IN THE CASE OF:	  

		BOARD DATE:	  11 August 2011

		DOCKET NUMBER:  AR20110002715 


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 (LOD)."

2.  The applicant states the LOD determination was originally found to be "in the LOD, not due to misconduct"; however, this determination was changed to a determination of "not in the LOD, due to misconduct" by the U.S. Army Human Resources Command (HRC).

	a.  The applicant contends there were numerous errors prejudicial to the fair processing of the LOD determination.

	b.  The FSM suffered from a severe case of post-traumatic stress disorder (PTSD) and had a traumatic brain injury (TBI).  Neither condition had been diagnosed or treated prior to his death.

	c.  The FSM's use of alcohol and pain killers were secondary to his PTSD and TBI which was not adequately taken into account by HRC.

	d.  The Department of Veterans Affairs (VA) has denied payment of Dependency and Indemnity Compensation (DIC) based on the non-LOD determination.



3.  The applicant provides the following exhibits:

* 1 – military medical record, dated 29 April 2005
* 2 – statement by Staff Sergeant (SSG) J____ C. A____
* 3 – statement by SSG D____ P____ L____
* 4 – statement by Mrs. K____ H____
* 5 – military medical record, dated 3 November 2006
* 6 – military medical record, dated November 2006
* 7 – military medical record, dated 7 November 2006
* 8 – military medical record, dated 5 November 2006
* 9 – Army reenlistment document, dated 13 June 2007
* 10 – orders awarding Army Good Conduct Medal, dated 18 December 2006
* 11 – unit certificate of achievement for actions under direct fire, dated 11 December 2004
* 12 – original LOD investigation recommending finding of "in the LOD and a result of simple negligence"
* 13 – DA Form 2173 (Statement of Medical Examination and Duty Status)
* 14 – Georgia Motor Vehicle Accident Report
* 15 – DD Form 261 (Report of Investigation – LOD and Misconduct Status), dated 8 November 2007, approving finding of "in LOD"
* 16 – Headquarters, U.S. Army Maneuver Center of Excellence, recommendation to change LOD to "not in the LOD – due to own misconduct," dated 7 April 2008
* 17 – HRC formal determination of "not in the LOD – due to own misconduct," dated 28 July 2008
* 18 – initial legal review of LOD, dated 14 December 2007
* 19 – follow-up legal review of LOD, dated 7 April 2008
* 20 – psychological evaluation by Dr. J____ M____
* 21 – psychological evaluation by Dr. J____ D. B____
* 22 – denial of appeal by HRC
* 23 – Certificate of Death

COUNSEL'S REQUEST, STATEMENT AND EVIDENCE:

1.  Counsel requests correction of the FSM's military records to show his death on active duty was "in the LOD" on behalf of the applicant.

2.  Counsel states the facts, issues, and regulatory provisions concerning this case in a 10-page letter to the Board.  He summarizes the LOD investigation and two legal reviews.  Counsel also discusses the FSM's medical condition and the decision by HRC to reverse the LOD determination.

	a.  Facts, as provided by counsel:

* the FSM first enlisted in the U.S. Army on 15 September 2000 and was trained as an infantryman
* the FSM served in Iraq where he was exposed to IED's, one of which caused him to lose consciousness due to a grade III concussion
* the FSM was subsequently assigned for duty at Fort Gordon, Georgia, as a drill sergeant
* the FSM continued to experience severe headaches of which his wife and co-workers were aware and he had received medical treatment
* the FSM's post-deployment personality and demeanor had changed substantially from that prior to his deployment
* the FSM's military bearing and conduct was highly satisfactory
* the FSM was promoted on time, selected for drill sergeant duty, and reenlisted just 3 weeks prior to his death
* the FSM was not identified as a substance abuser
* the FSM was sleep deprived during the 72 hours prior to his death due to his duty assignments
* the FSM was self-medicating with alcohol and non-prescription pain medication to deal with headaches and emotional problems
* the FSM was displaying symptoms of PTSD and/or TBI
* the FSM died in a one-vehicle accident on a rain slick road between 0130 and 0200 hours just a quarter of a mile from his house
* the FSM was found by the investigating officer (IO) to be "in the LOD" at the time of his death
* the IO's LOD determination was reversed by HRC based on the FSM's blood alcohol content
* the VA denied the applicant's application for DIC based on the revised LOD determination
* the applicant's appeal of the revised LOD determination, as supplemented by two post-mortem psychological evaluations, was denied by HRC

	b.  Counsel's issues:

* the IO failed to develop sufficient evidence to support his conclusions and "in LOD determination"
* the legal opinion, dated 14 December 2007, is inadequate because it only focuses on the blood alcohol level
* the legal review, dated 7 April 2008, is inadequate and equivocal – it should have found the investigation inadequate and returned it for clarification
* HRC erred in changing the LOD determination because there were too many unresolved issues for an informed determination
* the applicant was not properly notified of the decision by HRC prior to the change in the LOD determination, thus depriving her of due process rights and an opportunity to comment
* the Army failed to give due consideration to the FSM's service-connected PTSD resulting in the VA denying the applicant's benefits

	c.  Regulatory Provisions – Army Regulation 600-8-4 (LOD Policy, Procedures, and Investigations):

* paragraph 2-1 – a person who becomes a casualty because of his or her intentional misconduct or willful negligence can never be said to be injured, diseased, or deceased in the LOD
* paragraph 2-6b – injury, disease, or death is presumed to be in the LOD unless refuted by substantial evidence contained in the investigation
* paragraph 3-8e – the IO will collect evidence regarding mental competence or impairment of the deceased or injured, when relevant
* paragraph 4-10b – an injury incurred as the "proximate result" of prior and specific voluntary intoxication is incurred as a result of misconduct.
* paragraph 4-11a – a Soldier may not be held responsible for his or her acts and their forseeable consequences if, as the result of mental defect, disease, or derangement, the Soldier was unable to comprehend the nature of such acts or to control his or her actions
* paragraph 4-14 – if the subject matter of the investigation involves any motor vehicle accident, the mental condition of the driver and the effect of any mental condition of the driver on the accident are important and should be addressed
* paragraph 4-18 – requires the deceased Soldier's widow to be informed and given an opportunity to respond to a proposed change to the duty status determination by HRC

	d.  Formal LOD Investigation – Incomplete:

* the IO did a commendable job in conducting the investigation
* the IO identified a number of contributing factors to the applicant's death including lack of sleep, road and weather conditions, alcohol, seatbelt usage, time of the accident, and PTSD/TBI
* the IO was unable to determine substantial evidence to refute a presumption of an in the LOD finding


* the IO failed to develop a determination whether the FSM's mental condition precluded a finding of not in LOD
* the IO identified that the FSM was suspected of suffering from the effects of PTSD/TBI and was self-medicating
* the FSM was injured, suffered a grade III concussion in Iraq
* the FSM suffered from debilitating headaches
* the FSM was found not to be mentally sound (DA Form 2173, dated 27 September 2007)
* the FSM would talk about Iraq and would start to cry
* the FSM was forgetful
* the FSM took aspirin and drank alcohol to deal with his pain
* the FSM had nightmares, was unable to sleep, was short tempered, and was intolerant of his children's behavior
* the IO failed to recognize the requirement for a mental health professional to render an opinion as to the probable causes of the self-destructive behavior and the FSM's mental soundness at the time of his death
* the IO's determination was not fully developed

	e.  Legal Review – 14 December 2007:

* the legal opinion was inadequate because it focused only on the issue of alcohol
* the legal opinion ignored four probable and separate contributing factors for the accident – lack of sleep, road and weather conditions, time of the accident, and PTSD/TBI
* the legal opinion engaged in unwarranted and improper speculation that deprived the FSM's family of a fair and impartial review
* the legal opinion treats the involvement of alcohol as rising to the level of a presumption of not in the LOD which is completely incorrect
* the legal opinion speculates that the FSM may have been using both alcohol and oxycodone at the time of the accident based on a prescription medication container found in the vehicle

	f.  Legal Review – 7 April 2008:

* the legal opinion states the IO's findings were objectionable
* the legal opinion did not object to HRC changing the finding to "not in the LOD"
* the legal opinion offered that there would be no objection to returning the investigation to the command for further review
* the legal opinion pointed out that a friend had dropped the FSM off at a bar to pick up his car and then left him to drive himself home
* the legal opinion pointed out that the FSM's medical records show treatment for PTSD, but the IO failed to identify where and when PTSD was medically questioned, identified, and/or treated
* the legal opinion pointed out that there were indications the FSM was self-medicating with alcohol
* the legal opinion pointed out that the FSM may not have had sufficient sleep in the previous 72 hours
* the legal opinion pointed out that the FSM had not worn his seat belt, but there is no statement or finding by the IO concerning this as a direct and/or proximate cause of the FSM's death
* the legal opinion did not advise that the investigation needed to be returned for a more complete review, but simply suggested that there would not be any objection if that course were selected
* allowing this investigation to go forward with so many unanswered issues was inappropriate

	g.  FSM's Psychological and Physical Condition:

* the FSM's personality and demeanor changed after receiving a severe head injury in combat
* the FSM exhibited signs of irritability, hyper-vigilance, nightmares, and other indicators of PTSD
* the medical report, dated 27 September 2007, indicated the FSM was not mentally sound and had symptoms of PTSD and the aftereffects of mild TBI

	h.  Action by HRC Reversing the LOD Approving Authority's Findings:

* HRC should not have changed the findings of the LOD except under the most compelling of circumstances
* there are too many unanswered questions for HRC not to have simply returned the LOD for further investigation
* the evidence establishes a high probability that the FSM suffered from PTSD and/or TBI
* HRC should have sought more information about the circumstances of the FSM's death and insisted that a mental health expert render an opinion before opting for the most severe adverse finding
* to find misconduct based on intoxication alone requires a clear showing that physical or mental faculties were impaired due to 


intoxication at the time of the injury, the extent of such impairment, and that the impairment was the proximate cause of the injury

3.  Counsel provides no additional evidence.

CONSIDERATION OF EVIDENCE:

1.  A DA Form 2173, dated 23 October 2007, reports:

	a.  the FSM died in a motor vehicle accident at about 0130 hours, 8 July 2007;

	b.  the FSM's blood alcohol content was 0.285;

	c.  the FSM's car left the road on a declining curve, landing and rolling into a ditch;

	d.  the FSM was found to be in the LOD based on his suffering from symptoms of PTSD, and he may have had a TBI; and

	e.  a formal LOD investigation was not required.

2.  In a memorandum, dated 19 November 2007, the IO determined that the FSM's death was in the LOD based on the following information.

	a.  The sequence of events that transpired during the week of the FSM's death:

* 2-6 July 2007 – the FSM served as duty drill
* 0800 hours, 7 July – FSM drove about 55 miles from his home to his duty station
* 1230-1400 hours – the FSM consumed three beers at the White Tail Pub
* 1530-1614 hours – the FSM returned to the White Tail Pub and consumed two more beers
* 1730-1845 hours – the FSM attended a hail and farewell in Columbus, Georgia, where he consumed two more beers
* 2000-2130 hours – the FSM returned to the White Tail Pub and consumed two or three more beers
* 2130-0125 hours – the FSM traveled with a friend to the Commotion Lounge where the FSM consumed three beers and a shot of liquor


* 0125 hours, 8 July – the FSM traveled with a friend back to the White Tail Pub where the FSM stated he was tired
* 0145 hours – the FSM's friend offered to drive the FSM home, but the FSM felt he could drive the 2.15-mile distance to his home
* 0156 hours – a 911 telephone call stated an accident had occurred
* 0211 hours – the FSM was determined to be dead

	b.  The IO provided the following medical background information:

* 20 March 2005 – the FSM's vehicle in Iraq struck an IED – the FSM sustained a grade-3 concussion and facial lacerations
* the FSM developed severe headaches and bacterial meningitis – the FSM repeatedly sought medical attention for 2.5 years
* the evidence indicated the debilitating injures dramatically affected the FSM's ability to make sound and reasonable judgments
* these injuries significantly affected the FSM's personality by causing increased irritability, significant memory loss, and altered his decision making process
* the IO believed the FSM's injuries caused him to rely heavily on alcohol to alleviate the symptoms and eventually resulted in his death

	c.  The IO provided the following factors that contributed to the FSM's death:

* lack of sleep – the FSM had less than 8 hours total sleep during the 72 hours preceding his death
* road and weather conditions – extremely wet roads from recent rain, light fog, several curves in the road in the vicinity of the accident
* alcohol – blood alcohol content was 0.285, more than three times the legal limit – the FSM consumed about 12 beers and a shot of liquor during the 13-hour period prior to his death
* seatbelt usage – undetermined – the FSM was found unrestrained in the vehicle
* time of the accident – between 0145 and 0156 hours – accident studies indicate most accidents occur between 1200 and 0600 hours, independent of alcohol
* PTSD/TBI – the FSM clearly exhibited signs of these medical conditions even though he had not sought medical help or been diagnosed with such ailments

	d.  The IO concluded that death resulting from incapacitation due to alcohol abuse is not in the LOD; however, in this case the evidence does not conclusively support a defined proximate cause of the accident or death of the 


FSM.  The IO argues the FSM's death could have been the result of fatigue or of not using his seatbelt, either of which would constitute simple negligence and be found in the LOD.  The IO further argues the FSM's medical condition played a key role in the events that led up to his death.

3.  In a memorandum, dated 14 December 2007, a judge advocate in the Fort Benning Administrative and Civil Law Division reviewed the FSM's LOD investigation.  The memorandum provides:

	a.  the LOD was legally insufficient because the determination of in the LOD was not supported by substantial evidence;

	b.  the investigation shows substantial evidence warranting a finding of not in the LOD;

	c.  the official report from the Georgia Division of Forensic Sciences Bureau of Investigation shows the FSM's BAC as 0.285 at the time of the accident, more than three times the legal limit;

	d.  the FSM was not wearing a seatbelt at the time of the accident; and

	e.  the photographic evidence at the scene of the accident indicates the FSM may have been consuming alcohol while under other medication.

4.  In a memorandum in response to a request for a legal opinion from the Chief, Casualty and Mortuary Affairs, HRC, dated 7 April 2008, a judge advocate provided the following opinion.

	a.  The FSM had consumed about 12 beers and at least one shot of liquor in the 12 hours prior to his death.  He was observed numerous times by several different individuals throughout the day who stated the FSM did not appear to be intoxicated.  When the FSM was dropped off to pick up his car, his friend was not concerned enough to insist he drive the FSM the 2 miles to his home.  Further, based on the interactions with and observations of friends and others, the FSM was coherent and cognizant of his actions and decisions.  Thus, substantial evidence and a greater weight of the evidence supports the conclusion that the FSM had voluntarily intoxicated himself, and through his decisions and misconduct, caused his own death.

	b.  The Judge Advocate had no legal objection to HRC reversing the LOD determination to "not in the LOD."

5.  On 28 July 2008, the Casualty and Mortuary Affairs Chief made a determination that the FSM's death as the result of a motor vehicle accident was not in the LOD.

6.  Army Regulation 600-8-4 prescribes policies and procedures for investigating the circumstances of disease, injury, or death of a Soldier.  It provides standards and considerations used in determining the LOD status.

	a.  Appendix B states the purpose of an LOD investigation is to find whether the presumption of death was in the LOD is overcome by a substantial and greater weight of the evidence supporting intentional misconduct or willful negligence.  Rules 3, 4, and 8 of this appendix are relevant to the FSM's death, which, in effect, state that an intoxicated Soldier, being so voluntarily and having committed misconduct while intoxicated, requires a finding of not in the LOD due to misconduct.

	b.  Appendix B-1 states that death caused by the individuals' misconduct or willful negligence is not in the LOD.

	c.  Appendix B-3 states that death resulting from incapacitation because of the abuse of alcohol and other drugs is not in the LOD.  Furthermore, a Soldier's preexisting physical condition that caused increased susceptibility to the effects of the drug does not excuse the misconduct.

	d.  Appendix B-4 states that death resulting from incapacitation because of the abuse of intoxicating liquor is not in the LOD.  While merely drinking alcoholic beverages is not misconduct, one who voluntarily becomes intoxicated is held to the same standards as one who is sober and that intoxication does not excuse misconduct.

	e.  Appendix B-8 states that death caused by a Soldier driving a vehicle when in an unfit condition of which the Soldier was, or should have been aware, is not in the LOD.

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends the FSM's death should be found to be in the LOD because of numerous errors that were prejudicial to the fair processing of the LOD determination.  She argues the FSM suffered from PTSD and a TBI which were not taken into consideration by HRC.  Furthermore, she has been denied DIC as a result of HRC reversing the determination to "not in the LOD."

2.  Counsel argues there were too many unresolved issues and the investigation should have been returned for additional review and clarification.  While doing so may have clarified some of the issues, it would not have changed the fact that the FSM had voluntarily intoxicated himself and chose to drive, even though he was offered a ride to his home.

3.  In this case, the evidence shows the FSM was coherent and cognizant of his actions and decisions.  Thus, substantial evidence and a greater weight of the evidence supports the conclusion that the FSM had voluntarily intoxicated himself and caused his own death through his decisions and misconduct.

4.  When the evidence indicates the Soldier is intoxicated as the result of his own voluntary action and makes the decision to commit misconduct by driving a motor vehicle, a finding of not in the LOD is required.

5.  The applicant's desire to receive VA benefits is not a basis upon which to make an LOD determination.

6.  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)                                         AR20110002715



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ABCMR Record of Proceedings (cont)                                         AR20110002715



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