IN THE CASE OF:	  

		BOARD DATE:	  23 September 2014

		DOCKET NUMBER:  AR20140002929 


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 former service member (FSM), requests correction of the FSM's record to show his death was found to be in the line of duty (ILD).  

2.  She states:

	a.  The FSM died in November 2010 and left behind three children.  He had been diagnosed with chronic, severe post-traumatic stress disorder (PTSD), and he was trying to get long-term rehabilitation.  His death was not due to willful neglect.  He was not mentally sound at the time of his death.  

	b.  The FSM was a decorated Soldier who had received many awards, including the Bronze Star Medal.  He was a recruiter for 4 years, and he was named top recruiter of the southeast region because he believed in his country and the honor it was to fight for it.  

	c.  At the time of his death, he had served for 19 years and had completed three tours in Iraq.  He came home from his first deployment physically, but he was never again the same mentally.  He struggled with night terrors and survivor guilt, and he was constantly looking over his shoulder for something bad.  He was not the man she married.  He had lost his best friend of 10 years in combat and he helped save the lives of two Soldiers who lost their legs in explosions.  He watched 52 children blow up right before his eyes, and that vision remained with him until his death.  

	d.  The FSM self-medicated to deal with his issues.  On two occasions, he almost died from this.  He was sent to short 28-day periods of rehabilitation, which was all the time he was allowed.  One time, he deployed after 3 weeks when he had been told he would receive 6 months of intensive outpatient rehabilitation.  He was shunned by his superiors for asking for help. 

	e.  The Army diagnosed him with chronic, severe PTSD, and he was to be medically discharged the day of his death.  The Department of Veterans Affairs (VA) had approved disability for his condition.  He was planning on entering an extensive long-term inpatient program, but he never had the chance.  On 19 November 2010, he died as a result of "huffing." 

	f.  Now she is left to care for their three children on her own with no help from the Army.  They were denied all benefits due to the FSM's "willful neglect," although two investigators, a psychologist, and an attorney on behalf of the military all said he was of "unsound mind at the time of his death," and his death should be ruled ILD.  She is at a loss as to how the country and the military he so dearly loved could turn their backs on his children and wife after his death.  

	g.  His death was deemed ILD by the VA after the case was reopened for another evaluation.  A review of his records will show that he was mentally unsound at the time of his death due to chronic, severe PTSD.  As much as the military is promoting help for our Soldiers, let's not forget those who suffered before.  Her husband was a good man who at any time would put his own life in danger to save his fellow Soldiers.  Give him his honor back and find his death to be ILD.  

3.  She provides:

* letter from the Chief, Casualty and Mortuary Affairs Branch, U.S. Army Human Resources Command (HRC)
* memorandum, subject:  LD Investigation Findings and Recommendations for Death of [FSM]
* DD Form 261 (Report of Investigation - LD and Misconduct Status)
* memorandum, subject:  Legal Review of LD Investigation - [FSM]
* Enlisted Record Brief (ERB)
* AHRC Form 1569 (Transcript of Military Record)
* letter from the Army Review Boards Agency (ARBA)

CONSIDERATION OF EVIDENCE:

1.  On 21 January 1992, the FSM enlisted in the Regular Army.  After completing initial entry training, he was awarded military occupational specialty 19K (M-1 Armor Crewman).  A review of his records show he also served as a recruiter.  He continued his service through reenlistments.  Effective 1 December 2005, he was promoted to sergeant first class/E-7, which was the highest grade he held.

2.  His awards include the Bronze Star Medal (for service in Iraq in 2006 and 2007), Meritorious Service Medal, and multiple awards of the Army Commendation Medal and Army Achievement Medal.  

3.  His Noncommissioned Officer Evaluation Report (NCOER) for the period ending 31 January 2010 shows his rater marked the "NO" block for each item in Part IVa (Army Values) (loyalty, duty, respect, selfless-service, honor, integrity, and personal courage).  His rater stated the FSM:

* had shown continued lack of focus and dedication that resulted in multiple relapses in substance abuse rehabilitation
* continued to fail at substance abuse rehabilitation despite multiple attempts by the unit and command
* continued his substance and alcohol abuse
* failed to be consistently present for duty
* failed to maintain military bearing having been found multiple times passed out from substance abuse during the duty day
* failed to be present for Army Substance Abuse Program (ASAP) and psychological appointments
* was "a multiple ASAP failure"

4.  The NCOER shows his rater rated his overall potential for promotion and/or service in positions of greater responsibility as "Marginal."  His senior rater rated his overall performance and his overall potential for promotion and/or service in positions of greater responsibility as "Poor."

5.  An ERB, dated 12 May 2010, shows he had no limitations for physical profile rating factor "S" (psychiatric).  

6.  A State of Texas Certificate of Death shows the FSM died on 19 November 2010 as a result of difluoroethane toxicity.  

7.  A DD Form 261, approved on 6 June 2011, shows an investigation of the FSM's death found:

* he died as a result of "inhalation of Dust Off canned air contents"
* the medical diagnosis was difluoroethane toxicity
* he was present for duty and his death was not caused by intentional misconduct or neglect
* he was not mentally sound
* his death was ILD

8.  In a memorandum, subject:  LOD Determination (Overturn) for [FSM], dated 19 September 2011, the Director, Casualty and Mortuary Affairs Operations Center, HRC, stated that after a thorough administrative review of the FSM's LOD investigation, they changed the finding of ILD to not ILD (NLD) - due to own misconduct (DOM).  The memorandum states:

	a.  The autopsy report indicated the FSM died of difluoroethane toxicity and the manner of death was accidental.  The investigating officer (IO), appointing authority, and final approval authority all concluded the FSM's death was ILD due to a mental health assessment that opined the FSM was of unsound mind.  The evidence supported a different conclusion.

	b.  The FSM had a history of abusing difluoroethane, and according to a clinical psychologist, there was evidence that his substance abuse existed prior to service.  There was no evidence that the FSM intended to commit suicide, rather he was continuing his substance abuse behavior to the point that he was considered a rehabilitation failure and was cleared for administrative action under Army Regulation 635-200 (Active Duty Enlisted Administrative Separations), chapter 9 (Alcohol or Other Drug Abuse Rehabilitation Failure).  

	c.  Army Regulation 600-8-4 (LD Policy, Procedures, and Investigations), Appendix B (Rules Governing Line of Duty and Misconduct Determinations), Rule 3 states, "Injury, disease, or death that results in incapacitation because of the abuse of alcohol and other drugs is not in line of duty.  It is due to misconduct.  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.  The Soldier may have had a pre-existing condition that caused increased susceptibility to the effects of the drug does not excuse the misconduct."  

9.  The FSM's complete service medical records are not available for review.  There is no evidence in his Official Military Personnel File indicating he had been diagnosed with PTSD.  

10.  The applicant provides a memorandum, subject:  LD Investigation Findings and Recommendations for Death of [FSM], dated 18 May 2011, showing an IO found that, on or about 19 November 2010, the FSM was discovered deceased by civil authorities at his off-post residence due to difluoroethane toxicity, a key element in canned air inhalation (i.e., "huffing").  Civil authorities found no evidence of foul play and deemed the death to be accidental.  
	a.  The IO found substantial evidence showing the FSM had a history of substance abuse.  In June 2007, he redeployed early from Iraq due to ulcers caused by suspected huffing and PTSD.  The FSM never underwent PTSD treatment. 

		(1)  In January 2009, he was caught huffing by brigade rear detachment personnel resulting in 3 weeks of in-patient treatment at a rehabilitation center.  

		(2)  In August 2009, while deployed to Iraq, he was again caught huffing by the brigade operations sergeant major and admitted for in-patient treatment for 2 weeks at a combat support hospital.  He was then evacuated from theater to undergo psychological evaluation at Landstuhl Medical Center in Germany for 1 week.  As a result of the psychological evaluation, he redeployed early and was admitted for in-patient treatment at a rehabilitation center in San Antonio, TX.

		(3)  In November 2009, he had a relapse upon completion of in-patient treatment.  His father caught him huffing in his personal vehicle behind a Wal-Mart.  He was returned to the rehabilitation center.

		(4)  On 30 December 2009, civil authorities responded to an emergency call at his home.  He was taken to an emergency room for possible suicidal ideation and inhalant abuse.  The emergency room found he was not suicidal and released him to his unit.  

		(5)  In January 2010, his unit initiated a Warrior Transition Unit packet due to his medical and behavioral history.  The packet was not accepted, and the unit initiated administrative discharge paperwork.

		(6)  On 24 March 2010, he was arrested by civil authorities for driving while intoxicated and possession of inhalants with intent to use.  

		(7)  He was reduced from SFC/E-7 to staff sergeant/E-6 by sentence of court-martial.  He had entered a plea of guilty to huffing in Iraq.  

		(8)  Between July and November 2010, he was preparing to transition out of the Army by being medically retired.  His terminal leave was to begin on 20 November 2010.  Unfortunately, he was found dead in his home one day before his terminal leave date.  

	b.  The IO found that, based on the facts and "medical behavior review," the FSM had a well-documented history of substance dependence prior to and during his enlistment in addition to marital problems and "deployment-oriented Chronic PTSD."  The IO found his actions were characteristic of well-established simple, not willful, negligence.  

	c.  Based on the evidence, the IO recommended the FSM's death be found ILD and not due to his own misconduct in accordance with Army Regulation 
600-8-4, paragraph 2-6 (Standards applicable to LD determinations), paragraph 4-11 (Mental responsibility, emotional disorders, suicide, and suicide attempts), and Appendix B.  

11.  The applicant provides a memorandum, subject:  Legal Review of LD Investigation - [FSM], dated 6 July 2011, showing an attorney-advisor at HRC advised the Chief, Casualty and Mortuary Affairs, that he found the original LD finding to be legally supportable.  He advised that if the Chief, Casualty and Mortuary Affairs, agreed that the FSM was mentally unsound, his death could be found to be ILD.  He further advised that if the FSM was not believed to be mentally unsound, his death should be considered misconduct and NLD-DOM.

12.  The applicant also provides a letter, dated 7 March 2012, to her from the Chief, Casualty and Mortuary Affairs Branch.  The letter informed the applicant that a final determination had been made that the FSM's death was NLD based on evidence included in the investigation and the autopsy report.  The letter further informed her that because adverse findings in LD cases can result in the loss of certain benefits, she should seek legal assistance if she desired to contest the finding.  She was advised that she could submit an appeal to HRC and to ARBA.  She was encouraged to apply for VA benefits regardless of the LD determination and informed that the VA would make an administrative decision by reviewing service treatment records, personnel records, etc.  

13.  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 2-6 states:

		(1)  Injury, disease, or death proximately caused by the Soldier’s intentional misconduct or willful negligence is NLD-DOM.  Simple or ordinary negligence or carelessness, standing alone, does not constitute misconduct.

		(2)  An injury, disease, or death is presumed to be ILD unless refuted by substantial evidence contained in the investigation.

		(3)  LD 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.

		(4)  No distinction will be made between the relative value of direct and indirect evidence.  In some cases, direct evidence may be more convincing than indirect evidence.  In other cases, indirect evidence may be more convincing than the statement of an eyewitness.  The weight of the evidence is not determined by the number of witnesses or exhibits but by the IO and higher authorities accomplishing the following actions – 

* considering all the evidence
* evaluating factors such as a witness’s behavior, opportunity for knowledge, information possessed, ability to recall and relate events, and relationship to the matter to be decided
* considering other signs of truth

		(5)  The rules in appendix B will be considered fully in deciding LD determinations. These rules elaborate upon, but do not modify, the basis for LD determinations.

	b.  Paragraph 4-11 states a medical 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 ILD unless they existed before entering the Service and were not aggravated by military service.  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 4-18 states the Commanding General, HRC, acting for the Secretary of the Army may at any time change a determination made under this regulation.  The correct conclusion based on the facts must be shown.

	d.  Appendix B 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.
		(1)  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.

		(2)  Rule 2 states mere violation of military regulation, orders, or instructions, or of civil or criminal laws, if there is no further sign of misconduct, is no more than simple negligence.  Simple negligence is not misconduct. Therefore, a violation under this rule alone is not enough to determine that the injury, disease, or death resulted from misconduct.  However, the violation is one circumstance to be examined and weighed with the other circumstances.

		(3)  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 evidence of record does not support the applicant's request for correction of the FSM's record to show his death was found to be ILD.  

2.  The evidence of record clearly shows the FSM had a history of substance abuse and died as a result of difluoroethane toxicity.  Although it appears he had chronic PTSD, in accordance with the governing regulation the presence of this psychiatric condition should not have been a factor in the original determination.  Army Regulation 600-8-4, Appendix B, Rule 3 effectively precludes a finding of ILD in this case, and the appropriate official at HRC later changed the original determination to NLD-DOM, which is the correct conclusion based on the facts. 

3.  It is understood that the finding of NLD-DOM has resulted in the applicant's loss of benefits she may have received under other circumstances.  However, based on the evidence in this case, there is no basis for granting the requested relief.  



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)                                         AR20140002929



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ABCMR Record of Proceedings (cont)                                         AR20140002929



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