BOARD DATE:	  27 February 2014

		DOCKET NUMBER:  AR20130008552 


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 line of duty (LD) determination in the death of her spouse, a former service member (FSM), be changed to in LD - not due to own misconduct.

2.  The applicant states, in an undated letter, she believes her husband was not of sound mind when he apparently took his own life on 4 September 2006.  She was married to the FSM for 22 years while he served in the Army.  She and her children were denied survivor benefits after her husband died because his death was ruled not in LD.  She knows the crimes he was accused of were so terrible, so contrary to his core character and values, that the man she married could not have committed them if he was in his right mind.

3.  The applicant describes her 25 years with her husband, highlighting both good times and bad times.  She describes the FSM as a man devoted to God, his family, and to his country.  They had worked hard together as a team to raise their children and survive one arduous move after another.  

4.  They had plans for the FSM's retirement and discussed buying property with space for grandkids to play.  They were supposed to grow old together and have grey hair, sit on the porch and enjoy the evenings, and take walks hand in hand.

5.  Prior to his tour in Kuwait, the FSM's life was full of love and commitment to his family and his country.  The applicant concludes that after looking over the FSM's 18 years of military service and seeing the essence and character of the man she was married to, the Board will conclude that the FSM's actions he was accused of committing in Kuwait in 2006, including suicide, were not the actions of a man who was of sound mind.

6.  The applicant provides additional evidence via her counsel.

COUNSEL'S REQUEST, STATEMENT AND EVIDENCE:

1.  Counsel requests the Board overturn the previous finding that the applicant's husband's death was not in LD based on consideration of the substantial new evidence provided with this appeal.

2.  Counsel states:

	a.  The previous ruling precluded the applicant and her children from receiving survivor benefits.  On 4 September 2006, the FSM died from the ingestion of ethanol glycol and his death was ruled a suicide.  He was a lieutenant colonel (LTC) with 18 years and 7 months of active duty military service in the U.S. Army.  The applicant was not informed of the determination until 19 April 2012.  The underlying LD result of investigation has never been made available to the applicant, and as such, it is impossible for her to know definitely what evidence was previously considered in the LD determination.  

	b.  She was not consulted in the course of the original LD investigation and so the information she provides the Board in her letter is substantially new evidence. She is also providing medical treatment records that were forwarded to her through a Freedom of Information Act request after her husband's death.

	c.  The FSM was assigned duties at Camp Arifjan, Kuwait in June 2005 on an accompanied tour, the applicant arrived in November 2005.  His two college aged children also spent time with the FSM in Kuwait.  In May 2006, the applicant returned to the United States for a medical emergency.  Before she returned in late August 2006, the FSM was arrested, confined, and charged with multiple offenses including bribery, solicitation to commit graft, and bigamy.

	d.  One of the more bizarre crimes the FSM was charged with committing is the marriage of an 18 year-old Kuwaiti girl.  This would have required him to convert from his Christian faith to Islam.  After his arrest, the FSM was confined to the Theater Field Detention Facility (TFDF) at Camp Arifjan where he underwent multiple medical examinations to determine his state of mind.  He asked for the assistance of an Islamic chaplain and requested he be provided a prayer rug to facilitate worship of Allah.  While confined he reported hearing evil laughter and voices in his head.  He made several statements indicating he intended suicide, and he was found with contraband with which he apparently intended to commit suicide.

	e.  On 26 August 2006, despite the obvious suicidal threat the FSM posed, his Army-appointed trial defense attorney filed a motion with the part-time military magistrate requesting that the FSM be released from confinement under his own recognizance.  The motion was granted and the FSM was released.  He committed suicide days later by ingesting anti-freeze he had apparently procured from the motor pool.   He was one of three personnel in his logistics office to commit suicide within a three-month span.

	f.  Counsel cites paragraph 4-11 of Army Regulation 600-8-4 (Line of Duty Policy, Procedures, and Investigations).

	g.  It  seems unlikely that the previous ruling considered the evidence of the FSM's medical treatment while he was confined which indicates he was hearing evil laughter and voices during his confinement.  The applicant believes that this newly-discovered evidence strongly supports that the FSM was not of sound mind when he committed suicide.

	h.  The actions of the FSM in the summer of 2006, as well as his apparent suicide, were completely contradictory to the character the FSM had demonstrated over his previous 18 years in the Army and his 22-year marriage to the applicant.  His conversion to Islam, his apparent illegal marriage to an 
18 year-old Kuwaiti girl, and the allegations of bribery and graft that were levied against him represent nothing short of a full frontal assault on everything the FSM believed in and had sacrificed for over the last two decades.  This evidence strongly suggests a severe underlying mental disorder.  

	i.  For these reasons, and after consideration of the substantial new evidence presented in this appeal, the applicant and her family are hopeful that the FSM's death will be ruled in LD because he was not in his right mind at the time of his death.

3.  Counsel provides:

* a letter, dated 19 April 2012, from the U.S. Army Human Resources Command (HRC)
* the applicant's undated letter
* DD Form 458 (Charge Sheet), dated 22 August 2006
* Application for Search Authorization, dated 18 August 2006
* FSM's medical treatment records from 18-26 August 2006
* a Motion for Appropriate Relief (Release From Pretrial Confinement), dated 23 August 2006
* FSM's Final Autopsy Examination Report, dated 30 October 2006
* DD Form 2064 (Certificate of Death (Overseas)), dated 7 September 2006
* an article, dated 19 September 2007, from The New York Times

CONSIDERATION OF EVIDENCE:

1.  The FSM was an LTC assigned to Headquarters and Headquarters Company, Area Support Group, Camp Arifjan, Kuwait.

2.  On 18 August 2006, the FSM was arrested and confined at the TFDF at Camp Arifjan.

3.  On 22 August 2006, court-martial charges were preferred against the FSM for:

* wrongfully soliciting an individual to violate a federal law by offering to disclose contractor bid or proposal information or source selection information before the award of a Federal agency procurement contract to which the information relates if the said individual would pay money to the accused
* four specifications of wrongfully asking from an employee of a contracting company engaged in logistics support to the U.S. Army the sum of 1,000 Kuwaiti Dinars, of a value of about $3,500 with intent to have his influence with respect to an official matter in which the United States was and is interested 
* wrongfully marrying F_____ A_______, having at the time of his said marriage a lawful wife then living, B_____ G________
* wrongfully communicating to Ms. S______ a threat to injure the said Ms. S______ by calling the police to have her arrested for stealing, a charge which he knew to be false
* wrongfully possessing alcoholic beverages
* wrongfully possessing pornographic or sexually explicit photographs
* failing to adequately safeguard secret documents related to national security by leaving them in his vehicle
* failing to adequately safeguard secret documents related to national security by leaving them in his home
* wrongfully receiving gifts from prohibited sources for personal gain
* wrongfully constructing a shank knife from a plastic spoon and possessing the same
* Wrongfully constructing a razor blade weapon from a safety razor cartridge and possessing the same
4.  Medical records submitted by the applicant show:

	a.  On 18 August 2006, the FSM was seen by a senior chief (E8) hospital corpsman (HMCS), U.S. Navy (USN).  The HMCS noted a spoon sharpened into what appeared to be a shank was recovered from the FSM.  The FSM stated he "embarrassed his family and shamed them."  He stated he "has no reason to live."  The FSM stated he threw the shank away and didn't think he could hurt himself.  The HMCS noted the FSM was depressed, overwhelmed, and reported feelings he "let his family down" and they will "no longer love him."  The HMCS indicated he would reassess the FSM's suicidal thinking and level of depression the next day.

	b.  On 19 August 2006, the FSM was seen by the HMCS.  The FSM stated he continued to have periodic suicidal thoughts.  He requested a prayer rug and Koran.  The HMCS noted the FSM was depressed and still having suicidal thought - risk high.  The HMCS indicated he would continue to be monitored and to continue 24-hour direct watch.

	c.  On 19 August 2006, the FSM was evaluated by a USN lieutenant (LT) (O3), the staff psychiatrist, for depression and a mental health screening.  The FSM felt guilt and decreased interests as a result of his current situation.  He denied current and past suicide plan and intent.  The FSM stated his godfather committed suicide when the FSM was 15 years old.  The LT determined he had an adjustment disorder and found him psychiatrically fit for duty.  He stated the FSM was not currently homicidal or suicidal.  He also found the FSM to be responsible for his actions and there was no indication of impaired mental capacity.

	d.  On 20 August 2006, the HMCS noted the FSM spoke about hearing evil laughter more frequently now, not just at night when it was dark.  He reported a fear of talking to his family, but needed to do so.  The HMCS noted the FSM's suicide risk continued to be high and to continue 24-hour watch.

	e.  On 21 August 2006, the HMCS noted the FSM reported continuing feelings of worthlessness with thoughts of "wanting it to be over" and of killing himself.  There was a report that the FSM had obtained a razor blade but the cadre retrieved it.  The HMCS noted that the FSM should be continued on 
24-hour close observation with searches for such items whenever he left his cell.

	f.  On 22 August 2006, the HMCS noted the FSM felt better and was able to divert suicidal thoughts.  His depression was lessening and he improved in his ability to focus on future plans and defer thoughts of suicide.

	g.  On 23 August 2006, the HMCS noted the FSM stated he continued to feel better and he no longer had suicidal thoughts.  Suicide risk was reduced from high to moderate.

	h.  On 24 August 2006, the HMCS noted the FSM felt better and denied suicidal thoughts.  His depression had lifted.  He was not suicidal at that time.

	i.  On 26 August 2006, the FSM was evaluated by the staff psychiatrist.  The LT found the FSM was not currently suicidal or homicidal.  The LT determined the FSM was responsible for his actions and was suitable/fit for confinement.

	j.  On 31 August 2006, the FSM was referred by Chaplain C___ to 
B. G_________, MD in the context of a recent transfer to Camp Virginia, Kuwait in the aftermath of allegations of a Uniform Code of Military Justice violation with a civilian contractor at Camp Arifjan.  The FSM's memory and cognition were intact.  He endorsed dysphoria and anxiety in context of the allegations against him.  He denied suicidal ideations or homicidal indications.  He denied manifestations of psychosis and mania.  Dr. G_________ diagnosed the FSM under Axis I with an occupational problem and an adjustment disorder with depression and anxiety.

5.  On 23 August 2006, the FSM's Army-appointed trial defense attorney filed a motion requesting the FSM be released from confinement under his own recognizance.  The exact date of his release is not shown.  However, on 
31 August 2006, he was seen by a chaplain and a doctor at Camp Virginia.

6.  A DA Form 2173 (Statement of Medical Examination and Duty Status), dated 4 September 2006, reported the FSM was found dead at 1741 hours on 
4 September 2006 in berthing.  In item 19 (Duty Station) of the form the block indicating "absent without authority" is checked.  In item 31 (Formal Line of Duty Investigation Required) the block indicating "Yes" is checked.

7.  A DD Form 2064, dated 2 October 2006, shows the FSM died by suicide from ethylene glycol poisoning on 4 September 2006 at Camp Virginia, Kuwait.

8.  A DD form 1300 (Report of Casualty), prepared 26 October 2006, reports the FSM died from self-inflicted ethylene glycol poisoning on 4 September at Camp Virginia, Kuwait.

9.  The complete LD investigation was not available for review.  A DD Form 261 (Report of Investigation - Line of Duty and Misconduct Status) states the basis for the LD findings were the FSM's death by suicide by ingestion of ethylene glycol.  An LTC was appointed as the investigating officer (IO).  The IO  determined the FSM was absent without authority at the time of his death.  The IO found the FSM's death was not in LD - due to own misconduct.  

10.  On 20 July 2007, a bio-psycho-social review of LD investigation and mental status of the FSM at the time of his death was conducted by Commander (O5),  S_____ G______, Medical  Corps, USN, Mental Health Department Psychiatrist, Mental Health Services, Camp Arifjan, Kuwait.

	a.  The doctor stated the final report of 6 December 2006 by the LD IO recommended a finding of not in LD as the facts did not support a finding that the FSM was unable to either comprehend the nature of his act or control his actions.

	b.  The doctor summarized the charges pending against the FSM and the medical treatment he received while confined at the TFDF from 18 - 24 August 2006.  This included the FSM's intentions to commit suicide when he was initially confined.  The staff psychiatrist diagnosed him with an adjustment disorder and prescribed trazodone at bedtime for sleep.  Upon his release he was seen by a chaplain and another psychiatrist who diagnosed him with occupation problems and an adjustment disorder with depression and anxiety.

	c.  Biologically the FSM was on several medications to include trazodone, neurontin, percocet, motrin, mobic, and flexeril.  The autopsy report specifically ruled out narcotics present in his system; however, he may have taken one or a combination of the other prescribed medications that were not tested on autopsy. Several of the other medications whether alone or in combination with other medication may cause central nervous system side effects such as dizziness, sedation, and confusion.  Another significant biological risk factor for suicide is that when the FSM was 15 years old his grandfather (previously referred to as his godfather) committed suicide which statistically put him at increased suicide risk.

	d.  Psychologically the FSM was under a significant amount of stress at the time of his suicide.  He had voiced suicidal ideations on several of the evaluations and had made plans such as making the shank while at TFDF.  However, he was able to stop himself from going through with the plan.  It was impossible to say what his state of mind was at the time of his suicide; however, had he been under the influence of medications, hearing "evil laughter" or more and feeling overwhelmed with nowhere to turn could have played a deciding factor in his going through with the suicide.  He also reported that he thought of medications as a "weakness" which may indicate that he would not have sought out help or minimized his symptoms at the time of his appointments.

	e.  Socially the FSM was facing potential loss of his social support and career as well as financial problems.  He was at increased risk for suicide due to the long history of family discord, severe conflicts in his personal life, legal trouble, and weak connections to family and community.  He had easy access to lethal means and was living alone in a room on base.

	f.  A conclusive analysis of the FSM's mental status at the time of his suicide is not possible.  However, the FSM had documented signs of depression with significant suicidal thoughts and plans prior to his death.  From the information available, it was the psychiatrist's opinion that the FSM was not mentally sound at the time of his suicide.

11.  On 1 August 2007, the Chief, Case Management, Casualty and Mortuary Affairs Operations Center, HRC approved the finding of not in LD - due to own misconduct in the case of the FSM's death.

12.  Army Regulation 600-8-4 (Line of Duty Policy, Procedures, and Investigations) prescribes policies, procedures, and mandated tasks governing line of duty determinations of Soldiers who die or sustain certain injuries, diseases, or illnesses.  

	a.  When a formal LD investigation is to be conducted, an IO must be appointed in writing.  The IO may be a commissioned officer, warrant officer, or a commissioned officer of another U.S. military service in joint activities where the Army has been designated as the executive agent.  The IO will be senior in grade to the Soldier being investigated, except where the appointing authority determines that it is impracticable because of military exigencies (but not because of mere inconvenience).  The DD Form 261 will be prepared by the IO.

	b.  Paragraph 4–11 states the military treatment facility must identify, evaluate, and document mental and emotional disorders.  A Soldier may not be held responsible for his or her acts and their foreseeable consequences if, as the result of mental defect, disease, or derangement, the Soldier was unable to comprehend the nature of such acts or to control his or her actions.  Therefore, these disorders are considered "in LD" unless they existed before entering the Service and were not aggravated by military service. 

		(1)  LD investigations of suicide or attempted suicide must determine whether the Soldier was mentally sound at the time of the incident.  The question of sanity can only be resolved by inquiring into and obtaining evidence of the Soldier’s social background, actions and moods immediately prior to the suicide or suicide attempt, troubles that might have motivated the incident, and examinations or counseling by specially experienced or trained persons.  Personal notes or diaries of a deceased Soldier are valuable evidence.  In all cases of suicide or suicide attempts, a mental health officer will review the evidence collected to determine the bio-psychosocial factors that contributed to
the Soldier’s desire to end his or her life.  The mental health officer will render an opinion as to the probable causes of the self-destructive behavior and whether the Soldier was mentally sound at the time of the incident.  

		(2)  If the Soldier is found mentally unsound, the mental health officer should determine whether the Soldier’s mental condition was due to the Soldier’s own misconduct. 

		(3)  In cases of suicide or attempted suicide during periods of absence without leave, mental soundness at the inception of the absence must also be determined.

		(4)  An injury or disease intentionally self-inflicted or an ill effect that results from the attempt (including attempts by taking poison or drugs) when mental soundness existed at the time should be considered misconduct.

	c.  Paragraph 4–13 states that for purpose of rendering an LD determination in death cases, a Soldier’s death will be considered to have occurred in LD unless:

		(1)  the death occurred while the Soldier was not serving on active duty, or

		(2)  the death was the result of the Soldier’s intentional misconduct or willful negligence, or

		(3)  the death occurred during a period of unauthorized absence.

DISCUSSION AND CONCLUSIONS:

1.  Although the exact date of his release from confinement is not clear in the available evidence, the FSM was determined to be not suicidal by the HMCS and the staff psychiatrist at the TFDF prior to his release.  

	a.  On 19 August 2006, the staff psychiatrist found the FSM to be depressed because of his current situation.  The FSM denied suicidal ideation at that time.  The psychiatrist diagnosed the FSM with an adjustment disorder, found him psychiatrically fit for duty, and found him to be responsible for his actions and there was no indication impaired mental capacity.

	b.  On 26 August 2006, the FSM was evaluated by the staff psychiatrist.  The LT found the FSM was not currently suicidal or homicidal.  The LT determined the FSM was responsible for his actions and was suitable/fit for confinement.

2.  The psychiatrist who evaluated the FSM on 31 August 2006, after his release from confinement, did not determine the FSM was a suicide risk.  The FSM  denied suicidal ideations or homicidal indications.  He denied manifestations of psychosis and mania.  Dr. G_________ diagnosed the FSM under Axis I with a occupational problem and an adjustment disorder with depression and anxiety.

3.  The LD IO recommended a finding of not in LD - due to own misconduct as the facts of the case did not support a finding that the FSM was unable to either comprehend the nature of his act or control his actions.  In addition, the 
DD Form 261 indicated the FSM  was not present for duty and his absence was without authority.

4.  The psychiatrist conducting the bio-psycho-social review stated the FSM had documented signs of depression with significant suicidal thoughts and plans prior to his death.  The psychiatrist's opinion was the FSM was not mentally sound at the time of his suicide.  However, the psychiatrist did not indicate whether the FSM's mental condition was due to his own misconduct.

5.  In the absence of evidence to the contrary, based on the dates of all of the documents and the date of the final determination by HRC, it must be presumed that all the evidence in the FSM's military service and medical records was available for review prior to the final decision by HRC.

6.  The evidence shows the FSM's depression and anxiety were likely due to his legal problems at the time.  There is no evidence of his having been treated for either of these conditions prior to his being arrested.  The FSM denied any suicidal ideation prior to his release from confinement and shortly after.  Therefore, there is sufficient evidence to support a determination that, while the psychiatrist found him not to be of sound mind at the time of his death, his mental condition was due to his own misconduct.

7.  Therefore, there is no basis for changing the LD determination made by HRC on 1 August 2007.


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)                                         AR20130008552



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ABCMR Record of Proceedings (cont)                                         AR20130008552



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