BOARD DATE:	  6 September 2012

		DOCKET NUMBER:  AR20120003391 


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 a deceased former service member (FSM), requests correction of the FSM's record to show on the DD Form 261 (Report of Investigation - Line of Duty (LOD) and Misconduct Status), dated 4 June 2010, the FSM's death was "In Line of Duty" instead of "Not in Line of Duty - Due to Own Misconduct."

2.  The applicant states:

* The FSM was reported in an authorized absence on the DA Form 2173 (Statement of Medical Examination and Duty Status) and in an absent without leave (AWOL) status on the DD Form 261, which is a discrepancy
* There are no DA Forms 4187 (Personnel Action) or statements from the unit first sergeant or commander to support the finding of AWOL
* The investigating officer (IO) neither explains the discrepancy between the DD Form 261 and DA Form 2173 or the inconsistency with regard to the FSM's duty status
* The IO's finding of accidental drug overdose is not supported by any medical evidence
* The oxymorphone was detected in the urine not in the blood and was not found in any amount to signify cause of death
* The military medical examiner's findings were rife with conjecture and speculation and his report cannot assume or pinpoint an accurate cause of death
* The Erie County Coroner's Office, Erie, PA Report concludes the FSM's death was natural, as a result of sudden cardiac death with etiology unknown
* The FSM had a valid prescription for Vicodin, which is documented in his medical records; the autopsy, LOD, and U.S. Army Criminal Investigation Command (CID) reports omitted this critical fact which casts doubt on the thoroughness of these investigations
* The finding that the FSM died as a result of oximorphone toxicity should be revised 

3.  The applicant provides:

* Marriage record
* Letter from the Freedom of Information Act Office, U.S. Army Human Resources Command (HRC)
* Appointment of IO memorandum
* DA Form 2173
* DD Form 261
* HRC's Final LOD Determination 
* IO's LOD Investigation with allied documents
* Autopsy Examination Report
* Erie County Coroner's Office Investigation Report
* CID Report of Investigation 
* PA State Police Incident Report
* FSM's Chronological Records of Medical Care

CONSIDERATION OF EVIDENCE:

1.  The FSM enlisted in the Regular Army (RA) on 9 April 2008 and he held military occupational specialty 92G (Food Service Specialist).  He was assigned to the 506th Quartermaster Company, 530th Combat Support Battalion, Fort Lee, VA.  

2.  On 30 December 2009, he died of what was later described as oxymorphone toxicity.  According to public websites, Oxymorphone is a drug that is marginally more toxic than morphine but less so than fully synthetic opioids such as methadone or pethidine. 

3.  On 5 January 2010, HRC issued a DD Form 1300 (Report of Casualty) that shows the FSM was AWOL from 21 to 30 December 2009 and the circumstances of his death were pending. 


4.  An Erie County Coroner's Office Investigative Report submitted by the applicant shows:

	a.  The Coroner's Office was contacted by the hospital to report the FSM's death.  The doctor related that the FSM was found unresponsive in a basement bedroom at the residence of a friend.  The doctor also related the FSM was on leave and he and his wife were there for the holidays.  The FSM's spouse related the FSM had a history of drug abuse, he was bipolar, and he had back problems. 

	b.  Upon arrival at the hospital, emergency medical personnel tried to revive the FSM.  Statements were made by unknown individuals that he had been cooking heroin and there was also talk about marijuana; however, there was no evidence of any drugs. 

	c.  Toxicology results later returned only Delta-9 THC 1.2 nanog/ml and Delta-9 Carboxy THC of 17 nanog/ml (according to public websites, the biotransformation product of delta-9-tetrahydrocannabinol, which is the main active compound of the product from cannabis:  marijuana and hashish).  The toxicology revealed no significant conditions that would explain the death within a medical or scientific certainty.  

	d.  The Armed Forces Institute of Pathology (AFIP) Medical Examiner's Office agreed to come to Erie, PA and conduct its own autopsy since the FSM was on active duty.  Military toxicology revealed oxymorphone in the urine but the Coroner indicated that the AFIP's toxicology finding could not be accurately quantified and could not be used as a viable cause of death. 

	e.  The Coroner opined that death was natural as a result of sudden cardiac death – etiology unknown.  Other conditions included:  urine screen positive for oxymorphone to which effect this office signed the certificate. 

5.  The FSM's body underwent various examinations as part of the autopsy.  A consultation report on contributing factors revealed he tested positive for opiate and cannanabinoid, as follows:

	a.  Positive opiate: Oxymorphone was detected in the urine by immunoassay and confirmed by gas chromatography/mass spectrometry.  

	b.  Positive Cannanabinoid: 11-nor-delta-9-tetrahydrocannabinol-9-carboxylic acid was detected in urine by immunoassay and confirmed by gas chromatography/mass spectrometry.

6.  The AFIP Autopsy Examination Report, dated 22 March 2010, shows the following:

	a.  The FSM was reported in an AWOL status while traveling back to Erie, PA, where he and a friend stayed at the FSM's mother-in-law's residence.  On 30 December 2009, he was visiting a friend in Erie, PA.  The friend was working in the garage when he returned inside and found the FSM unresponsive on the couch.  Emergency medical personnel transported him to a local hospital where resuscitative efforts were unsuccessful.  The cause of death is listed as "oximorphone toxicity" and the manner of death is listed as "Accident." 

	b.  The military Deputy Medical Examiner opined that the FSM died of oxymorphone toxicity.  Oxymorphone was extensively metabolized and excreted in the urine.  At autopsy the findings of pulmonary edema and hepatic congestion were suggestive of drug toxicity.  Toxicology is positive for oxymorphone and    11-nor-delta-9-tetrahydrocannabinol-9-carboxylic acid.  Since it was not known when, how much, or exactly what the FSM introduced into his body, it was difficult to determine how much of the drug was metabolized before he died.  The presence of 11-nor-delta-9-tetrahydrocannabinol-9-carboxylic acid does not contribute to the cause or manner of death.  If new information becomes available, it would be evaluated; however, at this time, the manner of death is accidental.

7.  On 9 April 2010, a DA Form 2173 was initiated by the Commander, U.S. Army Medical Activity, Fort Meade, MD.  This form shows the FSM was found unresponsive at a friend's home in Erie, PA, and he was taken to a civilian hospital and died on arrival at the hospital on 30 December 2009.  Section II (To Be Completed by the Unit Commander) shows in:

* Item 19 (Duty Station) – "Absent with Authority"
* Item 20 (Hour and Date of Absence) – 21 December 2009 to                   30 December 2009
* Item 21 (Absence Without Authority Materially Interfered with the Performance of Military Duties) – is marked "YES" 
* Item 29 (Duty Status at Time of Death if Different from Time of Injury or Contraction of Disease) – the "Absent Without Authority" block is marked

8.  On 18 April 2010, an IO was appointed by the 475th Quartermaster Group, Farrell, PA, to conduct a formal investigation into the FSM's death.  



9.  A CID Report of Investigation, dated 19 May 2010, shows the FSM accidentally died as a result of wrongful use of drugs.  The report shows:

	a.  An investigation by the Erie County Coroner's Office and AFIP, Rockville, MD, disclosed the FSM committed the wrongful use of a controlled substance when a toxicology examination revealed the presence of Oxymorphone in the urine and marijuana in the urine and blood collected from the deceased. 

	b.  The autopsy and toxicology reports prepared by AFIP determined the cause of death was "Oxymorphone Toxicity" and the manner of death was "accidental." 

10.  On 4 June 2010, a DD Form 261 was initiated and completed by various officials.  The form shows the FSM died at 1800 hours, on 30 December 2009, in Harbor Creek, PA, after sustaining an accidental drug overdose.  The medical diagnosis was that of "Oxymorphone toxicity."  The FSM is listed in an AWOL status at the time of death.  

	a.  The IO remarked that the death was not in LOD and was due to own misconduct.  The FSM was AWOL according to the unit but the FSM perceived he was on authorized leave.  There were no witnesses and the first person on the scene was not credible.  

	b.  The appointing authority, an officer of the 475th Quartermaster Group, approved the findings on 4 June 2010. 

	c.  The final approving authority approved the IO's findings of "Not in Line of Duty - Due to Own Misconduct" on behalf of the Secretary of the Army.

11.  On 30 September 2010, the Chief, Casualty and Mortuary Affairs Branch, U.S. Army HRC, Fort Knox, KY, made a determination that the FSM died on     30 December 2009 as a result of Oxymorphone Toxicity which was "Not in Line of Duty - Due to Own Misconduct" at the time of death. 

12.  An advisory opinion was obtained from the Office of the Director, Casualty and Mortuary Affairs Operations Center, HRC, Fort Knox.  An official stated the determination of "Not in Line of Duty – Due to Own Misconduct" stands.  He added:

	a.  The FSM was reported AWOL by his unit on 21 December 2009.  During this analysis, it was confirmed by the Defense Finance and Accounting Service (DFAS) that the FSM was AWOL at the time of death.
	b.  The FSM had back and shoulder pain and a thyroid problem.  He was treated at Patient First in Chester, VA, and prescribed Vicodin, Flexeril, and Medrole Dose pack.  In his Outpatient Consultation, his active medications indicated Hydrocodone Bit/Acetaminophen and Ibuprofen. 

	c.  The autopsy report shows positive tests for oxymorphone and cannabinol. 

	d.  In accordance with Army Regulation 600-8-4 (LOD, Procedures, and Investigations) any injury or disease incurred while the Soldier is AWOL will be handled as "not in line of duty" unless the Soldier was mentally unsound at the inception of the unauthorized absence.  If there is no further misconduct shown other than the AWOL, the correct determination is "not in line of duty – due to own misconduct." 

13.  On 17 May 2012, the applicant submitted a rebuttal wherein she stated she did not concur with the advisory opinion.  She contends: 

	a.  The regulation stipulates an initial presumption of in LOD; rebutting this presumption requires substantial and weighed evidence to support a reasonable degree of certainty of the conclusion drawn.

	b.  The case had been fraught with incomplete records and less-than-thorough investigation.  For example, she (the widow) was never interviewed by the IO, CID, or other Army officials. 

	c.  There is no explanation of the discrepancy between the DA Form 2173 and the DD Form 261 with regard to the duty status at the time of death.  The IO's conclusion was that the AWOL was "likely" which does not meet the threshold of a preponderance of evidence. 

	d.  The presence of an opiate derivative in his system was not unexpected because he had a valid prescription for Vicodin and Flexeril and he had an active prescription for Hydrocodone.  He was being treated for other ailments and injuries for over a year. 

	e.  There are inconsistencies between the Coroner's opinion of the cause of death as sudden cardiac death – etiology unknown with a note of the positive urine screen showing the presence of oxymorphone and that of AFIP that lists the cause of death as oxymorphone toxicity and that of the certificate of death. 

14.  Army Regulation 600-8-4 prescribes policies, procedures, and mandated tasks governing LOD determinations of Soldiers who die or sustain certain injuries, diseases, or illnesses.  
	a.  Paragraph 2-6c states LOD 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 4-7 (Unauthorized Absence) states any injury or disease incurred while the Soldier is AWOL will be handled as "not in line of duty" unless the Soldier was mentally unsound at the inception of the unauthorized absence. If there is no further misconduct shown other than AWOL, the correct determination is "not in line of duty—not due to own misconduct."  To establish that a person was AWOL for LOD purposes, it must be shown that the Soldier voluntarily left his or her unit or organization or other place of duty without proper authority, or was absent from a scheduled duty or restriction at the time of injury or disease.

	c.  Paragraph 4-13c states that for the purpose of rendering an LOD determination in death cases, a Soldier’s death will be considered to have occurred in LOD unless the death was the result of the Soldier’s intentional misconduct or willful negligence or the death occurred during a period of unauthorized absence.   

	d.  Glossary 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.  Glossary 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.  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.

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

	h.  Appendix B, Rule 3 states injury, disease, or death that results in incapacitation because of the abuse of alcohol and other drugs is not in LOD.  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.  The fact 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.

15.  Army Regulation 15-185 governs the operation of the Army Board for Correction of Military Records (ABCMR).  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.  The ABCMR will decide cases on the evidence of record.  It is not an investigative body.

DISCUSSION AND CONCLUSIONS:

1.  The evidence of record shows the FSM was reported AWOL by his unit on 21 December 2009 and he was also AWOL at the time of death.  His DFAS pay records further confirm this duty status.  An injury, illness, or death that occurs while the Soldier is in an AWOL status is "Not in Line of Duty – Due to Own Misconduct" unless the member was mentally unsound at the time of the unauthorized absence.  

2.  The FSM died on 30 December 2009.  The Coroner's Office stated that toxicology revealed no significant conditions that would explain the death within a medical or scientific certainty.  The Coroner opined that death was natural as a result of sudden cardiac death – etiology unknown.  Other conditions included:  urine screen positive for oxymorphone to which effect that office signed the certificate. 

3.  An autopsy was also conducted by an AFIP medical examiner whose toxicology revealed oxymorphone in the FSM’s urine.  A consultation report on contributing factors revealed the FSM tested positive for opiate and cannanabinoid.

4.  An IO was appointed to determine the circumstances of the FSM's death.  The IO's findings, which included sworn statements, medical reports, and toxicology reports were also consistent with the ultimate findings of oximorphone toxicity.  The IO indicated this finding on the DD Form 261.  Both the appointing and approving authority approved this finding.  Additionally, a review by the Office of the Director, Casualty and Mortuary Affairs Operations Center, HRC, Fort Knox confirmed this finding.  

5.  With respect to the applicant's arguments:  

	a.  When the DA Form 2173 is initiated it initially presumes an injury, illness, or death is in LOD.  One of the reasons for such presumption is the absence of all the facts and circumstances.  

	b.  It is acknowledged that the DA Form 2173 contains contradictory information – whether the FSM was absent with authority (in item 19) or absent without authority (in item 29).  However, the preponderance of the evidence in this case shows the FSM was absent without authority, and the applicant provides insufficient evidence to show the contrary.

	c.  The FSM's pay records confirmed the exact duty status at the time and the DD Form 261 correctly listed his status as AWOL.  

	d.  The applicant contends the IO did not conduct a thorough investigation.  Yet, the FSM's death contains civilian and military toxicology reports, sworn statements, other medical reports, a CID investigation, and multiple reviews by various levels of the chain of command.  If anything, a very thorough investigation was conducted to reach this conclusion.  

	e.  The FSM had an active prescription for Hydrocodone and he appears to have been undergoing treatment for other ailments and injuries for over a year. However, he was AWOL and there is no evidence he was mentally unsound at the time of AWOL.  


6.  The FSM's honorable service to the Nation is noted.  Additionally, the applicant's efforts in coping with this tragic accident are also noted.  However, the fact remains that he died as a result of his own misconduct.  The determination of "Not in Line of Duty - Due to Own Misconduct" is the appropriate conclusion.

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)                                         AR20120003391



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ABCMR Record of Proceedings (cont)                                         AR20120003391



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