IN THE CASE OF:	  

		BOARD DATE:	        28 April 2009

		DOCKET NUMBER:  AR20080017904 


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, as the widow of a deceased former service member (FSM), requests that the final determination in her late husband's Line of Duty (LOD) Determination be changed to "In the line of duty."

2.  The applicant states, in effect, that the FSM suffered from Post Traumatic Stress Disorder (PTSD) from his first tour in Iraq and that fellow Soldiers made the chain of command aware that help was needed but this was disregarded.  She contends that the FSM's death would have been prevented if the request for help was not disregarded.

3.  In a letter to the Department of Veterans Affairs (DVA), the applicant states, in effect, that the FSM injured his back in training and that he was medically non-deployable as of October 2003.  She indicates that, on 10 October 2003, he was deployed to Iraq and his back continued to be a painful issue.  When he returned home from his first deployment he had many psychological problems and his 2004 post-deployment health assessment shows that he had problems psychologically and that he would be referred to a psychologist.  She contends that he was prescribed anti-depressants but he did not take his medication regularly which affected his personality.  She states that their relationship and family life suffered and that when the FSM was getting ready to deploy for a second tour in Iraq he was psychologically no different than the day he returned home from his first tour.  She indicates that weeks before his second deployment 
he was seen at the Behavioral Health Services and he reported that he was 
having problems with sleep, dreams, and nightmares along with irritability.  She 
claims that her husband had PTSD and this was mentioned several times throughout the U. S Army Criminal Investigation Command (also known as CID) report.  She also states that her husband needed help, that just days before he died he filled out another post-deployment health assessment, and that once again his answers reflected a psychiatric consultation was needed.           

4.  The applicant further states that although her husband had chronic medical problems, in addition to PTSD, his death could have been prevented.  She points out that according to the final CID report "Further investigation determined
LTC _____ and SFC _____ committed the offenses of Misprision of a Serious Offense and Dereliction of Duty, when they failed to take appropriate disciplinary action as leaders upon notification that certain [S]oldiers assigned to 10th CSH [Combat Support Hospital] were using Propofol and Fentanyl without valid prescriptions."  She points out that upon review of ten different statements for the CID investigation it was shown that "Dereliction of Duty" was indeed present.  She indicates that Soldiers went to the chain of command and reported the drug use weeks prior to her husband's death and nothing was done.     

5.  The applicant points out that in an investigation report, dated 29 September 2006, it stated that "SPC M_____ admitted he injected Sgt [FSM's last name]."  She claims that the original report was that the specialist did not use Propofol the night of the incident and it was later found that this was not the truth.  According to the investigation report the specialist gave her husband a lethal dosage of Propofol.  She states that another statement provided by a lieutenant colonel states "this was not a suicide as it was being talked about but that it was most likely a homicide or an accidental overdose."  She contends that it does not seem that this information was thoroughly investigated and that if the specialist injected her husband with a lethal dosage of Propofol it would nearly be impossible for her husband to have injected the specialist with a dose as well.  She further states that according to the Admission and Coding sheet of the CID report it was found that her husband's death was not a battle injury but it was in the line of duty.  She concludes that it is possible that her husband did not inject himself with the lethal dosage of Propofol, and that if he did inject himself, which she doubts, his death could have been prevented.  She states that the chain of command for the 10th CSH was aware of the drug abuse occurring and did nothing, that the FSM's chain of command was aware of his PTSD rolling over from his first deployment, and that they deployed him again and did nothing to treat his PTSD.    

6.  The applicant provides numerous emails; service personnel records; Survivor Benefit Plan documentation; service medical records; a Final CID Report of Investigation; and numerous sworn statements in support of her application. 

CONSIDERATION OF EVIDENCE:

1.  The FSM enlisted in the Regular Army on 25 October 2002 for a period of 
4 years.  He trained as a health care specialist and served in Iraq during the period 2003 to 2004.  

2.  The applicant provided a service medical record, dated 22 September 2005, which states, in pertinent part, that the FSM was referred for Level II screening as a result of the following psychosocial concerns (dreams and irritability) identified through Level I screening.  The record states that the FSM was being treated for depression and that he was "deployable."  A referral to psychiatry was scheduled for 4 October 2005.

3.  The FSM deployed a second time to Iraq on 18 October 2005.  He was promoted to sergeant on 1 April 2006.   

4.  On 18 September 2006, the FSM died in Iraq. 

5.  A Final CID Report of Investigation, dated 22 September 2007, states, in pertinent part, that the investigation determined that the FSM committed the offenses of larceny of Government property and wrongful possession and use of opiates, when he stole Propofol, a medical narcotic, from the 10th CSH medical supply closet and subsequently injected himself, causing his death.  An autopsy determined the cause of death as multiple drug toxicity and manner of death was accidental.  The investigation also determined that a specialist committed the offenses of wrongful possession and use of opiates, when he admitted to injecting himself with Propofol.  Further investigation determined that a lieutenant colonel and sergeant first class committed the offenses of misprision of a serious offense and dereliction of duty, when they failed to take appropriate disciplinary action as leaders upon notification that certain Soldiers assigned to the 10th CSH were using Propofol and Fentanyl without valid prescriptions.

6.  A memorandum, dated 5 February 2008, from the Director, Casualty and Mortuary Affairs Operations Center, U.S. Army Human Resources Command, Alexandria, Virginia states, in pertinent part, that after a thorough review of the 
Final CID Report of Investigation in the FSM's case, that office determined that the FSM was "NOT IN THE LINE OF DUTY - DUE TO OWN MISCONDUCT" at the time of his death due to multiple drug toxicity.  This memorandum points out that paragraph 4-2 of Army Regulation 600-8-4 (Line of Duty Policy, Procedures, and Investigations) states that the summary of any report by Army CID agents may be used as evidence in an LOD investigation, if necessary, to complete the 
investigation.  In this case, the Final CID Report was used to make the 
determination.  Based on the CID report probable cause was established that the FSM did commit the following offenses:  larceny of Government property, wrongful possession of opiates, and the wrongful use of opiates.  Army Regulation 600-8-4, appendix B, rule 9 states that injury or death because of erratic or reckless conduct, without regard for personal safety or the safety of others, is not in the line of duty; it is 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.  Additionally, Army Regulation
600-8-4, appendix B, rule 3 states that injury, disease, or death that results in incapacitation because of the use of alcohol or other drugs is not in the line of duty; it is due to misconduct. 

7.  The memorandum also states that according to the Final CID report and the enclosed statements, the FSM stole a narcotic from the hospital (Propofol) and injected it causing his death.  The autopsy determined the manner of death was accidental and the toxicology screening indicated that he was positive for Propofol.  Since the Final CID report of investigation clearly established misconduct, the FSM's death was found to be not in the line of duty due to own misconduct. 

8.  A legal opinion from the Command Judge Advocate's Office at the U.S. Army Human Resources Command opined that the determination of "NOT IN THE LINE OF DUTY - DUE TO OWN MISCONDUCT" was legally valid.  

9.  An LOD determination, dated 5 February 2008, from the Director, Casualty and Mortuary Affairs Operations Center, U.S. Army Human Resources Command, Alexandria, states, "In the case of SGT [FSM's name and Social Security Number], who died in Baghdad, Iraq on 18 September 2006 as the result of multiple drug toxicity.  This office made a Line of Duty Determination that SGT [FSM's last name] was "NOT IN THE LINE OF DUTY - DUE TO OWN MISCONDUCT" at the time of his death."   

10.  In support of her claim, the applicant provided service medical records which show the FSM was treated for lower back pain.  Service medical records also show that in August 2006 the FSM was diagnosed with depression and marital 
problems.  The applicant also provided numerous sworn statements from Soldiers attesting that they knew Soldiers in the 10th CSH were using Propofol and Fentanyl. 
11.  Appendix B, Rule 3 of Army Regulation 600-8-4 states that 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.  Any wrongfully drug-induced actions that cause injury, disease, or death are misconduct.  That the Soldier may have had a pre-existing physical condition that caused increased susceptibility to the effects of the drug does not excuse the misconduct.
12.  Appendix B, Rule 9 of Army Regulation 600-8-4 states that injury or death because of erratic or reckless conduct, without regard for personal safety or the safety of others, is not in the line of duty.  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.

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends that the FSM suffered from PTSD from his first tour in Iraq.  However, he was never diagnosed with PTSD, though he was treated for depression and sleep issues.

2.  The evidence of record does not support the applicant's contention that the FSM was medically non-deployable as of October 2003.  The applicant provided medical evidence of record, dated 22 September 2005, which states that he was deployable.  

3.  The applicant's contention that the FSM's death could have been prevented was considered.  However, based on the CID report probable cause was established that the FSM did commit  larceny of Government property, wrongful possession of opiates, and the wrongful use of opiates.  According to the Final CID report and enclosed statements, the FSM stole a narcotic from the hospital (Propofol) and injected himself, causing his death.  The autopsy determined the manner of death was accidental and the toxicology screening indicated that he was positive for Propofol.  Since the governing regulation states that any wrongfully drug-induced actions that cause injury, disease, or death are misconduct, and the Final CID report of investigation clearly established misconduct, the FSM was found to be not in the line of duty, due to own misconduct.  Without substantiating evidence, it appears the investigating officer and approval authorities made a proper LOD determination.   Regrettably, there is an insufficient basis for granting the applicant’s request.  






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)                                         AR20080017904



3


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1

ABCMR Record of Proceedings (cont)                                         AR20080017904



2


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1