IN THE CASE OF:
BOARD DATE: 25 July 2013
DOCKET NUMBER: AR20120021386
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 that her late husband's Line of Duty (LOD) Determination be changed to "In the line of duty."
2. The applicant states her husband displayed signs of Post Traumatic Stress Disorder (PTSD) and his unit would not help him.
3. The applicant provides seven enclosures outlined on the Table of Contents page of her application.
CONSIDERATION OF EVIDENCE:
1. The FSM enlisted in the Regular Army on 12 March 2003. He trained as a communications and information systems operator and served in Kuwait/Iraq from:
* 7 October 2003 to 27 March 2004
* 5 November 2005 to 6 November 2006
* 27 November 2007 to 9 February 2009
* 12 April 2011 to 7 December 2011
2. The applicant provides two DA Forms 4856 (Developmental Counseling Form), dated 6 February 2012, which show the FSM was counseled for:
* failing to report for accountability formation
* drunken or reckless operation of vehicle, aircraft, or vessel
3. The FSM died on 21 February 2012.
4. The applicant provides a DA Form 2173 (Statement of Medical Examination and Duty Status), dated 24 February 2012, that states:
* the FSM was racing his motorcycle with another motorcycle and collided with an on-coming passenger car while fleeing the scene and police
* he was pronounced dead at 0130 on 21 February 2012
* he was traveling at a high rate of speed attempting to evade police
* a vehicle pulled out of a parking lot and in the path of his motorcycle
* he t-boned the vehicle on the driver side
* the vehicle flipped over and the FSM was thrown from his bike
5. Item 15 (Final Approval) of a DD Form 261 (Report of Investigation LOD and Misconduct Status), dated 28 March 2012, shows the final approval authority determined the FSM was "NOT IN THE LINE OF DUTY DUE TO OWN MISCONDUCT (DEATH CASE)."
6. She provides a memorandum, dated 22 June 2012, from the Director, Casualty and Mortuary Affairs Operations Center, U.S. Army Human Resources Command, Fort Knox, KY that states this office made an LOD determination that the FSM, who died in Killeen, TX on 21 February 2012 as a result of injuries suffered in a motor vehicle accident was "Not in Line of Duty Due to Own Misconduct" at the time of death.
7. The applicant also provides a letter, dated 24 August 2012, from the Deputy Chief, Plans Training and Operations Casualty and Mortuary Affairs Operations Center, U.S. Army Human Resources Command, Fort Knox, KY which states the applicant's LOD determination appeal was denied.
8. There is no evidence which shows the FSM was diagnosed with PTSD prior to his death.
9. Appendix B (Rules governing LOD and misconduct determinations), Rule 9 of Army Regulation 600-8-4 (LOD Policy, Procedures, and Investigations) states that injury or death because of erratic or reckless conduct, without regard for personal safety or the safety of others, is not in the line of duty. It is due to misconduct. This rule has its chief application in the operation of a vehicle, but may be applied with any deliberate conduct that risks the safety of self or others.
DISCUSSION AND CONCLUSIONS:
1. The applicant contends the FSM suffered from PTSD and his unit would not help him. However, there is no evidence and she provides no evidence that shows he was diagnosed with PTSD prior to his death.
2. The evidence shows the FSM was traveling at a high rate of speed on his motorcycle attempting to evade police when a vehicle pulled out of a parking lot and in the path of his motorcycle. He collided with the on-coming vehicle and was thrown from his motorcycle. He died on 21 February 2012 in Killeen, TX as a result of injuries suffered in the motorcycle accident.
3. The governing regulation states that an injury or death due to erratic or reckless conduct, without regard for personal safety or the safety of others, is not in the line of duty. It is due to misconduct.
4. Since the LOD Report of Investigation clearly established misconduct, the FSM was found to be not in the LOD, due to own misconduct. Without substantiating evidence, it appears the investigating officer and approval authorities made a proper LOD determination. Regrettably, there is an insufficient basis for granting the applicants request.
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.
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