ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

RECORD OF PROCEEDINGS


		IN THE CASE OF:  

		BOARD DATE:  20 February 2020

		DOCKET NUMBER:  AR20170017112


APPLICANT REQUESTS:

*	reversal of the not in the line-of-duty (NILOD) determination
*	initiation of a new line-of-duty (LOD) investigation to determine that his injuries 
were incurred in the LOD

APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD:  
DD Form 149 (Application for Correction of Military Record under the Provisions of 
Title 10, U.S. Code, Section 1552).

REFERENCES:

1.  Title 10, U.S. Code, section 1552(b), provides that applications for correction of 
military records must be filed within 3 years after discovery of the alleged error or 
injustice.  This provision of law also allows the Army Board for Correction of Military 
Records (ABCMR) to excuse an applicant's failure to timely file within the 3-year statute 
of limitations if the ABCMR determines it would be in the interest of justice to do so.

2.  Army Regulation 600-8-4 (LOD Policy, Procedures, and Investigations), in effect at 
the time, prescribed policies and procedures for investigating the circumstances of 
disease, injury, or death of a Soldier.  It provided standards and considerations used in 
determining LOD status.  LOD determinations are essential for protecting the interest of 
both the individual concerned and the U.S. Government where service is interrupted by 
injury, disease, or death.  Soldiers who are on active duty for a period of more than 
30 days will not lose their entitlement to medical and dental care, even if the injury or 
disease is found to have been incurred NILOD and/or because of the Soldier's 
intentional misconduct or willful negligence.  A person who becomes a casualty 
because of his or her intentional misconduct or willful negligence can never be said to 
be injured, diseased, or deceased in the LOD.  Such a person stands to lose substantial 
benefits as a consequence of his or her actions; therefore, it is critical that the decision 
to categorize injury, disease, or death as NILOD only be made after following the 
deliberate, ordered procedures described in this regulation.  The definition of LOD in 
Army Regulation 600-8-4 is confined to the purpose of this regulation and is completely 
distinct from usage under Title 28, U.S. Code, section 2671 (Definitions).  It has no 
bearing on the meaning or application of the phrase "acting within the scope of his office 
or employment" as used in the context of Title 28, U.S. Code, section 2671.

	a.  Paragraph 2-3 (Requirements for LOD Investigations) stated LOD 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, an LOD investigation may or may not be 
required to make this determination.

	b.  Paragraph 2-6 (Standards Applicable to LOD Determinations) stated decisions on 
LOD determinations will be made in accordance with the standards of the regulation.

		(1)  An injury, disease, or death is presumed to be in the LOD unless refuted by 
substantial evidence contained in the investigation.

		(2)  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:

		(a)  all direct evidence (i.e., evidence based on actual knowledge or observation 
of witnesses) and/or

		(b)  all indirect evidence (i.e., facts or statements from which reasonable 
inferences, deductions, and conclusions may be drawn to establish an unobserved fact, 
knowledge, or state of mind).

	c.  Paragraph 3-8 (Investigation) stated the investigating officer (IO) must be free 
from bias or prejudice.  The IO should never begin the investigation with predetermined 
ideas as to the cause of the injury, disease, or death.  To make a thorough and impartial 
investigation, the IO should determine the actual facts, not as reported, but as they 
actually occurred, as far as possible.  The IO should then be able to make an intelligent 
and accurate determination.  Promptness is crucial in conducting and completing the 
investigation.  Delays often result in the failure to secure important information.

	d.  Paragraph 3-8e stated the IO will collect the evidence as follows:

		(1)  The IO will ascertain dates, places, persons, and events definitely and 
accurately.  It is essential to provide the appointing, reviewing, and final approving 
authorities with an accurate understanding of the incident being investigated.  The IO 
must ensure that the investigation contains enough pertinent information and data to 
enable later reviews to be made without more information.

		(2)  All findings of fact must be supported by exhibits.  Written statements by the 
IO describing matters personally observed and learned by the IO are convenient means 
to document facts and, when appropriate, will be attached; however, a statement by the 
IO should not be used as a substitute for witness statements when they can be 
obtained.  The following is provided as a convenient checklist of evidence that should 
be included (as applicable) in formal reports of investigation concerning misconduct and 
LOD under the provisions of this regulation:

		(a)  all facts leading up to and connected with an injury, disease, or death;

		(b)  copies of military or civilian police reports, pertinent hospitalization or clinical 
records, autopsy reports, records of coroner's inquests or medical examiner's reports, 
pathological and toxicological studies, and boards of injury for missing persons; and

		(c)  complete information concerning the site and terrain where the incident in 
question occurred and photographs, maps, charts, diagrams, or other exhibits that may 
be deemed helpful to a complete understanding of the incident.

	e.  Paragraph 3-8f(6) stated that 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 and to offer rebuttal.  
Certified mail should be used and the mailing receipt and return receipt (if any) attached 
to the LOD investigation.  If no response is received, the IO may conclude the 
investigation and finalize his or her determination.  If a response is received, the IO will 
review and evaluate the Soldier's response prior to making the final determination.

	f.  Paragraph 4-14 stated if the subject matter of the investigation involves any motor 
vehicle accident, the following facts are important and should be addressed:

		(1)  speed of vehicle involved, as evidenced by testimony of witness, skid marks, 
condition of roads and the damage of the vehicle;

		(2)  road factors, including all road characteristics, natural obstruction to the 
driver's vision and traffic signs;

		(3)  other vehicles, including any part played by them in creating the conditions 
that resulted in the accident;

		(4)  traffic conditions at the scene of the accident and their effect on the accident;

		(5)  traffic laws and regulations in force pertinent to the accident, including speed 
limits and required safety devices;

		(6)  light and weather conditions and their effect on driving conditions;

		(7)  mechanical condition of the vehicles involved;

		(8)  physical condition of the driver or drivers, including sobriety, fatigue, and 
exhaustion, and the effect of their physical condition on the accident;

		(9)  mental condition of the drivers and the effect of the mental condition of the 
drivers on the accident; and

		(10)  driving experience of the driver or drivers.

	g.  Appendix B (Rules Governing LOD and Misconduct Determinations):

		(1)  Rule 1 stated that injury, disease, or death directly caused by the individual's 
misconduct or willful negligence is NILOD.  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:

		(a)  whether the injury, disease, or death was incurred or aggravated in the LOD 
and

		(b)  whether it was due to misconduct.

		(2)  Rule 2 stated mere violation of military regulation, orders, or instructions, or 
of civil or criminal laws, if there is no further sign of misconduct, is no more than simple 
negligence.  Simple negligence is not misconduct.  Therefore, a violation under this rule 
alone is not enough to determine that the injury, disease, or death resulted from 
misconduct.  However, the violation is one circumstance to be examined and weighed 
with the other circumstances.

		(3)  Rule 8 stated injury or death caused by a Soldier driving a vehicle when in an 
unfit condition of which the Soldier was or should have been aware is NILOD.  It is due 
to misconduct.  A Soldier involved in an automobile accident caused by falling asleep 
while driving is not guilty of willful negligence solely because of falling asleep.  The test 
is whether a reasonable person under the same circumstances would have undertaken 
the trip without expecting to fall asleep while driving.  Unfitness to drive may have been 
caused by voluntary intoxication or use of drugs.

		(4)  Rule 9 stated injury or death because of erratic or reckless conduct, without 
regard for personal safety or the safety of others, is NILOD.  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.

	i.  Section II (Terms) defined:

		(1)  intentional misconduct as any wrongful or improper conduct which is 
intended or deliberate is intentional misconduct. Intent may be expressed by direct 
evidence of a member's statements or may be implied by direct or indirect evidence of 
the member's conduct.  Misconduct does not necessarily involve committing an offense 
under the Uniform Code of Military Justice or local law;

		(2)  preponderance of evidence as evidence that tends to prove one side of a 
disputed fact by outweighing the evidence to the contrary (that is, more than 
50 percent).  Preponderance does not necessarily mean a greater number of witnesses 
or a greater mass of evidence; rather preponderance means a superiority of evidence 
on one side or the other of a disputed fact.  It is a term that refers to the quality, rather 
than the quantity, of the evidence; and

		(3)  willful negligence as a conscious and intentional omission of the proper 
degree of care that a reasonably careful person would exercise under the same or 
similar circumstances is willful negligence.  Willful negligence is a degree of 
carelessness greater than simple negligence.  Willfulness may be expressed by direct 
evidence of a member's conduct and will be presumed when the member's conduct 
demonstrates a gross, reckless, wanton, or deliberate disregard for the foreseeable 
consequences of an act or failure to act.  Willful negligence does not necessarily involve 
committing an offense under the Uniform Code of Military Justice or local law.

3.  Army Regulation 15-6 (Procedures for Administrative Investigations and Boards of 
Officers) establishes procedures for conducting preliminary inquiries, administrative 
investigations, and boards of officers when such procedures are not established by 
other regulations or directives.

	a.  Paragraph 1-8 (Function of Preliminary Inquiry, Administrative Investigation, and 
Board of Officers) states the primary function of any preliminary inquiry, administrative 
investigation, or board of officers is to ascertain facts, document and preserve evidence, 
and then report the facts and evidence to the approval authority.  It is the duty of the IO 
or board to thoroughly and impartially ascertain and consider the evidence on all sides 
of each issue, to comply with the instructions of the appointing authority, to make 
findings that are warranted by the evidence, and, where appropriate, to make 
recommendations to the approval authority that are consistent with the findings.


	b.  Paragraph 1-12 (Use of Results of Preliminary Inquiries, Administrative 
Investigations, and Boards of Officers in Adverse Administrative Actions) states when 
adverse administrative action is contemplated against a Soldier, including one 
designated as a respondent, based upon information obtained as a result of a 
preliminary inquiry, administrative investigation, or board of officers conducted pursuant 
to this regulation, the appropriate military authority must observe the following minimum 
safeguards before taking final action against the individual:

		(1)  Notify the Soldier in writing of the proposed adverse action and provide a 
copy, if not previously provided, of those parts of the findings and recommendations of 
the inquiry, investigation, or board and the supporting evidence gathered during the 
proceeding upon which the proposed adverse action is based.

		(2)  Give the Soldier a reasonable opportunity, no less than 10 days, to reply in 
writing and to submit rebuttal matters.

		(3)  Review and evaluate any matters submitted by the Soldier.

	c.  Chapter 5 (Administrative Investigations) states investigation procedures are 
used by a single IO, or by an investigation team consisting of an IO and one or more 
assistant IOs designated by the appointing authority to assist the IO in questioning 
witnesses, taking sworn statements, and otherwise facilitating evidence gathering.

	d.  Paragraph 5-2 (Procedure) states IOs may use whatever method they deem 
most efficient and effective for acquiring information.  An IO may divide the witnesses, 
issues, or evidentiary aspects of the inquiry among assistant IOs for individual 
investigation and development, holding no collective meeting until the Io is ready to 
review all the information collected.  Although witnesses may be called to present formal 
testimony, information may also be obtained by personal interview, correspondence, 
telephone inquiry, or other informal means.

	e.  Paragraph 5-3 (Interested Persons) states the IO may still make any relevant 
findings or recommendations, including those adverse to an individual or individuals.

	f.  Paragraph 5-4 (Right to Respond to Adverse Information) states the right to 
respond to adverse information is extended by this regulation only to field grade officers, 
because such findings or recommendations may be considered in future promotion 
boards that will consider those officers for promotion.  This does not require nor 
preclude approval authorities from extending the opportunity to any other individual who 
is the subject of adverse information in the report of proceedings.

4.  Army Regulation 135-381 (Incapacitation of Reserve Component Soldiers) 
prescribes policies and implements statutory authorities regarding incapacitation pay 
and allowance and reviews requirements on these entitlements for Reserve Component 
Soldiers.

	a.  Paragraph 1-10 (LOD Determination) states Regional Readiness Command 
commanders (for troop program unit Soldiers) must complete a DA Form 2173 within 
7 days of notification of the Soldier’s injury, illness, or disease for Soldiers incapacitated 
as a result of an injury, illness, or disease incurred or aggravated on active duty 
(including leave), on inactive duty training (IDT), or while traveling directly to or from 
IDT, absent clear and convincing evidence on the contrary.  Included in IDT is time 
spent remaining overnight immediately before the commencement of IDT, at or in the 
vicinity of the site of the IDT, if the site is outside reasonable commuting distance from 
the member’s residence (50 miles or 90 minutes driving time).  A Soldier may appeal an 
adverse LOD investigation determination to the appropriate appellate review authority 
under Army Regulation 600-8-4.

	b.  Section II (Terms) defines:

		(1)  LOD as a finding after all available information has been reviewed that 
determines an injury, illness, or disease was incurred or aggravated as a result of 
military duty not due to gross negligence or misconduct of the member.  This includes a 
Reserve Component member on IDT, funeral honors duty, traveling directly to or from 
such duty or training, or while remaining overnight, immediately before the 
commencement of or between successive periods of such duty.

		(2)  duty status as any period of active duty, funeral honors duty, or IDT; while 
traveling directly to or from the place at which funeral honors duty, or inactive duty is 
performed; while remaining overnight immediately before the commencement of IDT or 
between successive periods of IDT, at or in the vicinity of the site of the IDT, if the site is 
outside reasonable commuting distance of the member’s residence; and while 
remaining overnight at or in the vicinity of the place the funeral honors duty is to be 
performed immediately before serving such duty, if the place is outside of a reasonable 
commuting distance from the member’s residence.

FACTS:

1.  The applicant did not file within the 3-year time frame as provided in Title 10, 
U.S Code, section 1552(b); however, the ABCMR conducted a substantive review of 
this case and determined it is in the interest of justice to excuse the applicant's failure to 
timely file.




2.  The applicant states:

	a.  On 19 April 1998, his unit commander incorrectly determined that his motor 
vehicle accident incurred on his way home from Army National Guard drill (IDT) was 
NILOD.

	b.  He had an excellent line of communication and understanding with the 
staff sergeant (SSG) of Company C, 742th Engineer Battalion, Wisconsin Army National 
Guard, in Rhinelander, WI, who was known as "G."  On numerous occasions SSG G 
gave him verbal permission to leave drill early to resume his classes at St. Cloud State 
University.  After delivering some rations and supplies at a different unit in the area, he 
had been given permission by SSG G to go home as usual due to resuming his course 
work at school.

	b.  The commander of the unit decided to override and change the determination to 
insinuate that he was absent without leave by leaving early.  SSG G's prior approvals 
allowed him to leave early for months of drills and split his training which included the 
drill day on 19 April 1998.  He did not pursue this at the time that it happened, but now 
he believes his case needs to be reopened to have the determination changed.  It is 
obvious that he had the permission of his SSG.  He traveled to Rhinelander, WI, for the 
weekend drill and he was clearly having to travel home, which is in the LOD.

	c.  As far as he knows, there is no statute of limitations on an LOD determination 
correction.  Therefore, the information he has provided needs to be changed.

3.  His records contain a DA Form 2173 (Statement of Medical Examination and Duty 
Status), dated 17 May 1998, which states in:

	a.  Section I:

		(1)  he was admitted into Warsaw Hospital around 4 p.m. on 19 April 1998;

		(2)  his injuries included a mandibular compound fracture, avulsed teeth, and soft 
tissue lacerations;

		(3)  he was not under the influence of alcohol;

		(4)  he was mentally sound;

		(5)  his injury is not likely to result in a claim against the Government for future 
medical care; and

		(6)  his injuries were not incurred in the LOD.

	b.  Section II:

		(1)  he was absent without authority from 11:30 a.m. to 4:30 p.m. on 19 April 
1998;

		(2)  he was on IDT from 8 a.m. on 18 April 1998 to 4:30 p.m. on 19 April 1998;

		(3)  he delivered food rations to Company C (-), 724th Engineer Battalion, 
Tomahawk, WI, and noticed individuals going home for the day and thought he was 
done also.  He returned to Detachment 1, Company C, 724th Engineer Battalion, 
Rhinelander, WI, put his gear away, and left without notifying anyone.  He headed back 
to St. Cloud, MN, where he attends school and got into a vehicular accident on 
Highway 8 near Prentice, WI;

		(4)  formal LOD investigation required is marked "Yes"; and

		(5)  injury is considered to have been incurred in the LOD is marked "No."

4.  On 27 March 2002, he was honorably discharged from the Minnesota Army National 
Guard.  His National Guard Bureau Form 22 (Report of Separation and Record of 
Service) shows he was separated from Company B, 682nd Engineer Battalion, 
Hutchinson, MN, by reason of expiration of active status and assigned to the U.S. Army 
Reserve Control Group (Annual Training).  He completed 6 years of net service during 
this period.

BOARD DISCUSSION:

1.  The Board carefully considered the applicant’s request, supporting documents, 
evidence in the records, and regulatory requirements.  The Board noted the facts 
presented above.  The Board found insufficient evidence that there was no error or 
injustice in the applicant’s LOD determination.

2.  After reviewing the application and all supporting documents, the Board found that 
relief is not warranted.



BOARD VOTE:

Mbr 1	Mbr 2	Mbr 3

:	:	:	GRANT FULL RELIEF

:	:	:	GRANT PARTIAL RELIEF

:	:	:	GRANT FORMAL HEARING

:	:	:	:	DENY APPLICATION


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.
	 
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.


ADMINISTRATIVE NOTE(S):  not applicable.

//NOTHING FOLLOWS//
ABCMR Record of Proceedings (cont)	AR20170017112


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