IN THE CASE OF:	  

		BOARD DATE:	  29 July 2014

		DOCKET NUMBER:  AR20130015977 


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, in effect, correction of the FSM's military records to show that his death was "in line of duty (ILD)" instead of "not in line of duty-due to own misconduct (NLD-DOM)."

2.  The applicant states:

* the FSM's records show a determination of willful misconduct, which is erroneous and should be corrected
* there was no willful misconduct in this case, only temporary alleviation of stress due to repeated deployments, family separation and untreated 
post-traumatic stress disorder (PTSD)
* the FSM suffered from PTSD that could have been treated
* the FSM displayed signs of depression 
* police records, a U.S. Army Criminal Investigation Command (also known as CID) investigation, and the autopsy show the end result of the FSM's death and do not address the root cause
* there was no mention of intervention by his chain of command

3.  The applicant provides:

* DA Form 2166-7 (Noncommissioned Officer Evaluation Report (NCOER)), for the period ending June 1998
* DA Form 2166-8 (NCOER) for the period ending April 2008
* DD Form 2807-1 (Report of Medical History), dated 8 April 2009
* DD Form 2697 (Report of Medical Assessment), dated 8 April 2009
* DD Form 2808 (Report of Medical Examination), 14 April 2009
* DA Form 2173 (Statement of Medical Examination and Duty Status), dated 21 July 2010
* Columbus Police Department (CPD) Incident Report, dated 7 July 2010
* DD Form 1300 (Report of Casualty), dated 7 July 2010
* CID Report of Investigation
* CID memorandum, dated 30 September 2010
* State of Georgia Death Certificate, dated 30 September 2010
* legal review memorandum, dated 17 November 2010
* DD Form 261 (Report of Investigation Line of Duty and Misconduct Status), dated 24 November 2010
* a memorandum from the Chief, Casualty and Mortuary Affairs Branch, dated 16 December 2010
* a letter from the Freedom of Information Act Office, U.S. Army Human Resources Command (HRC), dated 5 January 2011
* six news articles from various sources pertaining to the dangers of "huffing"
* three news articles from various sources pertaining to PTSD
* six newspaper articles pertaining to Army Suicides and Mental Health
* 15 pages from the Military Law Review Volume 204 titled "A Catch-22 for Mentally-Ill Military Defendants:  Plea Bargaining Away Mental Health Benefits"
* two pages from Title 38, U.S. Code, Section 105 - LOD and Misconduct

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 enlisted in the Regular Army on 17 October 1990 and he held military occupational specialty 21B (Combat Engineer).  He was assigned to the Stryker Bradley Instructional Company (SBIC), 1st Battalion, 29th Infantry Regiment, Fort Benning, GA, as a Stryker Instructor at the time of his death.  

3.  A DA Form 2166-7 (Noncommissioned Officer Evaluation Report (NCOER)) for the period April 2000 through March 2001 shows the applicant deployed to Bosnia, where he performed duties as a team leader.

4.  A DA Form 2166-8 (NCOER) for the period January 2003 through December 2003 shows the applicant deployed to Iraq, where he performed duties as a squad leader.

5.  By memorandum, dated 30 December 2008, the Chief, Army Substance Abuse Program (ASAP), Fort Benning, GA, notified the FSM’s commander that the FSM required a medical review officer determination in response to a positive urinalysis test for oxycodone and oxymorphone.  A mandatory appointment was made for 7 January 2009 with the Medical Review Officer, at the Martin Army Community Hospital to determine if the tested positive urinalysis was for legal or illegal use.  

6.  A DA Form 4856 shows he was counseled on 9 January 2009 for being positive on a urinalysis test for oxycodone and oxymorphone.  It was the FSM's second positive urinalysis test, the first was for expired medication in May 2008.  At that time he was command referred to ASAP.  

7.  A DA Form 2627, dated 21 January 2009, shows nonjudicial punishment (NJP) was imposed against the FSM for wrongful use oxycodone and oxymorphone, a Schedule II controlled substance.  His punishment consisted of reduction to E-5, forfeiture of $1,464 pay per month for 2 months, restriction for 45 days (both suspended), to be automatically remitted if not vacated by 18 July 2009, and extra duty for 45 days.  

8.  On 7 July 2010, he died of what was later described as toxic effects of difluoroethane.  According to various websites, computer duster cans are the most commonly abused inhalant used for "huffing."  The duster cans contain the chemicals tetrafluoroethane or difluoroethane.  The duster can is inhaled directly or sprayed into a bag and inhaled.  The inhaled gas quickly enters the bloodstream through the lungs, where it affects the brain and other organs.  Huffing is a common term for inhalant abuse.  Effects from huffing can be mild or can be severe and even lead to death.  


9.  On 7 July 2010, a DA Form 2173 was initiated by the Commander, Martin Army Community Hospital, Fort Benning, GA.  

	a.  This form shows:

* the FSM failed to show up for physical training (PT)
* his unit dispatched Soldiers to his residence
* the FSM was found unresponsive 
* Emergency Medical Services and law enforcement officials were called
* the FSM was found with empty bottles of Oxycontin, Percocet, and             duster cans
* the FSM was pronounced dead at the scene

	b.  Section II (To Be Completed by the Unit Commander) shows in:

* Item 19 (Duty Station) – "Absent with Authority"
* Item 20 (Hour and Date of Absence) – 0600 hours 7 July 2010 to 0750      hours 7 July 2010
* Item 21 (Absence Without Authority Materially Interfered with the                Performance of Military Duties) – is marked "YES" 
* Item 29 (Duty Status at Time of Death if Different from Time of Injury or       Contraction of Disease) – the "Absent Without Authority" block is               marked

10.  A CID Report of Investigation, dated 13 August 2010, shows the FSM accidentally died because of huffing.  The report shows:

	a.  The FSM was discovered in his room on his bed, his vital signs for life were negative.  Detectives from the CPD assigned to investigate the FSM's death found five cans of compressed air in his room with one next to his body, one on the bed, and three on a bedside table.  Prescription Oxycontin and Percocet were discovered in the room and inside the FSM's car.  

	b.  A CID Special Agent conducted a search of the Army Criminal Investigation and Criminal Intelligence database, which revealed the FSM was in 
the Alcohol and Drug Abuse and Prevention Control Program (ADAPCP) and the FSM was the subject of CID Report of Investigation XXXX-XXXX-CIDXXX-
61893 for testing positive for oxymorphone and oxycodone during a unit urinalysis.

	c.  The initial autopsy conducted by a medical examiner from the Georgia Bureau of Investigation disclosed no trauma other than a superficial abrasion to the FSM's leg.  The medical examiner stated that the neck was completely normal and the hyoid was intact and the volatile toxicology, which should show the presence of chlorofluorocarbons, was still pending.  At that time, everything was pointing to accidental as a manner of death.

11.  A State of Georgia Death Certificate, dated 30 September 2010, shows a coroner pronounced the FSM dead on 7 July 2010.  The autopsy showed the immediate cause of death was toxic effects of difluoroethane and the manner of his death was ruled accidental.

12.  On 8 November 2010, a DD Form 261 was initiated and completed by an investigating officer (IO).  The form shows the FSM died at 0750 hours, on 7 July 2010, in Columbus, GA, after sustaining an accidental death from huffing compressed air.  The medical diagnosis was that of toxic effects of difluoroethane. 

	a.  The IO remarked that the totality of the events leading to the FSM's death indicated his death was caused due to his conscious decision to inhale the 
compressed air.  Said decision showed blatant as well as willful misconduct on the FSM's part.  Therefore, he ruled the FSM's death as being NLD-DOM.  
	
	b.  The appointing authority, an officer of the 197th Infantry Brigade, approved the findings on 24 November 2010. 

	c.  The final approving authority approved the IO's findings of NLD-DOM on behalf of the Secretary of the Army.
	
13.  On 17 November 2010, the Staff Judge Advocate completed a legal review for the LOD investigation regarding the FSM and determined that the investigation complied with the legal requirements of Army Regulation 600-8-4 (LOD Policy, Procedures, and Investigations).

14.  On 16 December 2010, the Chief, Casualty and Mortuary Affairs Branch, HRC, made a determination that the FSM died on 7 July 2010 as a result of toxic effects of difluoroethane which was NLD-DOM at the time of death.

15.  A USAEREC Form 3 (Statement of Service - Enlisted Personnel) prepared 27 July 2010, shows the FSM completed 19 years, 8 months, and 21 days of creditable active service.

16.  The FSM's military medical records are not available for review.

17.  There is no evidence in the FSM's military service records that show he was diagnosed with or treated for PTSD.
18.  An advisory opinion was obtained from the Office of the Director, Casualty and Mortuary Affairs Operations Center, HRC.  An official stated HRC rendered a LOD determination on the FSM.  The determination was the FSM's death was NLD-DOM.  He added the Fort Benning CID conducted an investigation regarding the death of the FSM.  During a room search conducted by the CPD, five cans of compressed air were found.  The compressed air cans discovered in the FSM's room were indicative of the cause of death listed on the State of Georgia Death Certificate, toxic effects of difluoroethane. 

19.  In an undated letter, the applicant submitted a rebuttal wherein she stated she did not concur with the advisory opinion.  She stated the FSM had a history of very painful arthritis in his right hip and joints and he was prescribed oxycodone for pain.  The FSM showed signs of PTSD and he should have been ordered into psychiatric care.	

20.  The applicant provided a variety of newspaper and magazine articles that focus on the use of inhalants in the Army and related deaths, veterans coping with mental disorder issues after deployments to Iraq and Afghanistan, PTSD and the Department of Veterans Affairs, and the increase in suicides in the Army.

21.  Army Regulation 600-8-4 prescribes policies, procedures, and mandated tasks governing LOD determinations of Soldiers who die or sustain certain injuries, diseases, or illnesses.  

	a.  Paragraph 2-6c states LOD determinations must be supported by substantial evidence and by a greater weight of evidence than supports any different conclusion.  The evidence contained in the investigation must establish 
a degree of certainty so that a reasonable person is convinced of the truth or 
falseness of a fact, considering all direct evidence, that is, evidence based on actual knowledge or observation of witnesses; and/or all indirect evidence, that is, facts or statements from which reasonable inferences, deductions, and conclusions may be drawn to establish an unobserved fact, knowledge, or state of mind.

	b.  Glossary Section II defines simple negligence as the failure to exercise that degree of care, which a similarly-situated person of ordinary prudence usually takes in the same or similar circumstances, taking into consideration the age, maturity of judgment, experience, education, and training of the Soldier.  

	c.  Glossary Section II defines willful negligence as a conscious and intentional omission of the proper degree of care that a reasonably careful person would exercise under the same or similar circumstances.  Willful negligence is a degree of carelessness greater than simple negligence.  Willfulness may be expressed by direct evidence of a member’s conduct and will be presumed when the member’s conduct demonstrates a gross, reckless, wanton, or deliberate disregard for the foreseeable consequences of an act or failure to act. 

	d.  Appendix B of this regulation states in every formal investigation the purpose is to find out whether there is evidence of intentional misconduct or willful negligence that is substantial and of a greater weight than the presumption of ILD.  To arrive at such decisions, several basic rules apply to various situations.

	e.  Appendix B, Rule 1, states injury, disease, or death directly caused by the individual’s misconduct or willful negligence is NLD.  It is due to misconduct.  This is a general rule and must be considered in every case where there might have been misconduct or willful negligence.  Generally, two issues must be resolved when a Soldier is injured, becomes ill, contracts a disease, or dies: 
(1) whether the injury, disease, or death was incurred or aggravated ILD; and (2) whether it was due to misconduct.

	f.  Appendix B, Rule 3 states injury, disease, or death that results in incapacitation because of the abuse of alcohol and other drugs is NLD-DOM.  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.  The fact 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 contends that the FSM suffered from PTSD from repeated deployments and family separation.  However, there is no evidence in the FSM's military service records and the applicant has not provided evidence that shows the FSM was diagnosed with PTSD or depression.

2.  Evidence of record shows the FSM had a mandatory appointment with a medical review officer after testing positive for oxycodone and oxymorphone during a urinalysis test.  At that time the FSM had the opportunity to address his PTSD and/or depression issues with the medical review officer or ASAP officials. 

3.  Since the governing regulation states that any wrongfully drug-induced actions that cause injury, disease, or death are misconduct, and the investigation clearly established misconduct, the FSM's death was found to be NLD-DOM.  Without evidence contradicting these findings, it appears the IO and approval authorities made a proper LOD determination.  Regrettably, there is an insufficient basis for granting the applicant’s 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.



ABCMR Record of Proceedings (cont)                                         AR20130015977





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ABCMR Record of Proceedings (cont)                                         AR20130015977



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