ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

RECORD OF PROCEEDINGS


	IN THE CASE OF:  

	BOARD DATE:  30 September 2019

	DOCKET NUMBER:  AR20180014758


APPLICANT REQUESTS: in effect, the line of duty (LD) determination for a gunshot 
wound to his abdomen be changed from not in LD to in line of duty (ILD).

APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: 

*	DD Form 149 (Application for Correction of Military Record)
*	Personal statement
*	DD Form 214 (Report of Separation from Active Duty)
*	Notification of Hearing Letter
*	DA Form 1574 (Report of Proceedings by Investigating Officer)
*	DD Form 261 (Report of Investigation)
*	Standard Form 502 (Narrative Summary)

FACTS:

1.  The applicant did not file within the three year time frame provided in Title 10, 
United States Code (USC), section 1552(b); however, the Army Board for Correction 
of Military Records (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 29 September 1972, he was shot in the abdomen by a Military Policeman 
(MP) wearing plain clothes.  He never heard the MP identify himself when the MP 
approached him and two other people who were talking outside of the bowling alley.  
Someone yelled the MP had a gun and he ran because he was in fear for his life.  
When the MP tackled him, he tried to fight him off because he still did not know who 
the MP was.  The MP shot him and he did not have a weapon.  He did not try to hurt 
the MP.  He was just trying to get to safety.

     b.  After he was shot, they found two marijuana cigarettes in his pocket.  While he 
knows it was wrong to have marijuana, it was not the cause of his injuries.  He was 
not using marijuana when the MP walked up.  The MP never knew he had marijuana 
in his possession until after he shot him.  He still does not know why the MP 
approach them and chased him.

     c.  On 13 October 1972, a Notice of Hearing was issued for a hearing on 
18 October 1972.  He was still in the hospital when the notice was sent.  He was still 
in the hospital on the date of the hearing.  He was not discharged from the hospital 
following treatment of his gunshot wound until 20 November 1972.  He was denied 
the opportunity to be heard.  The Report of Proceedings found he immediately fled 
the scene, which was true, but the report found he used bodily force and made 
threatening gestures, which was not true.  The report made recommendations which 
recognized the MP acted inappropriately in shooting an unarmed man.  The report 
recommended MP investigators receive additional instruction in the use of fire arms 
and MP investigators work in pairs.  

3.  Medical records show the applicant received a gunshot wound to the abdomen 
on 29 September 1972.  He was discharged from the hospital on 20 November 
1972.

4.  On 18 October 1972, a Report of Proceedings by Investigating Officer, 
recommended disciplinary action be taken against the applicant for willful 
misconduct in resisting apprehension by lawful authority.  The Report of 
Proceedings also recommended MP investigators receive additional instruction in 
the use of firearms during the apprehension of a suspect, but did not recommend 
that any action be taken against the MP investigator who shot the applicant in the 
abdomen.  

5.  On 16 November 1972, a Report of Investigation found the applicant’s abdomen 
wound was caused by intentional misconduct or neglect.  It was found to be not in 
LD.

6.  On 15 March 1974, the applicant was honorably released from active duty.

7.  Army Regulation 600-8-4 (Line of Duty Policy, Procedures, and Investigations) 
provides that a line of duty investigation must be conducted in all cases of injury not 
as a result of enemy action.  It also provides it is essential to arrive at a 
determination as to 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 investigation may or may not be required to make this determination.  It 
provides that any physical condition having its inception in line of duty during one 
period of service or authorized training in any of the Armed Forces which recurs or is 
aggravated during later service or authorized training, regardless of the time 
between, should be in line of duty.  Paragraph 2-6 (Standards applicable to LD 
determinations) of Army Regulation 600-8-4 states decisions on LD determinations 
will be made in accordance with the standards set forth in this regulation


BOARD DISCUSSION:

1.  After reviewing the application and all supporting documents, the Board found the 
requested relief is warranted.

2.  The Board agreed that the MP Investigator who shot the applicant used 
potentially lethal force that was entirely unjustified by the situation described in the 
record.  In light of that fact, the finding that the applicant's wound was not in LD due 
to his own misconduct is an injustice that should be remedied by correcting his 
record to show the injury was in LD.  


BOARD VOTE:

Mbr 1	Mbr 2	Mbr 3

XX:	XX:	XX:	GRANT FULL RELIEF

:	:	:	GRANT PARTIAL RELIEF

:	:	:	GRANT FORMAL HEARING

:	:	:	DENY APPLICATION


BOARD DETERMINATION/RECOMMENDATION:

The Board determined the evidence presented is sufficient to warrant a 
recommendation for relief.  As a result, the Board recommends that all Department 
of the Army records of the individual concerned be corrected by showing the injury 
he received on 29 September 1972 was incurred in the line of duty.

	  
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.



?
REFERENCES:

1.  Title 10, USC, section 1552(b), provides that applications for correction of military 
records must be filed within three years after discovery of the alleged error or 
injustice.  This provision of law also allows the ABCMR to excuse an applicant's 
failure to timely file within the three-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 provides that a line of duty investigation must be 
conducted in all cases of injury not as a result of enemy action.  It also provides it is 
essential to arrive at a determination as to 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 investigation may or may not be required to make 
this determination.  It provides that any physical condition having its inception in line 
of duty during one period of service or authorized training in any of the Armed 
Forces which recurs or is aggravated during later service or authorized training, 
regardless of the time between, should be in line of duty.  Paragraph 2-6 (Standards 
applicable to LD determinations) of Army Regulation 600-8-4 states decisions on LD 
determinations will be made in accordance with the standards set forth in this 
regulation.

     a.  Injury, disease, or death proximately caused by the Soldier’s intentional 
misconduct or willful negligence is "not in LD-due to own misconduct." Simple or 
ordinary negligence or carelessness, standing alone, does not constitute
misconduct.

     b.  An injury, disease, or death is presumed to be in LD unless refuted by 
substantial evidence contained in the investigation.

     c.  LD 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:

          (1)  All direct evidence, that is, evidence based on actual knowledge or 
observation of witnesses; and/or

          (2) 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.

     d.  No distinction will be made between the relative value of direct and indirect 
evidence.  In some cases, direct evidence may be more convincing than indirect 
evidence.  In other cases, indirect evidence may be more convincing than the 
statement of an eyewitness.  The weight of the evidence is not determined by the 
number of witnesses or exhibits but by the IO and higher authorities accomplishing 
the following actions:

          (1)  Considering all the evidence.

          (2)  Evaluating factors such as a witness’s behavior, opportunity for 
knowledge, information possessed, ability to recall and relate events, and 
relationship to the matter to be decided.

          (3)  Considering other signs of truth.


NOTHING FOLLOWS

ABCMR Record of Proceedings (cont)	 AR20180014758
	
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