BOARD DATE:	  18 April 2012

		DOCKET NUMBER:  AR20110020408 


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:

The applicant, the widow of a deceased former service member (FSM), defers to counsel.

COUNSEL'S REQUEST, STATEMENT AND EVIDENCE:

1.  Counsel requests reconsideration of the earlier petition to the Board requesting correction of the FSM’s military record to show his death was in the line of duty (LOD).

2.  Counsel states he supplemented the record of the original case on 26 July 2011 with two affidavits from individuals who knew the FSM for a considerable period of time who describe how they had an opportunity to observe the FSM and see changes in him following his combat tour in Iraq.  He further states the Board of Veterans Appeals issued a decision on 28 September 2011 which reversed its earlier Department of Veterans Affairs (VA) decision that denied the applicant’s Dependency and Indemnity Compensation (DIC) claim.  Counsel states the original denial of VA benefits was on the same basis as the Army’s denial which was the FSM’s death was due to willful misconduct and he outlines the basis for the VA reversing its decision.  

3.  Counsel provides the two affidavits and VA decision outlined above in support of the application.

CONSIDERATION OF EVIDENCE:

1.  Incorporated herein by reference are military records which were summarized in the previous consideration of the applicant's case by the Army Board for Correction of Military Records (ABCMR) in Docket Number AR20110002715, on 11 August 2011.

2.  During its original review of the case, the Board determined that while the application and supporting documents submitted by the applicant and counsel may have clarified some of the issues, it did not change the fact the FSM voluntarily intoxicated himself and chose to drive even though he was offered a ride home.  

3.  Counsel now provides third-party affidavits and a Board of Veterans’ Appeals decision service connection decision, dated 28 September 2011, as new evidence.

	a.  The first affidavit is from a Soldier who served with the FSM, and the second is from the FSM’s mother.  In his affidavit, the Soldier who served with the applicant describes the changes in the FSM after his involvement in multiple Improvised Explosive Device (IED) incidents in Iraq.  He states the FSM never admitted to injuries from the IED incidents; however, after his return from Iraq he changed.  He states the biggest change in the applicant was the increased level of his alcohol use and it is his belief the FSM used alcohol to cope with his headaches and mental state after returning from Iraq.

	b.  The second affidavit from the FSM’s mother also outlines the changes in the FSM after his return from Iraq.  The FSM’s mother describes his erratic behavior with his family, his complaint of pain from headaches, and his extensive use of pain relievers prescribed by the Army.  She also indicated emergency room medical personnel told the FSM he was suffering from a Traumatic Brian Injury (TBI) but nothing could be done and he would have to learn to live with it and indicated the applicant often slurred his speech.  She further indicated the FSM indicated he could no longer stand in formation for any length of time before falling out.  

	c.  The VA decision of 28 September 2011, provided by counsel, indicates the appeal for service-connection for the cause of the FSM’s death was granted.  The VA indicated that while a favorable service department LOD determination is binding on the VA, an LOD determination of misconduct due to alcohol use is not binding.  It further indicates the laws and regulations governing VA’s determination as to whether there is willful misconduct are different than regulations governing LOD or misconduct by a service department.  
3.  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 further provides standards and considerations used in determining LOD status.  Appendix B provides the rules governing LOD and misconduct determinations.  Rule B-3 states injury, disease, or death resulting from incapacitation because of the abuse of alcohol and other drugs is not in line of duty.  It is due to misconduct. This rule applies to the effect of the drug on the Soldier's conduct, as well as to the physical effect on the Soldier's body.  Any wrongfully drug-induced actions that cause injury, disease, or death are misconduct.  That the Soldier may have had a pre-existing physical condition that caused increased susceptibility to the effects of the drug does not excuse the misconduct. 

DISCUSSION AND CONCLUSIONS:

1.  The reconsideration request that the LOD determination on the FSM be changed and the new evidence submitted have been carefully considered.  However, there is still insufficient evidence to support this request. 

2.  The affidavits submitted further support that the applicant may have been suffering from undiagnosed PTSD and TBI.  However, this was already a consideration during the original review of the case.  Further, the argument that this should result in a change of the LOD determination fails because a preexisting medical condition that increases a Soldier’s susceptibility to the effects of alcohol does not excuse a finding of misconduct premised on intoxication.

3.  Even assuming the FSM was self-medicating with alcohol, there is no evidence that he lacked the mental capacity to understand drinking and driving was not only illegal, but dangerous.  Given the FSM’s blood alcohol content, it is a fair conclusion that his state of intoxication was the cause or a significant factor in the motor vehicle crash.  The VA appeal decision to grant service connection for death benefits based on its own laws and regulations, which the VA admitted differed from service department regulations, is within their right to do so.  However, this decision does not call into question the Army’s misconduct LOD determination.  

4.  In view of the facts of this case, even when considering the new evidence, there is an insufficient evidentiary basis to grant the applicant's requested relief, or to amend the original Board decision in this case. 


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 to amend the decision of the ABCMR set forth in Docket Number AR20110002715, dated 11 August 2011.



      ____________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)                                         AR20110020408



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ABCMR Record of Proceedings (cont)                                         AR20110020408



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