). 5. In a letter to the applicant, dated 11 February 2014, subject: Notice of Adverse LOD Determination, from CPT WRP, the IO notified her that: a. He was contemplating finding her son’s actions on 16 November 2013 to not be in the LOD. He found the intoxication, under-age drinking, and failure to adhere to published Army regulations were the ultimate factors contributing to PFC DTH?s motorcycle accident. b. He was enclosing copies of medical reports, police reports, and sworn statements from Soldiers who were with her son on the night of his accident. She had 30 days from the date of receipt of the letter to provide a rebuttal on her son's behalf. 6. The applicant subsequently summited a rebuttal on behalf of PFC DTH. 7. Two legal reviews subsequently found the IO proceedings complied with the legal requirements; there were no procedural, substantial, or harmless errors noted; and there was sufficient evidence to support the findings of the IO. The information provided in the rebuttal statement by the applicant did not impact the proper determination. The proceedings and report were legally sufficient in accordance with AR 600-8-4 and AR 15-6. 8. PFC DTH's record contains a DD Form 261 (Report of Investigation/LOD and Misconduct Status) wherein it shows the IO determined that on or about 2355 hours, 16 November 2013, then PFC DTH was in an accident while driving a motorcycle while intoxicated and he was not wearing a helmet or other personal protective equipment (PPE). The intensity of the accident caused a brain injury. It stated negligence was the proximate cause of the motorcycle accident leading to the hospitalization and comatose condition of PFC DTH. He had a blood alcohol level of .131 and he was not licensed on a motorcycle. His elevated blood alcohol, lack of mandated personal protective equipment (PPE), and lack of motorcycle training were the significant contributing factors leading to his accident and injury. PFC DTH was found to not be in the LOD – due to his own misconduct. On 26 June 2014, the approving authority signed the DD Form 261 and approved the LOD findings on behalf of the Secretary of the Army. 9. The applicant provides a letter to her, dated 11 January 2016, from Colonel (COL) JAC, Director, Casualty and Mortuary Affairs, U.S. Army, Human Resources Command (HRC). COL JAC stated: a. Their office received a Congressional inquiry regarding her son, [now Specialist] (SPC) DTH and his LOD determination. In accordance with AR 600-8-4, paragraph 2-6c, LOD determinations must be supported by substantial evidence and by a greater weight of evidence than supports any different conclusion. Paragraph 4-17a (1) states substantial new evidence must be submitted for their office to analyze the case and render a determination. b. HRC would consider an appeal if she could provide new evidence other than the evidence contained in the original case. If she could not provide substantial new evidence, her appeal must be submitted to the Army Review Boards Agency. REFERENCES: 1. AR 600-8-4 prescribes policies, procedures, and mandated tasks governing LOD determinations of Soldiers who die or sustain certain injuries, diseases, or illnesses. a. Paragraph 2-6c states LOD 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, considering all direct evidence, that is, evidence based on actual knowledge or observation of witnesses; and/or all indirect evidence, that is, facts or statements from which reasonable inferences, deductions, and conclusions may be drawn to establish an unobserved fact, knowledge, or state of mind. b. Paragraph 4-1 states an adverse LOD determination is an administrative determination and not a punitive or judicial action (emphasis added). Disciplinary and other administrative actions, if warranted, shall be taken independently of an LOD determination. c. Paragraph 4-10b states an injury incurred as the "proximate result" of prior and specific voluntary intoxication is incurred at 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 impairment, and the impairment was a proximate cause of the injury. d. Paragraph 4-14 states if the investigation involves any motor vehicle accident it is important to address: (1) the speed of vehicle involved, as evidenced by testimony of witnesses, skid marks, condition of the roads, and damage to the vehicle; (2) traffic laws and regulations in force pertinent to the accident, including speed limits and required safety devices; and (3) physical condition of the driver, including fatigue, exhaustion, and the effects of their physical condition on the accident. e. Appendix B of this regulation states 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. f. Appendix B, Rule 1, states injury, disease, or death directly caused by the individual’s misconduct or willful negligence is not in LOD. It is due to misconduct. This is a general rule and must be considered in every case where there might have been misconduct or willful negligence. Generally, two issues must be resolved when a Soldier is injured, becomes ill, contracts a disease, or dies: (1) whether the injury, disease, or death was incurred or aggravated in the LOD; and (2) whether it was due to misconduct. 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 the LOD. 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. 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 the LOD. 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. i. Appendix B, Rule 9, states injury or death because of erratic or reckless conduct, without regard for personal safety or the safety of others, is not in the LOD. It is due to misconduct. This rule has its chief application in the operation of a vehicle but may be applied with any deliberate conduct that risks the safety of self or others. "Thrill" or "dare-devil" type activities are also examples of when this rule may be applied. 2. AR 385-10, chapter 11, prescribes policies, procedures, and requirements governing the operation of motorcycles. a. Paragraph 11-9a states operators of Government-owned and privately owned motorcycles on Army installations must be appropriately licensed to operate on public highways. When State or local laws require special licenses to operate privately owned motorcycles such license requirements, at a minimum, will be required for operating those vehicles on Army installations. Motorcycle riders who operate motorcycles on or off post must comply with the skills training, licensing, and permit requirements of the State. b. Paragraph 11-9b states the Army Progressive Motorcycle Program is designed to consistently keep motorcycle operator training current and sustain or enrich rider skills. Prior to operating any motorcycle, Soldiers will successfully complete an approved curriculum for motorcycle operator's training. c. Paragraph 11-9d states commanders will ensure all Soldiers operating motorcycles at any time on or off Army installations will wear the following PPE: (1) helmets that meet the Department of Transportation safety standard and are worn properly fastened under the chin; (2) eye protection; (3) foot protection that includes sturdy over-the-ankle footwear; and (4) protective clothing including long-sleeved shirt or jacket, long trousers, and full-fingered gloves or mittens made from leather or other abrasion-resistant material. Riders are encouraged to select PPE that incorporates fluorescent colors and retro-reflective material. 3. The Fort Bliss Standards Handbook details the standards of conduct each Service Member is expected to live by and enforce for his/her professional and social lives, regardless of rank, component, or branch of service. It is provided to each Service Member upon arrival to Fort Bliss as is the custom for most military installations. It states, in part: a. Soldiers will not carry (on foot or in privately owned vehicles) open bottles or cans of alcoholic beverages except in areas designated for consumption of alcoholic beverages, such as picnic grounds. b. Soldiers will know and use the designated driver rule. In lieu of a designated driver use public transportation such as taxis, contact your chain of command, or call the military police for a ride home. "No DUI El Paso" provides designated drivers between 2300 and 0230 Fridays and Saturdays, and will transport your vehicle to your residence. c. In the state of TX, the legal limit for driving while intoxicated (DUI) is a .08 blood alcohol content. For drivers under the age of 21, any detectable amount of blood alcohol exceeds the legal limit for DUI. Soldiers under the age of 21 will not consume alcohol on or off post. DISCUSSION: 1. Notwithstanding the applicant's contention that Fort Bliss commanders allowed underage drinking on post, the Army has always had an intolerance for the abuse of alcohol by Soldiers and has never condoned underage drinking on or off military installations. Commanders and leaders at all levels of the chain of command are committed to safeguarding all Soldiers and ensuring Soldiers are aware of their responsibilities to conduct themselves at all times in accordance with the Army values, regulations, and laws. From the time a Soldier enters basic training and throughout their military service, classes, safety briefings, and warnings of the dangers and consequences of abusing alcohol, driving while intoxicated, and underage drinking are constantly emphasized to all Soldiers. 2. Although one Soldier stated he knew PFC DTH was drinking alcohol in front of the barracks, he also stated he did not know what he was drinking. As all public consumption of alcohol, except in designated areas, was prohibited on Fort Bliss and PFC DTH was under the legal drinking age, there is a high probability that he was not drinking from a container that could be identified as containing alcohol. 3. An adverse LOD determination is not a punitive or judicial action; it is an administrative determination. As such, there is no requirement to provide Soldiers legal counsel when an LOD investigation is initiated. However, LOD determinations must be supported by substantial evidence and findings of not in LOD should be determined by a greater weight of evidence than supports any other conclusion. 4. The evidence of record clearly showed SPC DTH was intoxicated, did not have a motorcycle license, and was not wearing the required PPE at the time of his accident. Although there were conflicting reports of how SPC DTH obtained the motorcycle keys that is a moot point. His intoxication and reckless conduct were the proximate causes of the accident. 5. The accident was clearly a result of his own misconduct and was properly determined not to have been incurred in the LOD in accordance with the governing regulations. //NOTHING FOLLOWS// ABCMR Record of Proceedings AR20150000953 Enclosure 1 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS ABCMR Record of Proceedings (cont) AR20160004892 2 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 1 ABCMR Record of Proceedings (cont) AR20160004892 12 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 2