IN THE CASE OF:	  

		BOARD DATE:	  15 July 2010

		DOCKET NUMBER:  AR20090021983 


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, in effect, the DD Form 261 (Report of Investigation-Line of Duty and Misconduct Status), dated 5 January 2009, pertaining to her deceased husband, a former service member (FSM), be corrected to show his death was in "Line of Duty." 

2.  The applicant states that she does not excuse her husband's behavior; however, she feels she and her family suffered more than enough.  Their daughter will always have the stigma that her dad died on her birthday.  The FSM served his country proudly and deployed on three different occasions.  He was loved by everyone and served his country to the best of his ability.  She adds:

	a.  Her husband appeared to have suffered from post traumatic stress disorder subsequent to his return from Iraq in 2006.  He was jumpy, moody, stressed, and easily agitated.  He told family members that he did not always wear his seatbelt in Iraq for fear of not being able to get out of a vehicle during an explosion.  His situation became worse emotionally when he returned in 2007 but he brushed aside suggestions of counseling.  He ultimately got an assignment close to home and he was very excited; however, his record was flagged due to an altercation with his unit first sergeant which dragged on for months.  He also experienced several other medical issues ranging from adjustment disorder, mild depression, as well as pain in his arm, neck, and shoulder. 

	b.  He loved his country and he probably thought his medical conditions were under control.  As she looks back on the situation and as she reviews his medical records, she does not believe his death resulted from willful misconduct on his part.  She is not making excuses for his behavior; however, he was on medications including Vicodin and there may have been a possibility of failure in the monitoring of his medications and the addictive effects and the alcohol use.  She knows he made a fatal mistake and now she and her family are suffering the greatest loss of their life.  She feels the military is turning its back on her and her family after the death of her husband.  She asks that the line of duty determination be reconsidered in honor of her husband.  She does not want his one-time lack of judgment to tarnish his 22 year military career.  

3.  The applicant provides the following documents:

* A copy of her marriage license, dated 2 December 1989
* A copy of the FSM's death certificate, dated 30 January 2009
* A copy of a letter, dated 29 June 2009, from the U.S. Army Human Resources Command, Alexandria, VA
* A copy of the FSM's DA Form 2166-8 (Noncommissioned Officer (NCO) Evaluation Report) for the period March 2001 through February 2002
* Copies of three DA Forms 638 (Recommendation for Award)
* A copy of the FSM's Obituary
* Two character reference letters
* Copies of the FSM's Department of Veterans Affairs electronic medical records, printed on 5 August 2009

CONSIDERATION OF EVIDENCE:

1.  The FSM's records show he was born on 19 November 1968 and enlisted in the Regular Army (RA) on 17 September 1986.  He held military occupational specialty (MOS) 92Y (Unit Supply Specialist) and served through multiple reenlistments in the RA.

2.  He was honorably discharged on 25 April 1995 due to reduction in force with entitlement to separation pay and subsequently enlisted in the U.S. Army Reserve (USAR).  He held MOS 95B (Military Police), served through multiple reenlistments, and attained the rank/grade of sergeant first class/E-7.  

3.  He entered active duty on 9 May 1999 in an Active Guard Reserve status and he was assigned to the 340th Military Police Battalion, Fort Totten, NY.  

4.  On 30 January 2009, the FSM was involved in a one-vehicle accident.  He was driving his privately owned vehicle when he struck the center rail with the front end of his vehicle.  Upon impact, his vehicle rolled into its passenger side ejecting him out of the passenger window.  He was pronounced deceased by an emergency medical technician (EMT) and he was taken by ambulance to Nassau University Medical Center, New York.  The New York State Trooper's preliminary investigation indicated excessive speed was a factor. 

5.  On 30 January 2009, an autopsy was conducted by the Deputy Chief Medical Examiner at Nassau County, NY, who determined the cause of death as blunt force injury with fracture of the skull and contusions of the brain.  

6.  On 21 February 2009, an investigating officer (IO) was appointed to perform a line of duty (LD) investigation pertaining to the FSM's death.  

7.  Item 10 (g) (Basis for Findings) of the DD Form 261 indicated that the FSM was involved in a vehicle accident.  His vehicle travelled into the right shoulder and then veered left across three lanes striking the center guard rail with the front end.  Upon impact the vehicle rolled onto its side and the FSM was ejected out of the passenger window.  He was pronounced deceased at the scene by EMT personnel.  Cause of death was blunt force injury with fracture to the skull and contusions of the brain. 

8.  The IO received a copy of the autopsy and toxicology report that was mailed from the applicant to the 310th Military Police Battalion at the IO's request.  The toxicology report described the following compounds in the blood specimen:  017g% Benzoylecgonine 0.28mg/L, Ecgonine Methyl Ester 0.06 mg/L (both substances found in cocaine).  Blood samples detected Chlorpheniramine, Dextromethorphan, and Diphenhydramine (both the latter at therapeutic concentrations).  Brain samples detected Benzoylecgonin 0.18mg/L, Cocaine 0.04 mg/Kg, and Ecgonine Methyl Ester 0.08 mg/Kg.  Alcohol, cocaine, and compounds found in cold medications were detected in specimen samples taken by the medical examiner.  

9.  An examination of negligence (Formal LD) was conducted.  The State Trooper indicated excessive speed was a factor in the accident and witnesses observed the FSM's vehicle travelling at an excessive speed.  A determination was made that the fatal accident occurred due to the FSM's own misconduct through the operation of a motor vehicle while under the influence of alcohol and cocaine and negligence due to failure to wear a seatbelt.  The reports substantiated a determination of not in line of duty - due to own misconduct based on the rules in Army Regulation 600-8-4 (Line of Duty Policy, procedures and Investigations).

10.  On 17 May 2009, the appointing authority approved the IO's findings.

11.  On 4 June 2009, a senior military attorney reviewed the formal LD investigation and concluded that it was legally sufficient.
12.  On 4 June 2009, the Director, Military Human Resources, Fort Meade, MD, approved a finding of "Not in Line of Duty: Due to Own Misconduct" on behalf of the Secretary of the Army.

13.  The applicant submitted the following documents:

	a.  A copy of a letter, dated 29 June 2009, from USAHRC advising her of her right to appeal the LD finding. 

	b.  A copy of the FSM's DA Form 2166-8 for the period March 2001 through February 2002 showing he was rated as among the best with superior overall potential.

	c.  Copies of three DA Forms 638 showing the FSM was awarded the Meritorious Service Medal and two awards of the Army Commendation Medal.

	d.  A copy of the FSM's obituary.

	f.  A character reference letter, dated 1 August 2009, from one of the FSM's friends who describes him as the epitome of a great family man, a hard worker, a leader, and an intelligent and compassionate Soldier. 

	g.  An undated character reference letter from a sergeant major who worked with the FSM.  He describes him as a true leader and NCO whom he loved serving with and that his love of his family, country, and the military is unmatched.

	h.  Copies of the FSM's DVA electronic medical records with selected areas, dates, medications, tests, and other selected areas highlighted.

14.  Army Regulation 600-8-4 prescribes policies, procedures, and mandated tasks governing line of duty determinations of Soldiers who die or sustain certain injuries, diseases, or illnesses.  

	a.  Paragraph 2-6c states 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 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 4-10b states an injury incurred as the "proximate result" of prior and specific voluntary intoxication is incurred as 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 the Soldier’s physical or mental faculties were impaired due to intoxication at the time of the injury, the extent of the impairment, and that the impairment was a proximate cause of the injury. 

	c.  Paragraph 4-13c states that 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 was the result of the Soldier’s intentional misconduct or willful negligence.   

	d.  Section II defines simple negligence as the failure to exercise that degree of care which a similarly situated person of ordinary prudence usually takes in the same or similar circumstances, taking into consideration the age, maturity of judgment, experience, education, and training of the Soldier.  

	e.  Section II defines 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.  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. 

	f.  Paragraph 4-14 states if the subject matter of the investigation involves any motor vehicle accident, the following facts are important and should be addressed, if applicable: Speed of vehicle involved, as evidenced by testimony of witnesses, skid marks, condition of roads, and the damage to the vehicle; road factors, including all road characteristics, natural obstructions to the driver’s vision, and traffic signs; other vehicles, including any part played by them in creating the conditions that resulted in the accident; traffic conditions at the scene of the accident and their effect on the accident; traffic laws and regulations in force pertinent to the accident, including speed limits and required safety devices; light and weather conditions and their effect on driving conditions; mechanical condition of the vehicles involved; physical condition of the driver or drivers, including sobriety, fatigue, and exhaustion, and the effect of their physical condition on the accident.

	g.  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.  

	h.  Appendix B, Rule 1 states injury, disease, or death directly caused by the individual’s misconduct or willful negligence is not in line of duty.  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 line of duty; and (2) whether it was due to 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 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.

15.  Army Regulation 15-185 governs the operation of the Army Board for Correction of Military Records (ABCMR).  Paragraph 2-9 states that the ABCMR begins its consideration of each case with the presumption of administrative regularity.  The applicant has the burden of proving an error or injustice by a preponderance of the evidence.

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends the DD Form 261 dated 5 January 2009, pertaining to the FSM should be corrected his death was in "Line of Duty." 

2.  The evidence of records shows the FSM was involved in a vehicle accident that resulted in his death.  A police report coupled with witness statements determined excessive speed was a factor in the accident and a subsequent toxicology report supplementing the autopsy report determined the presence of an over-the-legal-limit level of alcohol as well as recent cocaine use. 

3.  A formal LD was conducted by an IO who examined all the evidence, reviewed the facts of the operator's speeding, failure to wear a seatbelt, intoxication, and concluded the FSM's misconduct was the proximate cause of this tragic accident.  This conclusion, reviewed for legal sufficiency, that the misconduct was sufficient to characterize his death as not in line of duty was supported by the findings.  All requirements of law and regulation were met and the FSM's rights appear to have been fully protected throughout the investigation. There is neither an error nor an injustice.

4.  The FSM's honorable peacetime and wartime service, his love of country, and achievements over the years are noted.  Additionally, his post-deployment stress is also noted.  However, the ABCMR does not correct records for the purpose of establishing entitlements to other programs or benefits. 

5.  In order to justify correction of a military record, the applicant must show, or it must otherwise satisfactorily appear, that the record is in error or unjust.  The applicant did not submit evidence that would satisfy this requirement.  Therefore, there is insufficient evidence to change the LD determination.

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)                                         AR20090021983



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ABCMR Record of Proceedings (cont)                                         AR20090021983



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