IN THE CASE OF:	  

		BOARD DATE:	  10 January 2012

		DOCKET NUMBER:  AR20110009967 


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 mother of a minor dependent daughter of a former service member (FSM), requests the findings of the FSM's 27 August 2004 accident be changed from not in the line of duty (NLOD) to in the line of duty (ILOD). 

2.  The applicant states:

* on 3 February 2004, the minor (CMP-C) was born and paternity was not established at the time of the FSM's death
* on 3 April 2009, the minor (CMP-C) was found and adjudged pursuant to deoxyribonucleic acid (DNA) testing to be the daughter of the FSM
* there were no other heirs impacted by the findings
* her child should not be prejudiced by the unjust determination
* the records should be corrected to allow her child to receive benefits to which she is entitled as a dependent daughter
* there is an error in the Army Regulation 15-6 (Procedures for Investigating Officers and Boards of Officers) investigation report prepared for the purpose of making a line of duty (LOD)/misconduct determination
* the investigation, evidence of record, and findings do not contain evidence sufficient to support a finding of NLOD or the FSM's intentional misconduct or that willful negligence caused the accident
* the LOD determination was not challenged in 2004 because it served to shift blame from the command to the FSM who had no opportunity to defend himself
* the NLOD finding was unknown until the Department of Veterans Affairs (VA) denied the minor child benefits
*  the investigation did provide evidence or discuss the following:

*	the FSM's young age and driving experience and training
*	the statements compiled by individuals who spoke with the FSM prior 
	to rolling out
 *	the FSM did not demonstrate any symptoms of being tired, his speech 
	was not slurred, and his conversation was not illogical
*	there were no signs to show the prescription drugs in his system 
were high enough to impair his ability to drive or slowed his judgment  and reflexes

* there is absolutely no proof the FSM's prescription drugs had any effect on the cause of the accident
* there is no evidence the FSM took the medication in violation of the prescription
* there was no medical opinion that the amount of medication taken was particularly excessive and it is uncertain how the FSM's body processed the medication
* there is no proof the FSM was in an "unfit condition"
* the FSM was able to converse normally without any signs of "intoxication" from prescription drugs
* the fact that the vehicle left the roadway may have been caused by a simple distraction, inattention, or lack of experience or proper training driving such a large vehicle

3.  The applicant provides:

* DD Form 1300 (Report of Casualty)
* Army Regulation 15-6 Investigation Report
* LOD Investigation Guide
* death certificate
* daughter's (CMP-C) birth certificate with court order and DNA test report
* Report of Autopsy
* two VA Forms 119 (Report of Contact)
* final LOD from Camp Dodge, Iowa
* letter from applicant's senator
* daughter's (CMP-C) Social Security Card
* Toxicology Report
* letter from Iowa National Guard Adjutant General 


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.  The FSM enlisted in the Army National Guard on 31 October 2002.  He completed training and was awarded military occupational specialty 88M (Motor Transport Operator).  The highest rank/grade he attained while on active duty was specialist/E-4.

3.  In July 2004, the FSM and 40 other Soldiers were cross-leveled into the 2168th Transportation Company.  The FSM was a validly-licensed driver of an M915A3/4 tractor/M872A1 semi-trailer (40-foot flatbed).

4.  On 11 August 2004, the FSM had his wisdom teeth extracted and was prescribed Propoxyphene (Darvon), Norpropoxyphene, Codeine, and Hydrocodone as painkiller medications.  

5.  On 27 August 2004, the applicant was the driver of a semi-tractor trailer    during a convoy movement.  His vehicle crashed and he was killed.

6.  The following was extracted from the Army Regulation 15-6 Investigation Report:

   a.	On 26 August 2004, the unit commander approved the convoy commander/safety officer's request for the purchase and distribution of alcoholic beverages for that evening at the dining facility at Camp Doge, Iowa.  Beer was to be limited to no more than 3 or 4 beers per individual.  Further, it was briefed that no Soldier under the age of 21 was to drink.  Leadership was present in the dining facility where the alcohol was served.

   b.	The lights-out announcement was between 2300 to 2330 hours.  Wake-up was for 0530 hours.

	c.	There was insufficient rest time between the time of the alcohol consumption and the wake-up time.

	d.	 The convoy commander/safety officer stated he was aware of an 8-hour alcohol consumption policy but was unaware of the verbiage of "duty day."

 	e.  	The investigation shows that a convoy team member stated, "He did not see the FSM with a beer, but he did hear from others that he was drinking.  I don't know how many."  Additionally, page 21, paragraph a, of the report contains the statement, "FSM was seen drinking at 0130 hours."

	f.	On 27 August 2004, the FSM was assigned as primary driver of a semi-tractor trailer (truck #213) in a convoy operation.  Records show the FSM noted his medications on a pre-mission checklist.

	g.	On 27 August 2004, the FSM and convoy departed Camp Dodge, Iowa, bound for Wichita, Kansas at or about 0835 hours.  The FSM, driver of truck #213, had another Soldier as a passenger (assistant driver/observer) in the truck.

	h. 	En route to the destination, the FSM's truck left the road.  An eyewitness, the driver of the truck (bumper #214) immediately behind the FSM's truck stated:

What I seen was the vehicle was just off the edge of the road and angled for the ditch.  It appeared as the driver might of tried to bring the truck back up, but got stuck in by the should[er] of the road and angle in the ditch where at that point it began to tip over….There wasn't anything that I saw that would have caused truck #213 to go into the ditch.

	i.	Upon witnessing the accident, the driver of truck #214 and his assistant 
immediately responded to the scene attempting to extinguish a small engine compartment fire, check for a visual or audio response from the FSM and passenger, and disconnect the main fuse so that a larger fire would not be ignited.

	j.	Other personnel, law enforcement, and air medical evacuation personnel were dispatched to the scene.  Upon arrival, an emergency medical technician made the determination that both Soldiers were dead on the scene.  Due to the posture of truck #213 there was no humanly possible way to extricate the Soldiers from the vehicle without mechanical assistance.  From the time of the accident, it took two hours to cut open the cab and retrieve both Soldiers.

7.  On 27 August 2004, the Iowa Department of Transportation Investigating Officer's Report of Motor Vehicle Accident opined the FSM's accident was attributed to his prescription medications.
 	
8.  On 28 August 2004, the medical examiner determined the FSM's death was caused by multiple blunt force trauma.

9.  On 3 December 2004, the findings and recommendations of the Army Regulation 15-6 investigating officer were approved.

10.  There is no LOD investigation on file.  Apparently, a formal LOD investigation was never completed at the time.

11.  A DA Form 2173 (Statement of Medical Examination and Duty Status), dated 10 January 2010, shows the following:

* item 11 (Medical Opinion) shows the FSM was not under the influence of alcohol and drugs, he was mentally sound, and his injury occurred ILOD
* item 13 (Blood Alcohol Test Made) shows "No"
* item 31 (Formal Line of Duty Investigation Required) shows "No"
* item 32 (Injury Is Considered To Have Been Occurred In Line of Duty) shows "Yes"

12.  During the processing of this case, on 29 August 2011, the Office of the Command Judge Advocate, U.S. Army Human Resources Command (AHRC/JA), provided an advisory opinion which states the following:

   a. Regardless of whether or not the FSM drank on the night before his accident, when he died a post-mortem toxicology test showed he did not have any alcohol in his system.

   b. No witnesses indicate seeing the FSM appear fatigued, or ill, or seen in any way unfit to drive on the morning of 27 August 2004.  The FSM was qualified on the vehicle he was driving, but was still relatively inexperienced.

   c. The investigating officer found the FSM's death to be not in the line of duty-due to own misconduct (NLD-DOM) and the Appointing Authority concurred.  It appears the unit violated Army Regulation 600-8-4, paragraphs 3-12 and 4-6 by failing to notify the FSM's next of kin of the determination and their rights to appeal.  Paragraph 4-6 also states the next of kin has 6 years from the final line of duty determination to file an appeal.   However, despite the 6-year limit on appeals, the U.S. Army Human Resources Command has the power "at any time" to correct or revise a prior determination.
   d. The investigation conforms to the procedures of Army Regulation 15-6, but is inadequate for an LOD investigation under Army Regulation 600-8-4.  Specifically, only an informal LOD investigation was completed which is improper for a death investigation with an NLD-DOM finding.  The reason this is a problem is that Army Regulation 15-6 investigations and LOD investigations have different standards and purposes.  A finding of negligence under Army Regulation 15-6 could be considered misconduct and lead to punishment or administrative sanctions against a Soldier, but a negligence finding is specifically not misconduct in an LOD investigation.  This case is the exact scenario the different regulations are designed to prevent and, had the command processed the LOD investigation correctly, this result may have been avoided.

   e. The advisory writer opines there is insufficient evidence to demonstrate that abuse of drugs was the proximate cause of the accident and the correct determination is ILOD.  The toxicology screen only found the properly-prescribed medications in the FSM's system.  The doctor who reviewed the medical record opined that the levels of Codeine in the FSM's system were higher than expected for therapeutic use.  However, there is no indication on how the doctor arrived at that conclusion.  It would be fairly easy to register a high level if the FSM took a pill shortly before his death (one witness reported that he took some medicine shortly before the convoy, but did not know what kind) or if he had a shorter-than- normal interval between pills.  Those scenarios do not show any kind of intentional misuse of medications.

   f. Furthermore, there is no clear and convincing evidence that intentional misconduct or willful negligence is the reason for the crash.  Even if the FSM had misused his prescription medication, it must be proven that this drug abuse was the approximate cause of the accident.  There is simply no evidence to show it was more likely than not that elevated levels of Codeine or other medication would have caused the crash.

13.  During the processing of this case, on 30 August 2011, the Director of Casualty and Mortuary Affairs Operations Center, U.S. Army Human Resources Command, provided an advisory opinion which states the following:

   a. The investigation completed for the FSM conforms to the procedures of Army Regulation 15-6, but is inadequate for an LOD investigation.  

   b. The FSM had noted his medications on a pre-mission checklist and despite command knowledge, he was given the task of primary driver. 

   c. The unit's leadership, lack of policies and procedures, and lack of command enforcement for policy and procedures appear to burden much of the responsibility for this accident.  The Army Regulation 15-6 investigation results noted discrepancies regarding the unit's safety program, policies and procedures, and the lack of developing and implementing sustainment training.

   d. On 26 August 2004 (the night before the convoy), the Safety Officer contacted the Commander and received approval to purchase and distribute alcohol to the Soldiers in the dining facility.  The FSM was underage to legally drink, but there was some evidence that he may have partaken in the drinking.  However, the post-mortem toxicology indicated the FSM did not have alcohol in his system.

   e. The unit commander was not in compliance with Army Regulation 600-55 (The Army Driver and Operator Standardization Program), paragraph 4-4(a-c) which states, "commanders will develop and implement a sustainment program to be conducted at least every 2 years for any driver with a valid OF 346 (U.S. Government Motor Vehicle Operator's Identification Card)."  The FSM's DA Form 348 (Equipment Operator's Qualification Record) did not have an entry for sustainment training or an annual review.

   f. The unit was not in compliance with Field Manual (FM) 100-14 (Risk Management).  The commander could not produce a Risk Management Standing Operating Procedure (SOP) at the time of the Army Regulation 15-6 investigation.

   g. The unit Safety SOP was not updated regarding the required number of hours rest before a convoy departs, policy concerning the use of medication while operating a military vehicle, policy concerning the transportation of intoxicating beverages in a military vehicle, and a more detailed definition strictly prohibiting the use of drugs.  According to the Army Regulation 15-6 Investigating Officer, "most Soldiers equate "drugs" with illegal drugs and not prescription and non-prescription medications."

h. the Convoy Commander/Safety Officer was in direct violation of
FM 4-01.11 (Unit Movement Operations, and Annex 1, Convoy Commander Checklist) when he did not conduct a detailed check of the vehicles prior to departure.  FM 4-01.11 contains a specific checklist that Convoy Commanders must follow.  The Convoy Commander stated that he drove up and down the convoy line looking for flat tires and chained loads, but he did not do a detailed check.

   i. The newly-assigned and cross-leveled Soldiers had not been trained in risk management and other safety-related subjects according to the Safety Officer.
   j. The FSM was a validly-licensed driver of an M915A34/4 tractor and M872A1 (40-foot flat bed) semi-trailer.  The FSM and 40 other Soldiers had recently been cross-leveled into their sister medium truck company.

   k. A registered nurse and member of the accident investigation board also stated that the FSM's pill count seemed consistent with normal usage.

   l. With the evidence that was available to be obtained in this case, their Command Judge Advocate opined that the investigation does not contain sufficient evidence to demonstrate with clear and convincing evidence that misuse of prescription medication or other misconduct was the proximate cause of the accident.

14.  On 2 September 2011, a copy of the advisory opinion was forwarded to the applicant's counsel for information and to allow an opportunity to submit comments or a rebuttal.  She did not respond.

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

16.  Army Regulation 600-8-4 prescribes policy and procedures for investigating the circumstances of disease, injury or death of a Soldier.  It provides standards 
and considerations used in determining LOD status.  It states for purpose of rendering an LOD determination in death cases, a Soldier's death will be considered to have occurred ILOD unless the death occurred while the Soldier was not serving on active duty, or was the result of the Soldier's intentional misconduct or willful negligence, or the death occurred during a period of unauthorized absence.

DISCUSSION AND CONCLUSIONS:

1.  The applicant's request was carefully considered and determined to have merit.

2.  The facts of the FSM's death are that he was an Iowa National Guard Soldier serving on active duty.  On 27 August 2004, he was involved in a motor vehicle accident while en route from Camp Doge, Iowa.  He suffered blunt force trauma and died on the scene.

3.  The incident in which the FSM was injured was investigated on several levels and determined to be an accident.  However, it appears a formal LOD investigation was never completed at the time.
4.  Based upon the evidence of record and the considered opinion of the U.S. Army Human Resources Command, all records relating to the FSM's death should be changed to show his accident occurred "In the Line of Duty" and the cause of his death should be shown as "Due to Multiple Blunt Force Trauma from a Motor Vehicle Accident."

BOARD VOTE:

____X____  ____X____  ____X____  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

The Board determined that the evidence presented was sufficient to warrant a recommendation for relief.  As a result, the Board recommends that all Department of the Army records of the individual concerned be corrected by:

* Showing a line of duty investigation was conducted and his accident was determined to have occurred "In the Line of Duty Due to Multiple Blunt Force Trauma from a Motor Vehicle Accident"



      _______ _   _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)                                         AR20110009967



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ABCMR Record of Proceedings (cont)                                         AR20110009967



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