IN THE CASE OF:	  

		BOARD DATE:	  2 September 2014

		DOCKET NUMBER:  AR20130021794 


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 father of the deceased former service member (FSM), requests reconsideration of his earlier request for correction of the FSM's military records to show his date of release from active duty as 12 February 2012.  He also implies that he wants a line of duty (LOD) investigation processed.

2.  The applicant states he believes the Nebraska Army National Guard (NEARNG) did not perform its required duties and responsibilities regarding a line of duty investigation related to the FSM's death.  He further states that this Board denied his earlier request to change the FSM's DD Form 214 (Certificate of Release or Discharge from Active Duty) to show he was REFRAD on 
12 February 2012 vice 9 February 2012.  He argues that the evidence he has provided with this application will substantiate his assertions and support his request.  The applicant further states that the FSM on 12 February 2012, the date of his death, was an active drilling member of the NEARNG.  He was assigned to the 192nd Military Police Detachment, 402nd Military Police Battalion.  He was not assigned, attached, or otherwise affiliated with Fort Leonard Wood, Missouri.  

3.  The applicant provides copies of:

* Tab A: Chronology of Events
* Tab B: National Guard Bureau (NGB) Memorandum, Line of Duty Report, dated 10 June 2013
* Tab C: Joint Forces Headquarters, Nebraska Memorandum, Line of Duty Determination, dated 1 April 2013, with 8 enclosures
* Tab D: Outpatient Medications Listing Report, dated 7 November 2013
* Tab E: Chronological Record of Medical Care, dated 9 May 2012
* Tab F: 192nd Military Police Detachment Training Schedule for Period 5, Fiscal Year 2012
* Tab G: Orders 133-733, Military Department of Nebraska, dated 13 May 2011
* Tab H: Orders 189-174, Military Department of Nebraska, dated 8 July 2011
* Tab I: Army Board for Corrections of Military Records (ABCMR) Memorandum, AR20120008216, dated 12 December 2012
* Tab J: Correspondence of the applicant, dated 11 April 2012
* Tab K: Conversation Records with four different individuals
* Tab L: Joint Forces Headquarters Nebraska Memorandum, Death Gratuity, dated 26 April 2013
* Tab M: NGB Memorandum, Advisory Opinion, dated 21 May 2012
* Tab N: Correspondence of the applicant, dated 31 May 2012
* Tab O: ABCMR Memorandum dated 24 May 2012
* Tab P: 402nd Military Police Battalion Memorandum, dated 15 November 2013
* Tab Q: A DA Form 1379-E (U.S. Army Reserve (USAR) Components Unit Record of Reserve Training) dated 12 February 2012
* Tab R: NEARNG Memorandum, Excused Absence of FSM, dated          18 November 2012
* Tab S: A DA Form 1379-E, dated 12 February 2012
* Tab T: A DA Form 2823 (Sworn Statement) dated 19 November 2013
* Tab U: Orders 093-741, Military Department of Nebraska, dated 2 April 2012
* Tab V: "DJMS-RC" Military Master Pay Account (MMPA) dated               19 December 2011
* Tab W: A DA Form 2823, dated November 2013
* Tab X: Statement from a major, dated 26 November 2013
* Tax Y: Mileage Report, Defense Table of Official Distances (This tab and document were not in the applicant's binder when received.)

CONSIDERATION OF EVIDENCE:

1.  Incorporated herein by reference are military records which were summarized in the previous consideration of the applicant's case by the ABCMR in Docket Number AR20120008216, dated on 11 December 2012.

2.  Many of the documents provided by the applicant with this application are dated after the Board first considered this issue.  As such, they now need to be considered by the Board.

3.  The original ROP stated that the FSM had been ordered to active duty for training commencing on 10 November 2011.  He was REFRAD on 9 February 2012 upon completion of his training.  He had accrued 4.5 days of leave which should have been paid in a lump sum to him at the time of his REFRAD.  After traveling to his father's home and prior to reporting back to his Reserve unit, the FSM died on 12 February 2012.  The applicant had requested that the FSM's records be corrected to show he used the accrued leave that was not paid.  This request was made so that the FSM could be shown to have died while still on active duty.  This request was not be granted because what was done was not in error or unjust.  The ROP also discussed a significant lack of evidence which included Line of Duty Report, Autopsy, and pay records.  The Board determined that there was no error or injustice in what the Army did and denied the applicant's request.

4.  The applicant has provided a memorandum from the Chief, Personnel Division, NGB, subject: Line of Duty Report Administrative Closure for the FSM, dated 10 June 2013.  This memorandum states that upon review of the original ROP discussed above, and consultation with this Board and with the U.S. Army Human Resources Command, it was determined that the NGB could not process an LOD investigation for the FSM because he was not in a duty status.  Non-duty deaths are not reportable.  It appears this determination was based on an investigating officer's finding that the FSM had been released from active duty and had returned home from training prior to his death on 12 February 2012.

5.  Army Regulation 635-5 (Separation Documents), as then in effect, prescribed the separation documents prepared for Soldiers upon retirement, discharge, or release from active military service or control of the Army.  It established standardized policy for the preparation of the DD Form 214 and states the DD Form 214 is a synopsis of the Soldier's most recent period of continuous active duty.  It provided a brief, clear-cut record of active Army service at the time of release from active duty, retirement, or discharge.

6.  Army Regulation 600-8-4, paragraph 1-7 (Chief, NGB), states the Chief, NGB, is responsible for the LOD investigation process within the ARNG.  

	a.  Paragraph 2-2f (Reasons for Conducting LOD Investigations) states that in determining whether a veteran or his or her survivors or family members are eligible for certain benefits, the Department of Veterans Affairs (VA) makes its own determinations with respect to an LOD.  These determinations rest upon the evidence available.  Usually this consists of those facts that have been officially recorded and are on file within Department of the Army, including reports and LOD investigations submitted in accordance with the provisions of this regulation.  Statutes governing these benefits generally require that a disabling injury or death be service connected, which means the disability was incurred or aggravated in the LOD (Title 38, U.S. Code, section 101).  The statutory criteria for making such determinations are in Title 38, U.S. Code, section 105.

	b.  Paragraph 2-3c (Requirements for LOD Investigations), states investigations can be conducted informally by the chain of command where no misconduct or negligence is indicated, or formally where an investigating officer is appointed to conduct an investigation into suspected misconduct or negligence.  A formal LOD investigation must be conducted when requested or directed for other cases.

	c.  Paragraph 3-1 (General), states the unit commander will conduct an informal LOD investigation when the circumstances warrant or require one.

DISCUSSION AND CONCLUSIONS:

1.  The applicant requests reconsideration of his earlier request for correction of the FSM's military records to show he died while still on active duty.  He also wants an LOD investigation processed.  He contends that the NEARNG failed to perform its required duties and responsibilities regarding an LOD.

2.  The available evidence including a finding by an LOD investigating officer showing that the FSM had been released from active duty and had returned home from training prior to his death on 12 February 2012.  Furthermore, the evidence shows that the applicant had completed his training and was REFRAD on 9 February 2012.  Accordingly, there is no apparent error or injustice that requires correction.

3.  The available evidence further shows that the NGB has reviewed the LOD issue and determined the FSM was not in a duty status at the time of his death.  Because non-duty deaths are not reportable, a LOD investigation could not be processed.

4.  Each document provided by the applicant with this case was carefully reviewed.  Unfortunately, none of these documents support changing the applicant's dates of active duty service.

5.  Furthermore, there are no provisions for authorizing leave status for the FSM to cover the period between when he was released from active duty and when he died 3 days later.

6.  The original ROP stated that a significant body of evidence was not available for review, implying that had such documents as an LOD report, autopsy, and pay records could have been sufficient for making a favorable determination in this case.  Such is not the case.  While those documents provide a clearer understanding of the circumstances surrounding the FSM's death, they do not change the fact that he died after being REFRAD.

7.  In view of the above, the applicant's request should be denied.

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 to amend the decision of the ABCMR set forth in Docket Number AR20120008216, dated 11 December 2012.




      _______ _   __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)                                         AR20130021794





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ABCMR Record of Proceedings (cont)                                         AR20130021794



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