IN THE CASE OF:	  

		BOARD DATE:	  22 February 2011

		DOCKET NUMBER:  AR20100011923 


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, the widow of the deceased former service member (FSM), requests correction of the FSM's military records to show his death was "in the line of duty."

2.  The applicant states the FSM was a very dedicated Soldier who volunteered to serve in both Bosnia and Iraq.  When the FSM returned home from Iraq, he was not the same person.  He had night terrors, trouble sleeping, feelings of impending doom, and needed to get back to his men in Iraq.  The FSM never reintegrated back into our society.  She implies that he was suffering from post-traumatic stress disorder (PTSD).

3.  The applicant states that one of the FSM's goals was to become full-time in the Army National Guard.  He became a unit commander, but he had to travel more than 3 hours from home so he stayed at the unit and only came home on weekends.  This affected the family relationship.

4.  The applicant states she believes the FSM's suicide was a direct result of the back-to-back deployments and his experiences in Iraq.  She asks for a determination of "in the line of duty" for the FSM.

5.  The applicant provides copies of two DD Forms 1300 (Report of Casualty), dated 13 June 2005 and 27 October 2005; three DD Forms 214 (Certificate of Release or Discharge from Active Duty) for the periods ending 20 August 1987, 8 October 2002, and 20 March 2004; a DA Form 2-1 (Personnel Qualification Record – Part II); and approximately 120 additional documents from the FSM's service records and the Department of Veterans Affairs (VA).

CONSIDERATION OF EVIDENCE:

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.  While it appears the applicant did not file within the time frame provided in the statute of limitations, the ABCMR has elected to conduct a substantive review of this case and, only to the extent relief, if any, is granted, has determined it is in the interest of justice to excuse the applicant's failure to timely file.  In all other respects, there are insufficient bases to waive the statute of limitations for timely filing.

2.  Item 5 (Oversea Service) of the FSM's DA Form 2-1 shows he was deployed to Bosnia from 12 March 2002 to 12 September 2002 and to Kuwait/Iraq from 11 February 2003 to 11 February 2004.

3.  A DD Form 1300, dated 13 June 2005, reports that:

	a.  the FSM's status was "active duty support" beginning on 1 September 2004,

	b.  the FSM was a non-hostile casualty,

	c.  the FSM died on 12 June 2005, and

	d.  the circumstances of the FSM's death were pending.

4.  A DA Form 2173 (Statement of Medical Examination and Duty Status), dated 15 July 2005, reports that the FSM was dead on arrival at the civilian county hospital as the result of a self-inflicted gunshot wound.  A blood alcohol test was completed and the medical examiner was of the opinion that the FSM had not been under the influence of alcohol or drugs.

5.  A DD Form 261 (Report of Investigation – Line of Duty and Misconduct Status), dated 15 July 2005, reports that the FSM died on 12 June 2005 as the result of a self-inflicted gunshot wound.  The findings were "not in line of duty – due to own misconduct."  The findings were approved on 24 August 2005.

6.  A DD Form 1300, dated 27 October 2005, reports that the FSM died of a self-inflicted gunshot wound on 12 June 2005.

7.  In a VA Rating Decision, dated 1 November 2005, the FSM was found to have been mentally unsound at the time of his suicide.  The act of suicide was considered to have resulted from mental unsoundness and was the basis for a finding of service connection.  Any reasonable doubt in this case was resolved favorably to support this finding.

8.  In the processing of this case, an advisory opinion was obtained from the Chief, Personnel Policy Division, National Guard Bureau, Washington, DC.  The opinion stated that based on the evidence presented by the State and the Judge Advocate General for the State of Indiana, there is no medical evidence indicating the FSM suffered any effects of PTSD or other post-deployment issues prior to his death.  At the time of his death, the FSM was under no unusual work-related stress.

	a.  The FSM completed the post-deployment health assessments upon return from both mobilizations and never indicated any issues.  He personally indicated he had no medical or behavioral health issues on all related medical documents.

	b.  The line-of-duty investigation concluded the FSM's death was more likely caused by an alleged affair between his wife and a third party and was unrelated to the Soldier's military responsibilities.

	c.  The state concurred with the advisory opinion.

9.  On 14 December 2010, a copy of the advisory opinion was sent to the applicant for her information and opportunity to rebut.  No response was received.

10.  Army Regulation 600-8-4 (Line of Duty Policy, Procedures, and Investigations) provides:

	a.  that line-of-duty investigations of suicide or attempted suicide must determine whether the Soldier was mentally sound at the time of the incident;

	b.  that the question of sanity can only be resolved by inquiring into and obtaining evidence of the Soldier's social background, actions, and moods immediately prior to the suicide or suicide attempt; troubles that might have motivated the incident; and examinations or counseling by specially experienced or trained persons;

	c.  that in all cases of suicide or suicide attempts, a mental health officer will review the evidence collected to determine the bio-psychosocial factors that contributed to the Soldier's desire to end his or her life;

	d.  that the mental health officer will render an opinion as to the probable causes of the self-destructive behavior and whether the Soldier was mentally sound at the time of the incident; and

	e.  that an injury intentionally self-inflicted when mental soundness existed at the time should be considered misconduct.

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends the FSM's line-of-duty determination should be changed to show his death was "in the line of duty" because he was suffering from PSTD.

2.  The evidence of record clearly shows the applicant died of a self-inflicted gunshot wound.  The subsequent investigation resulted in a determination that the FSM's death was not in the line of duty due to his own misconduct.

3.  There is no available evidence showing that the FSM's frame of mind at the time of his suicide was directly related to PTSD resulting from his previous duty in Bosnia and/or Iraq, or from any other mental disorder which prevented him from appreciating or controlling his actions that resulted in his death.

4.  In view of the above, the applicant's request should be denied.

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 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)                                         AR20100011923



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ABCMR Record of Proceedings (cont)                                         AR20100011923



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