IN THE CASE OF:	  

		BOARD DATE:	  20 December 2012

		DOCKET NUMBER:  AR20120015763 


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 requests, through his mother who is empowered to act in his behalf, reinstatement of the original Line of Duty (LOD) determination of "In Line of Duty Not Due to Own Misconduct."

2.  The applicant states the original LOD investigation completed on 23 February 2010 found his injury was "In line of Duty Not Due to Own Misconduct"; however, on 21 December 2011, the LOD was unjustly changed to a finding of "Not in Line of Duty - Due to Own Misconduct," which is in violation of Army Regulation
600-8-4 (Line of Duty Policy, Procedures, and Investigations), paragraph 4-18, and denies him his due process rights under the 5th and 14th Amendment of the U.S. Constitution.  He goes on to state when the LOD was changed he was not offered an explanation as to the reason or justification for the change and he was not given the opportunity to respond thoughtfully.  He also states that consideration was not given to the fact he had deployed back-to-back and he was suffering from post-traumatic stress disorder (PTSD).  He goes on to state that because the Army failed to follow the provisions of Army Regulation 600-8-4, not once but three times over a 3-year period, he believes the Army is "estopped" from changing the initial LOD determination.  Accordingly, the Army at this point must return to its initial finding or use the evidence submitted by the applicant to make a finding of In Line of Duty – Not Due to Own Misconduct. 

3.  The applicant provides a 5-page brief and an exhibits list consisting of tabs    A – J.


CONSIDERATION OF EVIDENCE:

1.  The applicant enlisted in the Indiana Army National Guard (INARNG) on
27 October 2000.  He completed his one-station unit training as a field artillery cannon fire direction specialist at Fort Sill, OK.

2.  His record shows he deployed to Iraq/Kuwait from 6 January to 23 December 2006 and he extended his enlistment on 11 April 2006 for a period of 6 years and a $15,000.00 bonus.

3.  He again deployed to Iraq/Kuwait from 11 March to 18 November 2008 and he was promoted to the rank/grade of staff sergeant (SSG)/E-6 on 26 September 2008.

4.  On 20 January 2009 at 0320 hours, the applicant was admitted to the Terre Haute Regional Hospital for what was described as a self-inflicted gunshot wound (GSW) to the head at approximately 0230 hours at his residence.  A blood test was conducted and the applicant was determined to be under the influence of alcohol.

5.  On 30 December 2009, a DA Form 261 (Report of Investigation LOD and Misconduct Status) was prepared that described the applicant's injury as "Accidental self-inflicted gun-shot wound."   The investigating officer found the injury to be in the line of duty and the LOD was approved by the National Guard Bureau (NGB) as "In line of Duty for Gunshot Wound to the Head" on
23 February 2010.

6.  On 21 December 2011, the NGB changed the final approval of the LOD to "Not in Line of Duty – Due to Own Misconduct for Gunshot Wound to the Head."  The NGB forwarded the change in LOD to the Joint Forces Headquarters - Indiana with an explanation that the applicant was diagnosed with acute ethanol intoxication at the time of his injury and in accordance with Army Regulation
600-8-4, injury or incapacitation because of intoxicating substances results in a finding of "Not in Line of Duty" and is due to misconduct.  The memorandum directed the findings be provided to the applicant and informed of his right to appeal.

7.  On 10 February 2012 the applicant submitted an appeal of the change of the LOD findings and contended that the initial investigation was flawed in that it did not include four of the five criteria involved in self-inflicted gunshot wounds, that the investigation did not contain witness statements, that there was no indication of the new evidence used to overturn the original decision, that the applicant's 


mental condition was not taken into consideration, and that the Army is "estopped" from changing the LOD after such a long period (3 years) and not providing sufficient reason for such a change.

8.  On 13 February 2012, the U.S. Army Human Resources Command (HRC), Casualty and Mortuary Affairs Branch notified the applicant that a final review of his LOD was made and it was determined the finding of "Not in Line of Duty – Due to Own Misconduct" was the correct determination and it would be filed in his military records.

9.  On 26 April 2012, in response to an appeal of the LOD, HRC advised the applicant that during a Physical Evaluation Board (PEB) proceedings it was discovered that an error was made in the LOD investigation that determined his injury to be in the line of duty in that the applicant was under the influence and had a blood alcohol content (BAC) of .19, which constitutes misconduct.  Accordingly, the finding of "Not in Line of Duty – Due to Own Misconduct" would stand.

10.  Army Regulation 600-8-4 provides that a formal LOD investigation is required for injury, disease, death or disease that occurs under strange or doubtful circumstances or is supposedly due to misconduct or willful negligence, injury or death involving the abuse of alcohol or other drugs, and self-inflicted injuries or possible suicide.  It also provides that the ARNG approval authority will complete the appropriate blocks on the DA Form 261 approving or disapproving the determination of the appointing authority and in no case will the reviewing authority disapprove the determination without stating the reason and giving the new determination.  If the new determination is adverse to the Soldier, he or she will be advised of the determination and afforded an opportunity to respond before final action is taken.

11.  Army Regulation 600-8-4, Appendix B–3, 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.  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 contention that his LOD determination should be changed to "In Line of Duty – Not Due to Own Misconduct" has been noted and appears to lack merit.

2.  While it is indeed unfortunate that the original investigating officer failed to consider the fact that the applicant was under the influence at the time of his self-inflicted wound, the fact remains that he was a noncommissioned officer who had knowledge of firearms and the dangers they presented, especially when under the influence of alcohol.

3.  It is also noted that the NGB did forward the change of determination and the reason for the change to the applicant's command with instructions to advise the applicant of the change in determination.  Although the record is silent as to when the notification was provided to the applicant, it is apparent based on the applicant's appeal that it was received.

4.  It is also apparent that the applicant's case has been reviewed by all appropriate authorities and that in accordance with the applicable regulation, his injury was "Not in Line of Duty – Due to Own Misconduct".

5.  It is further apparent that regardless of whether the injury was accidental or intentional, the fact that it occurred while he was incapacitated or under the influence of alcohol warrants a finding of misconduct.  Accordingly, it does not appear that any of the applicant's rights were violated and that the findings are in accordance with the applicable laws and regulations governing his circumstances.

6.  In view of the foregoing, there is an insufficient basis for granting the applicant's 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)                                         AR20120015763



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ABCMR Record of Proceedings (cont)                                         AR20120015763



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