IN THE CASE OF:	 

		BOARD DATE:	  01 June 2010

		DOCKET NUMBER:  AR20090019265


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 the casualty type (item 4a) on the DD Form 1300 (Report of Casualty) of her deceased husband, hereafter referred to as the former service member (FSM), be changed from "nonhostile" to "hostile."

2.  The applicant states the FSM was injured in Afghanistan, an active war zone. He was a passenger in a humvee (High Mobility Multipurpose Wheeled Vehicle) that was involved in a collision with an Afghan civilian truck.  He was gravely injured and ultimately died from his injuries.  The type of casualty was listed as nonhostile.

3.  The applicant provides:

* DD Form 1300, prepared on 30 August 2006
* DA Form 5841-R (Power of Attorney)
* Durable Power of Attorney
* Florida Certificate of Death

CONSIDERATION OF EVIDENCE:

1.  The FSM was a sergeant first class in the Florida Army National Guard (FLARNG).  On or about 1 April 2005, he deployed with his unit, Troop E, 153rd Cavalry, to Afghanistan.

2.  On 1 April 2006, the FSM was riding in a convoy on Main Supply Route (MSR) Battle between Kabul and Bagram Air Base when the vehicle in which he was a passenger collided with a truck driven by an Afghan civilian.  The applicant was gravely injured.  He was treated by medics at the scene and transported to medical facilities at Bagram Air Base.  He eventually was evacuated back to the United States and admitted to the James A. Haley Veterans Hospital, Tampa, FL.  On 3 August 2006, he died from sequelae of blunt force trauma to his head.

3.  The incident was investigated by the military police and determined to be an accident.  The Afghan civilian was determined not to be an enemy combatant, but merely a local national truck driver.  The FSM's chain of command also directed an Army Regulation (AR) 15-6 investigation.  That investigation likewise determined the incident to be an accident; however, DA Form 1574 (Report of Proceedings by Investigating Officer/Board of Officers) was not available for review.

4.  A DA Form 2173 (Statement of Medical Examination and Duty Status) was completed through Section 1 (To Be Completed by Attending Physician or Hospital Patient Administrator).  Because the FSM died as a result of injuries sustained on active duty, his death was considered to be in the line of duty.

5.  On 21 August 2006, the US Army Human Resources Command (HRC), Alexandria, VA issued a DD Form 1300.  That form, in item 4a, lists the FSM's casualty type as "Nonhostile" as a result of an accident.

6.  Army Regulation 15-6 (Procedures for Investigating Officers and Boards of Officers) establishes procedures for investigations and boards of officers not specifically authorized by any other directive.  Results of investigations are reported on DA Form 1574.

7.  Army Regulation 600-8-4 (Line of Duty Policy, Procedures, and Investigations) prescribes policies and procedures for investigating the circumstances of disease, injury, or death of a soldier. It provides standards and considerations used in determining line of duty (LD) status.  It states for purpose of rendering an LD determination in death cases, a Soldier's death will be considered to have occurred in LD unless the death occurred while the Soldier was not serving on AD, or was the result of the Soldier's intentional misconduct or willful negligence, or the death occurred during a period of unauthorized absence.

8.  Army Regulation 600-8-1 (Army Casualty Program) prescribes the policies and mandated operating tasks, responsibilities, and procedures for casualty operations functions of the military personnel system.  It provides for three casualty types:

   a.  Hostile Casualty – a person who is the victim of a terrorist activity or who becomes a casualty "in action."  "In Action" characterizes the casualty as having been the direct result of hostile action, sustained in combat or relating thereto, or sustained going to or returning from a combat mission provided that the occurrence was directly related to hostile action.  Included are persons killed or wounded mistakenly or accidentally by friendly fire directed at a hostile force or what is thought to be a hostile force.  However, not to be considered as sustained in action and not to be interpreted as hostile casualties are injuries due to elements, self-inflicted wounds and, except in unusual cases, wounds or death inflicted by a friendly force while the individual is in AWOL, deserter, or dropped from the rolls status or is voluntarily absent from a place of duty. 

   b.  Nonhostile Casualty – a person who becomes a casualty due to circumstances not directly attributable to hostile action or terrorist activity. Casualties due to the elements, self-inflicted wounds, and combat fatigue are non-hostile casualties.

   c.  Pending – a person whose casualty circumstances are insufficient to make a selection between "hostile" and "non-hostile."  This type must be updated to "hostile" or "non-hostile" upon receiving sufficient information.

DISCUSSION AND CONCLUSIONS:

1.  The applicant requests the casualty type assigned for the FSM be changed from "nonhostile" to "hostile."

2.  The facts of the FSM's death are that he was a FLARNG Soldier serving on active duty in Afghanistan.  On 1 April 2006, he was involved in a motor vehicle accident while en route from Kabul to Bagram Air Base.  He suffered head injuries and died as a result of those injuries on 3 August 2006.

3.  The incident in which the FSM was injured was investigated on several levels and always determined to be an accident.  His death was described as resulting from nonhostile causes because it was not the "direct result of hostile action, sustained in combat."

4.  In order to justify correction of a military record, the applicant must show to the satisfaction of the Board, or it must otherwise satisfactorily appear, that the record is in error or unjust.  The applicant has failed to submit evidence that would satisfy this requirement.



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)                                         AR20090019265





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ABCMR Record of Proceedings (cont)                                         AR20090019265



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