IN THE CASE OF: 

		BOARD DATE:	  8 November 2012 

		DOCKET NUMBER:  AR20120004515 


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's request for correction of the record of her deceased husband, a former service member (FSM), her statements, and supporting documents are submitted through counsel.   

COUNSEL'S REQUEST, STATEMENT AND EVIDENCE:

1.  Counsel requests the record of the FSM be corrected by overturning the Line of Duty (LOD)/misconduct determination of the U.S. Army Human Resources Command (AHRC) and to comply with the original LOD/accidental finding.  

2.  Counsel states the decision of AHRC to overturn the original LOD/accidental findings was erroneous both factually and legally, and the facts must be viewed in light of the rules applicable to LOD determinations.  

3.  Counsel provides a 13 page brief and the 23 enclosures identified therein in support of the application. 

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's Army Military Human Resource Record (AMHRR) shows he enlisted in the Regular Army on 17 August 2006.  It further shows he was advanced to specialist (SPC)/E-4 on 16 May 2008, and that this is the highest grade he held during military service.  

3.  The AMHRR also contains a USAEREC Form 2 (Statement of Service-Enlisted Personnel), dated 20 October 2008, which shows the applicant completed 2 years, 1 month, and 26 days of active military service creditable for retirement as of the date of his death on 12 October 2008. 

4.  The record also contains a DD Form 1300 (Report of Casualty), dated 
20 February 2009, which is identified as the final report in item 1 (Report Type).  The casualty information in item 4 (Casualty Information) is as follows:

	a.  Type- Nonhostile;

	b.  Status - Deceased;

	c.  Category - Accident;

	d.  Date of Casualty - 12 October 2008;

	e.  Place of Casaulty - Baghdad, Iraq;

	f.  Circumstances - accident, complications of chronic intravenous drug abuse, per death certificate;

	g.  Duty Status - Active, Present for Duty; and

	h.  Body Recovered - Yes.

5.  The AMHRR is void of investigative reports or any documents or forms related to the line of duty investigation.  

6.  The applicant provides the LOD determination memorandum issued by the Chief, Casualty and Mortuary Affairs Operations Center, AHRC, dated 
1 February 2010.  This memorandum indicates that after a thorough review of the Army Regulation (AR) 15-6 investigation and Criminal Investigation Division (CID) report, it was determined the FSM was "Not in the Line of Duty-Due to Own Misconduct" at the time of his death.  It further indicated the CID investigation revealed the FSM, who had an appendectomy four days prior to his death, had a history of abusing prescription drugs by intravenous means.  It further stated that although the FSM was deployed, there is no evidence in the CID or AR 15-6 investigations or his clinical records mitigating the abuse of prescription drugs.  The fact the FSM was a trained medical professional only magnified his conduct which amounts to willful negligence.  AR 600-8-4 (Line of Duty Policy, Procedures, and Investigations), 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 line of duty.  It is due to misconduct."  The memorandum further states that based on the preponderance of the evidence, the FSM was determined to be "Not in the Line of Duty-Due to Own Misconduct."

7.  The applicant provides an Autopsy Examination Report issued by the Armed Forces Institute of Pathology, Office of the Armed Forces Medical Examiner, Rockville, Maryland.  The final autopsy diagnoses included evidence of chronic intravenous drug abuse.  The medical examiner opinion indicated the FSM died of complications of chronic intravenous drug abuse.  

8.  The applicant also provides an autopsy examination report issued by the Armed Forces Institute of Pathology, dated 29 January 2009, that found the case of death was complications of chronic intravenous drug abuse.  The final autopsy diagnosis in this report includes a statement indicating there was evidence of chronic intravenous drug abuse and identifies the medical findings supporting his conclusion.  

9.  The applicant also provides a memorandum from an AHRC Attorney-Advisor, dated 12 July 2011, Subject: Legal Review of LOD Investigation.  In this memorandum the attorney-advisor opines that the legal opinion provided by the Command Judge Advocate, dated 22 January 2010, contains factual errors which led to an erroneous legal conclusion.  He outlines those parts of the legal opinion he believes were in error.  Based on his analysis, the attorney-advisor concludes the majority of the evidence leads him to believe that the applicant's death was accidental, not the result of misconduct and therefore, should be in the LOD.  

10.  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 line of duty (LD) status.  Appendix B provides rules governing LOD and misconduct determinations.  It states, in pertinent part, that injury, disease, or death that results in 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 applicant’s request, through counsel, and the supporting evidence provided has been carefully considered.  However, there is insufficient evidence to support changing the LOD determination.  

2.  The evidence of record shows the FSM's LOD determination was properly processed through the appellate process.  The record includes the report of a properly conducted autopsy examination issued by the Armed Forces Institute of Pathology.  This autopsy examination confirms the FSM’s case of death was due to complications of chronic intravenous drug abuse.  The final autopsy diagnosis in this report includes a statement indicating there was evidence of chronic intravenous drug abuse and identifies the medical findings supporting the conclusion. 

3.  The arguments and assertions that the autopsy results were primarily based on misinformation in the investigation report and a legal review completed in the case are not sufficiently compelling to call the results of the autopsy into question and/or to overturn the AHRC appellate decision.  

4.  In view of the foregoing, there is an insufficient evidentiary basis to support granting the requested relief.  

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)                                         AR20120004515



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ABCMR Record of Proceedings (cont)                                         AR20120004515


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