IN THE CASE OF:	

		BOARD DATE:	  22 October 2013

		DOCKET NUMBER:  AR20130005206 


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 the DD Form 1300 (Report of Casualty) of his deceased brother, a former service member (FSM), be corrected to show his death was not "accidental - self-inflicted gunshot wound." 

2.  The applicant states he received an email from an individual named, A--x S--k who saw the FSM's hooch mate jacking (taking) rounds from the FSM's damaged M-16 rifle and in the process, the M-16 discharged and killed the FSM.   

3.  The applicant provides:

* Email, dated 9 March 2008, from Mr. A--x S--k
* Email, dated 29 July 2008, from applicant to Mr. A--x S--k
* Printout of FSM Virtual Wall
* Birth certificate

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 was inducted into the Army of the United States on 1 April 1969.  He was discharged on 2 April 1969 and enlisted in the Regular Army on 3 April 1969.  He completed training and he was awarded military occupational specialty 26C (Target Acquisition Surveillance Radar Repairman). 

3.  He served in Vietnam from 5 April 1970 to 1 December 1970.  He was assigned to the 59th Signal Company and attached to the 147th Light Equipment Maintenance Company.  He held the rank/grade of specialist four (SP4)/E-4.

4.  On 1 December 1970, the FSM suffered a gunshot wound to his neck.  He was transferred to the 24th Evacuation Hospital, Long Binh, but he died on arrival.  An investigation was conducted by First Lieutenant (1LT) S----y O. J---s, an investigation officer (IO), of the 548th Light Maintenance Company. 

5.  On 3 December 1970, the Office of the Provost Marshal, Long Binh, submitted a preliminary Report of Shooting that states on 2 December 1970, unit 12 was dispatched to the 147th Light Equipment Maintenance Company in reference to a shooting.  Upon arrival, the company charge of quarters stated that while he was making a routine bed check of his unit area, at approximately 2345 hours, 1 December 1970, he heard a shot fired in the direction of the orderly room, Building Number 5532.  Upon arrival at the orderly room, he observed the victim lying on the floor of the orderly room with an M-16 rifle, Serial Number xxxxx2, lying on the floor next to him.   

6.  A U.S. Army - Vietnam Casualty Report was prepared and stated the FSM was pulling duty as charge of quarters runner.  Another service member was assigned to guard the safe in the orderly room as it had part of the payroll left in it.  He had his M-16.  The FSM told the guard he would watch the safe for him if he desired to use the latrine.  While the guard was in the latrine, he heard a shot. The charge of quarters, who was out making a billet check, and the guard rushed to the orderly room and found the FSM on the floor in the Executive Officer's office.  He was taken to the 24th Evacuation Hospital where he was pronounced dead on arrival.

7.  On 11 December 1970, an "Interim" DD Form 1300 (Report of Casualty) was initiated by order of the Secretary of the Army.  This form shows the FSM died as a non-battle casualty, on 1 December 1970, in Vietnam, as a result of an apparent self-inflicted gunshot wound. 

8.  The IO conducted an investigation and interviewed:

* Staff Sergeant (SSG) W-----m E. C---g, the Company Duty Noncommissioned Officer, on 19 December 1970
* Specialist Five (SP5) S----n M. B-----t, the Company Charge of Quarters, on 21 December 1970 
* SP4 G-----y C. C------k, the Orderly Room Guard (guarding the safe), on 21 December 1970

9.  His records contain a DD Form 261 (Report of Investigation - Line of Duty and Misconduct Statement), dated 21 December 1970, and submitted by 1LT S----y O. J---s, the IO.  This form shows:

   a.  He was performing duty as charge of quarters (CQ) driver on 1 December 1970.  Also on this date, SP4 C------k was assigned the duty of guarding the company safe in the Executive Officer's office.  While SP4 C------k was gone to the latrine, [FSM] shot himself with an M-16 rifle in the neck.  Based on the investigation of the incident and the character of the witnesses, SSG C---g, SP5 B-----t, and SP4 C------k, the witness statements appear to be correct.  

	b.  The IO determined the FSM's death was in line of duty. 

	c.  The appointing authority, Major S----- I. D---s, Headquarters, 79th Maintenance Battalion, signed this form. 

	d.  The reviewing authority, Captain G----f C. G----r, Headquarters, U.S. Army Support Command, reviewed the DD Form 261 on behalf of the commander and placed his signature.  

	e.  The Adjutant General, Department of the Army, Washington DC, reviewed the form for completeness and indicated no determination was made.  He authenticated this form with his signature. 

10.  On 2 February 1971, the Chief, Documentation and Special Actions Branch, Casualty Division, Department of the Army, stated that the investigation was reviewed by his branch and does not conclusively appear to justify a ruling of suicide.  He requested a review by the Chief of Military Personnel Law Branch.  

11.  On 18 February 1971, the Chief Military Personnel Law Team, Military Affairs Division, Department of the Army, opined that the information contained in the submitted file is not sufficient to overcome the presumption that death was due to an accident rather than intentional self-destruction.  
12.  On 24 February 1971, a final DD Form 1300 was submitted by order of the Secretary of the Army.  This form shows the FSM died on 1 December 1970, as a non-battle casualty, in Vietnam, as a result of an accidental self-inflicted gunshot wound.

13.  The applicant provides an email, dated 3 August 2009, from Mr. A--x S------k who states (some punctuation added): 

To me, well here goes ACCIDENTAL SELF-DESTRUCTION is the army way of saying you killed your self [sic].  Not the way it happened.  I was on my way to guard duty and stop[ped] off to let him know I would not be able to go with him on r&r [rest and recuperation] he was writing a letter to his girl friend.  [I] saw his M-16 had the butt plate crushed it had gotten run over out doing road work that day.  I tried to get him to change guns with me because I had my M-60, didn't need my 16 too.  I am sorry that I just didn't take it from him at least or taken the clip out of it.  His last words to me were he didn't worry about it.  I was on guard after all and I would keep him safe.  I could see his houch [sic] from my guard bunker.  The guy sharing space with him came in and was jacking rounds out of the weapon instead of taking the clip out.  It went off and [FSM] was shot.  They tried to save him [but] the chopper [was] scared to land [as] it was dark [;] they didn't want to take a chance of getting shot down.  By the time we told them we were going to sho[o]t them down if they didn't land, it was to [sic] late [and] he was gone.  I was the weapon expert.  He knew that I should have taken it away.  I am so sorry I let him down.  He would have still been alive if I have just done what I should off [sic].  Just so you know, I got an email last night telling me the guy that did it died two years ago from drugs and alcohol.  I had just found out two years ago how they had listed his death.  I had tried to find family to tell you how it really happened.  I will never for get [sic].  I carry this with me daily just like the guy would tell his wife daily how it was his fault [FSM] died.  I guess now I see why I didn't make it when I tried to kill myself in Sep[tember].  I was ment [sic] to tell you what happened.  Again, I am so sorry I let all of you down.  I loved him like a brother.  [I] never made friends with anyone else the rest of my time there. 

14.  Army Regulation 600-10 (Army Casualty System), in effect at the time, establishes basic policies and outlines responsibilities and procedures for the efficient operation of the Army Casualty System.  Chapter 5 provided for line of duty determinations and investigations.  It states the DD Form 261 will show a finding that is expressed in one of the following terms:  in line of duty; not in line of duty - due to own misconduct; and not in line of duty - not due to own misconduct.  No findings will be shown in reports of investigation pertaining to deaths.  Paragraph 5-19 (interpretation of basic factors) states in:

	a.  Paragraph 19(d)(1), when there is nothing to show whether the death was caused by accidental or intentional self-destruction, substantial evidence of intentional self-destruction is required to overcome the presumption that accident rather than intentional self-destruction was the cause of the death.  The unintentional taking of one's own life through gross negligence or simple negligence will be termed as accidental self-destruction.  

	b.  Paragraph 19(d)(2), when there is reasonable doubt whether death was caused by intentional self-destruction, determination will be made by inquest (see paragraph 3-30). 

	c.  Paragraph 19(d)(3), an investigation of intentional self-destruction will necessarily include a determination of whether the decedent was mentally sound at the time of the act.  The question of sanity is one of fact, the correct resolution of which is dependent on a searching inquiry into the character, behavior, and personal relationships of the decedent.  Although the mere fact of self-destruction is not alone sufficient to overcome the legal presumption that every person is sane and intends the natural and probable consequences of his acts, any affirmative evidence that the member was so mentally unsound as to be unable to realize the direct physical or moral consequences of his act, or having such realization was unable to refrain from the act, overcomes the presumption.  In cases where no reasonably adequate motive for self-destruction is supplied by the evidence, a finding of mental unsoundness will be made. 

	d.  Paragraph 19(d)(4), if the decedent is determined to be mentally unsound, the investigation should be expanded to determine whether his mental unsoundness existed prior to service or was aggravated by service, or was due to own misconduct.

15.  Army Regulation 15-185 (ABCMR) prescribes the policies and procedures for correction of military records by the Secretary of the Army, acting through the ABCMR.  The ABCMR considers individual applications that are properly brought before it.  In appropriate cases, it directs or recommends correction of military records to remove an error or injustice.  The ABCMR will decide cases on the evidence of record.  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.



DISCUSSION AND CONCLUSIONS:

1.  The available evidence shows the FSM was performing duties of night duty driver on 1 December 1970.  There were three other Soldiers on duty in the unit Orderly Room: the Company Duty NCO, the charge of quarters, and the Soldier guarding the safe in the Executive Officer's office.  Around midnight, the FSM and the guard were in the office while the other Soldiers conducted a routine check of the unit area.   

2.  The available evidence also shows the FSM volunteered to guard the safe while the guard used the restroom.  The guard had been out of the office for probably one minute when he heard a shot.  He, the Company Duty NCO, and the charge of quarters returned to the office immediately and found the FSM on the floor with a gunshot wound and with his assigned weapon nearby.  The NCO summoned an ambulance that took the FSM to the 24th Evacuation Hospital where he was pronounced dead due to a self-inflicted rifle bullet.  

3.  An investigation was conducted by the IO who interviewed all three individuals.  The IO rendered his report and the report was reviewed by the appointing authority and reviewing authority, and subsequent to a legal review for legal sufficiency, was finally approved on behalf of the Secretary of the Army.  The resulting Report of Casualty listed the casualty status as an accidental self-inflicted gunshot wound.  

4.  The regulation in effect at the time stated that when there is nothing to show whether the death was caused by accidental or intentional self-destruction, substantial evidence of intentional self-destruction is required to overcome the presumption that accidental rather than intentional self-destruction was the cause of the death.  The unintentional taking of one's own life through gross negligence or simple negligence will be termed as accidental self-destruction.  Based on the available evidence, it appears the DD Form 1300 correctly listed the circumstances surrounding the death – accidental self-destruction (not intentional self-destruction; i.e., suicide). 

5.  The email provided by Mr. A--x S------k appears to be sincere but is rejected.  His statement is neither supported by any evidence and is based on his memories of events that occurred some 40 years earlier.  Unlike this email, the witness statements from the three individuals were prompt, timely, fresh, and relevant.  Additionally, the facts and circumstances were reviewed by various individuals in the chain of command, all the way up to the Department of the Army level.  

6.  The Board decides cases on the evidence of record and begins its consideration of each case with the presumption of administrative regularity.  The Board is not an investigative agency and the applicant has the burden of proving an error or injustice by a preponderance of the evidence.  Therefore, in the absence of additional credible evidence to support the applicant's contention, there is insufficient evidence to change the FSM's record. 

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)                                         AR20130005206



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ABCMR Record of Proceedings (cont)                                         AR20130005206



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