IN THE CASE OF:	  

		BOARD DATE:  10 September 2013

		DOCKET NUMBER:  AR20120020685 


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 former spouse of a deceased former service member (FSM), requests the Line of Duty (LOD) determination pertaining to her former spouse be changed from "Not in Line of Duty Due to Own Misconduct" to "In the Line of Duty."

2.  The applicant states the LOD investigation was not done in accordance with Army Regulations (AR) 600-8-4 and 15-6 in that it did not take into account the FSM's mental state at the time of his death.

3.  The applicant provides the U.S. Army Criminal Investigation Command (CID) investigation and statements from three members of the FSM's family.

COUNSEL'S REQUEST, STATEMENT AND EVIDENCE:

1.  Counsel requests the Board reverse the LOD determination that the FSM's death was not in the line of duty due to his own misconduct.

2.  Counsel states, in effect, the investigation was not properly conducted in accordance with the applicable regulations in that certain due process requirements were not satisfied in order to ensure that the Soldier's family was protected, including a legal review and an opportunity to rebut the determination before the investigating officer concluded the investigation.  He goes on to state the applicant never received written notice from the investigating officer that he was recommending an adverse finding before the general court-martial 
convening authority (GCMCA) issued its final determination, notification that an investigating officer (IO) was appointed, the IO's completed AR15-6 investigation, a memorandum by the IO summarizing his investigation, supporting evidence gathered by the IO, the final approval of the GCMCA, or a legal review.  Additionally, there was no determination made regarding his mental condition and his family asserts his post-traumatic stress disorder (PTSD) contributed to his circumstances because he would never willingly have mixed drugs and alcohol in an attempt to kill himself.  Accordingly, because the investigation fails to disprove that he did not suffer from PTSD and that he knew the drug was Oxymorphone instead of a sleeping pill, his death must be presumed to be in the line of duty.

3.  Counsel provides a 4-page brief explaining his position.

CONSIDERATION OF EVIDENCE:

1.  After serving 2 years, 11 months, and 6 days of active service, the FSM, while deployed, reenlisted on 6 December 2007 for a period of 6 years, a selective reenlistment bonus, and stabilization at Fort Campbell, KY.  He was promoted to the pay grade of E-6 on 1 March 2009.

2.  After returning from a deployment in Afghanistan, the FSM was on leave in Indiana attending a family get together and in addition to consuming a large amount of alcohol, he crushed and snorted one Oxymorphone pill, a drug that he was not prescribed.  He was rushed to the hospital where he was pronounced dead at 1905 hours on 22 May 2011.

3.  At the time of his death he was divorced and had a son who was born in September 2007.

4.  The Certificate of Death issued by the Indiana State Department of Health indicates the cause of the FSM's death as Drug (Oxymorphone) and Alcohol intoxication.  He was 27 years of age at the time of his death.

5.  The DA Form 2173 (Statement of  Medical Examination and Duty Status) indicates the FSM ingested oxymorphone, a prescription medication for which he did not possess a prescription.  Coupled with a large amount of alcohol, the mix resulted in death.  This was an apparent accident.  Although deliberately ingested, he did not intend to harm himself.

6.  The actual line of duty investigation and supporting documents are not contained in the FSM's available record and the applicant has not furnished it. 
However, the DD Form 261 (Report of Investigation Line of Duty and Misconduct Status) of record indicates a first lieutenant in the applicant's unit conducted the LOD investigation.

7.  The DD Form 261 indicates the FSM was mentally sound and that his death was not in the line of duty due to own misconduct.

8.  On 19 December 2011, the applicant notified the FSM's son via the U.S. Army Human Resources Command (HRC), that after careful review of the LOD investigation, a final determination was made that the FSM's death was "Not in Line of Duty" at the time of his death.  He was further advised he had 6 years from the date of the LOD determination in which to appeal the finding to the Commanding General, HRC.

9.  Although the actual appeal of the LOD is not present in the available records, on 14 March 2012, the applicant's counsel, a staff judge advocate officer at Fort Campbell, was notified that based on the available evidence, HRC was unable to consider his request for repeal of the LOD determination and advised him to apply to this Board.

10.  AR 600-8-4 (Line of Duty Policy, Procedures, and Investigations), paragraph 3-8 (f)(6), provides that if an adverse determination is contemplated against a Soldier based on the information obtained in the investigation, the IO will notify the Soldier, in writing, of the proposed adverse determination and provide a copy of the investigation and the supporting evidence.  If no response is received, the IO may conclude the investigation and finalize his or her determination.  If a response is received, the IO will review and evaluate the Soldier's response prior to making a final determination.

DISCUSSION AND CONCLUSIONS:

1.  The applicant's contention that the LOD investigation was not properly conducted in accordance with applicable regulations has been noted; however, the actual investigation is not in the available records and the applicant has not provided copies of the investigation in question.

2.  Therefore, in the absence of evidence to prove otherwise, it must be presumed, given the administrative process that LODs must undergo prior to final approval at the Department and the fact that HRC has again reviewed the LOD in an appeal by the applicant, the LOD was properly processed in accordance with the applicable guidelines. 


3.  However, it should also be noted that the FSM was a senior noncommissioned officer and 27 years of age at the time he knowingly mixed alcohol and drugs for which he was not prescribed, an act that he should easily have known was wrong.  Counsel does not indicate what type of sleeping pill is taken by crushing and snorting it.

4.  The applicant's contention that the FSM suffered from PTSD and it affected his judgment has also been noted; however, there is insufficient evidence to show that such was the case or that he was unable to distinguish right from wrong.

5.  In view of the foregoing, there is an insufficient evidentiary 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:

1.  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.

2.  The Board wishes to extend its condolences to the applicant on the passing of her former husband, and wants to thank the applicant for her former husband's service to the United States, especially during the Global War on Terrorism.  The applicant and all Americans should be justifiably proud of his honorable service in arms.



      _______ _  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)                                         AR20120020685



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ABCMR Record of Proceedings (cont)                                         AR20120020685



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