MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:    

	BOARD DATE:            14 April 1999    
	DOCKET NUMBER:   AC97-05915
				   AR1999023442

	I certify that hereinafter is recorded the record of consideration of the Army Board for Correction of Military Records in the case of the above-named individual.

	Mr. Loren G. Harrell		Director	
	Ms. Karen L. Wolff		Analyst	

  The following members, a quorum, were present:

	Ms. Karen L. Wolff		Chairperson	
	Mr. Arthur A. Omartian		Member	
	Mr. Thomas B. Redfern, III		Member	

	The Board, established pursuant to authority contained in 10 U.S.C. 1552, convened at the call of the Chairperson on the above date.  In accordance with Army Regulation 15-185, the application and the available military records pertinent to the corrective action requested were reviewed to determine whether to authorize a formal hearing, recommend that the records be corrected without a formal hearing, or to deny the application without a formal hearing if it is determined that insufficient relevant evidence has been presented to demonstrate the existence of probable material error or injustice.

	The applicant requests correction of military records as stated in the application to the Board and as restated herein.

	The Board considered the following evidence:

	Exhibit A - Application for correction of military records
	Exhibit B - Military Personnel Records (including
	            advisory opinion, if any)

APPLICANT REQUESTS:  That the AWOL period of her son, a former service member (FSM), now deceased, be excused as unavoidable. 

APPLICANT STATES:  That the FSM was listed as being AWOL for 31 days, based on an estimated date of death of 5 May 1990.  In a decision by a VA appeals board of 15 March 1996, based on medical opinion, that board determined that the FSM at the time of his suicide was of unsound mind and not capable of forming the intent required for willful misconduct, and that his death was caused by a chronic, acquired psychiatric disorder in the Army.

EVIDENCE OF RECORD:  The military records of the FSM show:

The FSM enlisted in the Army for three years on 25 February 1986, completed training, and in June 1986 was assigned to an infantry battalion at Fort Carson, Colorado as a mortar gunner. 

On 8 July 1987 the FSM voluntarily extended his three year enlistment to a period of 4 years and 8 months, in order to have a tour in Germany with his dependents, making his new ETS 24 October 1990.

In November of 1987 he was assigned to an armored battalion in Germany.  On 16 November 1987 he requested movement of his wife and three sons to Germany, in order to be with him.

A 21 January 1988 medical record report from the 97th General Hospital in Frankfurt, Germany indicates that the FSM was admitted to this psychiatric ward on 4 January 1988 from the emergency room for ingestion of acetaminophen in a suicide gesture.  Information revealed that the FSM was depressed about his personal failings (compulsive spender), his marriage and his loneliness.  The psychiatric examination indicated that the FSM appeared obtunded, but responded to verbal commands, and within 12 hours was more alert, but was depressed and rather withdrawn.  Memory, judgement, and insight was normal.  He had no thought disorder and denied suicidal or homicidal ideation.  He made a satisfactory adjustment to the ward while hospitalized and his hospital course was one of steady improvement, coming out of his depression, losing any suicidal or homicidal ideation and recovering a desire to return to duty.  He was discharged from the hospital on 11 January 1988, with a follow up in the psychiatric clinic on 2 February 1988.  His condition was diagnosed as an adjustment disorder with mixed disturbance of emotions and conduct (suicide gesture), atypical impulse control disorder (compulsive spending), acetaminophen intoxication (self inflicted), psychosocial stressors, marital and financial trouble.  

The FSM completed an election for servicemen’s group life insurance (SGLI) on 4 May 1989, in which he designated his beneficiary and payment to his beneficiary to be in accordance with law.  

On 9 May 1989 his request to change his tour from a “with dependents” to an “all others” was approved, making his new date of return from his overseas tour (DEROS) 9 May 1990.  His previous DEROS had been 21 November 1990. 

On 29 January 1990 the FSM extended his enlistment for seven months, making his new ETS 24 June 1991.  This extension was in order to complete service remaining requirements for a permanent change of station in the United States.

A 17 July 1990 report of casualty indicates that the FSM died on 5 May 1990 at Grayson, Kentucky as a result of carbon monoxide poisoning (without signs of trauma), and that he was AWOL from 4 April 1990 until the time of his death.  A
previous casualty report of 24 May 1990 indicates that a coroner established the day of death as 4 May 1990; time of death undetermined).

An information paper indicates that the FSM was divorced from his wife on          2 May 1990 in the court of domestic relations in Dayton, Ohio.

An 18 May 1990 entry in a daily log indicates that the unit of the FSM had contacted his mother [date not indicated] when he failed to return to his unit from leave.  His mother stated that she did not know his whereabouts; however, a week later his mother received a call from the FSM stating that he was going to turn himself in to Fort Dix, New Jersey, on 12 May 1990.  His mother contacted the Red Cross on 16 May 1990 to see if the FSM had returned to his unit in Germany, and was informed that he had not. 

On 5 June 1990 the commander of USAEREC, the organization responsible to make a final determination as to whether a person was a deserter at the time of death, made an administrative determination that the FSM was AWOL from        5 March 1990 until the date of his death on 5 May 1990.  That official determined that the FSM did not have the intent to remain away from his unit permanently, and therefore a determination of desertion was not proper.

On 11 October 1990 the 3d Armored Division mental health service conducted a psychological autopsy on the FSM.  That report showed that the FSM had been on active duty for four years, and at the time of his death had been AWOL.  He had been granted leave to return to his home in New Lebanon, Ohio, to handle financial and family matters but had not returned to his unit after his leave had ended.  The health record indicated that the FSM had a lot of potential stress and contained forms and reports related to his psychiatric hospitalization from             4 January 1988 to 11 January 1988 following a suicidal gesture.  After obtaining permission for his wife and three children to join him for his tour in Germany, his wife changed her mind.  The medical report showed that the FSM was depressed about his personal failings (compulsive spender), his marriage, and his loneliness.  While in the hospital he made steady improvement, coming out of his depression, losing any suicidal or homicidal ideation and recovering a desire to return to duty.  

The FSM was described as a bright soldier who had mood swings, a good soldier when he was not preoccupied with marital and financial problems.  There was no history of negative counseling or UCMJ action, however, he would occasionally need to be spoken to about his behavior and his work performance following receipt of letters from his wife.  Several months prior to his AWOL he had begun to concentrate on his responsibility, had been recommended for promotion and had done well before a promotion board.  

The SM was described as a loner who got along fairly well with others, but was hard to know, and often seemed depressed.  He was a very closed person, not hard to talk to, but who wouldn’t open up.  His frequent depression was viewed by his unit members as relating to his marital problems and concern for his three children.

He had been married for over seven years, had been separated from his wife since his assignment to Germany, over two years prior to his death.  She had planned to join him in Germany, but she decided against the move.  She had told him that she did not want to live with him because of his compulsive spending.  Members of his unit stated that she had become involved with another man.
After his death, his wife stated that he was involved with a woman in the New Lebanon area, whom he would see when home on leave.  Among his personal items at the time of his death was a letter from a woman who apparently was ending a relationship with him.  

Subsequent to his psychiatric hospitalization, he was scheduled for follow-up treatment, however, he did to appear for his appointment.

When asked if they were surprised to learn that the FSM had taken his life, the soldiers in his unit responded negatively, citing his previous suicide attempt, his marital and financial problems, his frequent depressed moods, and his failure to return from leave.

The social worker stated that the FSM incurred serious debts because of his financial problems, which led to or exacerbated his marital problems.  The loneliness caused by his separation from his wife and children, his sense of personal failure, led to a feeling of depression and his initial suicide attempt.  He became involved in constant disagreements with his wife over custody and care of his children, believed that his wife was abusing drugs and alcohol and believed she was involved with another man.  He continued to have financial problems, which made support of his family difficult, and was forced to borrow money for his trip home on leave.  He remained past his leave time, and fear of the consequences of his actions probably added to his feelings of depression, hopelessness, and personal failure.  It is probable that he felt that he would be unable to overcome his extensive problems.  It is possible that he was not receiving the emotional support that he hoped for, and his hopelessness may have increased if he was unable to straighten out his problems from a government debt, and if he felt that he would be unable to obtain the hardship discharge or compassionate reassignment he sought while on leave.  While there was insufficient evidence to establish a specific psychiatric diagnosis, there was substantial evidence to suggest that the FSM had a limited capacity to deal with stressful situations, that he felt overwhelmed by his problems.  His chain of command and his peers were aware of his and were extremely reliable and conscious about observing his behavior and supporting him when he was vulnerable.  However, he was not seen as depressed when he began his leave.  He was hopeful and eager to resolve his problems.  The social work officer stated that there was no evidence to suggest that suicide could have been prevented by command intervention.  An emotionally healthy soldier would have been able to adjust to similar stressors, however, at the time of his death, the FSM lacked the capacity to resolve or to adapt to his psychological stress.

A 10 November 1990 CID report of investigation indicated that the body of the FSM was found on 17 May 1990.  Investigation revealed that he had signed into the Grayson (Kentucky) campground on 4 May 1990, and had inquired if there was any place to play tennis and as to whether an acquaintance had made it to the campground.  He apparently was supposed to meet this person but the individual never showed up.  Sometime the next morning he left the campground, and that’s the last time he was observed.  He apparently pulled off on private land adjacent to the federal reservoir land, attempted to partially conceal his vehicle and committed suicide.  In interviews with family members, the CID investigating agent stated that the wife of the FSM had stated that the FSM came home to resolve some family difficulties, then left New Lebanon with his son to go to Fort Knox, Kentucky, in order to get a compassionate reassignment there.  He then went to Fort Benjamin Harrison, Indiana to straighten out his finances because the Army said he owed money, and then went to Fort Dix, New Jersey to see either about a reassignment or a hardship discharge.  He returned home and was there about a week when he left again for Fort Dix to make a prearranged appointment.  She stated that he was in a  good mood when he left. She stated that both she and the FSM were seeing other people (romantically), but she did not know who his girlfriend was, and he was not depressed about his relationship with his wife.  

In an interview with the cousin of the FSM, that individual stated that two weeks prior to the  FSM leaving, the FSM had remarked that he did not have anything to live for; however, she felt he was not truly depressed about anything, and did not take him seriously.  She added that he was making plans to get his life straightened out and his death was a total shock to her.  In an interview with his uncle, that person stated that he too was shocked by the death of the FSM, in that the FSM was eager to see his seven year old son playing baseball, he was working with a member of congress in getting a hardship discharge and was optimistic about the progress, he was proud of being in the Army, and he left New Lebanon in good humor on 29 April 1990.

A review of the finance records of the FSM indicates that the FSM was in debt to the Army for $1,084.25 as a result of being overpaid during his AWOL status, apparently his only debt to the Army.  There were no records available that indicates whether or not he visited the finance records section at Fort Benjamin Harrison.   

In a VA rating decision of 2 July 1991, that agency stated that evidence did not show that the FSM had any psychiatric condition, but he was shown to have reacted to stress with self destructive behavior.  His suicide was held to be the result of his personal situation and not of mental illness.  He was not shown to have any acquired psychiatric disability which would have impaired his ability to distinguish right from wrong, or to have impaired his judgment to a significant degree.  He was not insane.  Basic eligibility to benefits was not established. 

In a VA rating decision of 19 April 1993, that agency determined that the death of the FSM was not service connected, that the cause of death was asphyxia due to carbon monoxide inhalation (self inflicted), (not insane), (willful misconduct).  The decision indicated that the FSM went on leave from 15 February 1990 to             4 March 1990 and was AWOL from 5 March 1990 until the time of his death.  In making this decision, the VA paraphrased much of the information contained in the aforementioned psychological autopsy.  That agency stated, in effect, that the death of the FSM was not in line of duty because he was in an AWOL status at the time of his death.  His act of suicide involved conscious wrongdoing with knowledge or known prohibited action and was therefore willful misconduct.  His suicide act involved deliberate or intentional wrongdoing with knowledge of its probable consequences.  The FSM was depressed over financial and marital problems with the added stressor that he feared disciplinary action as a result of his being in an AWOL  status.  The evidence of record was negative for any psychiatric disorder.  He was found to have an adjustment behavior disorder which was considered a constitutional and developmental disorder and not classified as a disease or injury under applicable legislation.  That agency went on to say, in making this decision, that insanity was placed into issued if suicidal death occurred in service, and the evidence of record did not show that the FSM was laboring under such defective reason, from disease from mind or mental deficiency, as not to know or understand the nature or consequence of his act of suicide or that what he was doing was wrong.   

On 15 March 1996, the VA board of veterans’ appeals found that the applicant, the guardian of the children of the FSM, had submitted a well grounded claim for service connection for the cause of his death, that the preponderance of the evidence established that the FSM had a major depressive disorder at the time of his death, that his suicide was secondary to experiencing a chronic, acquired psychiatric disorder, and that at the time of his suicide he was of unsound mind and not capable of forming the intent required for willful misconduct.  That board made its decision based on the opinion of an independent medical expert (IME) from the vice chair, department of psychiatry, St. Elizabeth’s Medical Center of Boston.  The IME stated that the records were inconclusive with regard to the psychiatric disorders if any of the FSM, in that the discharge summary from his week long hospitalization in January 1988 did not adequately address his mental status, but did describe him as depressed.  The IME stated that his fellow service members were aware of his “mood swings”, and his need for support during times of depression.  Repeated emergency clinic visits for non specific complaints such as back pain, were frequently presenting symptoms for psychiatric disorders, and that it was significant that he had several years without any significant medical attention, until after his discharged from the inpatient psychiatric service.  The IME stated that she could not say with certainty that the FSM suffered from a major depression, but the preponderance of the evidence suggested that that to be the case.  Of significance is the comment that he had compulsive spending, and it was possible that the impulse control disorder was in fact a symptom of bi-polar affective disorder.  The IME stated that taking the sense of all the records, she believed that it was likely that the FSM did indeed suffer from a psychiatric disorder during the period from January 1988 to the time of his death.  At the time of his death he was likely suffering from a major depressive episode.  The IME stated that his mood was unstable throughout 1988-1990 and that it would be appropriate to characterize it as a chronic psychiatric disorder with exacerbations and remissions. The VA board stated that the IME had provided a reasonable explanation as to why the diagnosis of an adjustment disorder as the result of his 1988 hospitalization did not preclude her diagnosis of a chronic depressive disorder and had provided a plausible explanation as to why the service member’s compulsive spending was the manifestation of an acquired psychiatric disorder rather than merely a psychiatric disorder for which service connection could not be granted.  Although the IME was unable to conclusively diagnose a specific psychiatric disorder, she determine there was sufficient evidence to opine that the service member had a chronic acquired psychiatric disorder during service.  That board concluded that an acquired psychiatric disorder was incurred in service, and that his service connected acquired psychiatric disorder caused his death.  Service connection for the cause of his death was granted, and basic eligibility to dependents’ educational assistance was established.  

In an 11 April 1996 information paper concerning reconsideration of Servicemen’s Group Life Insurance (SGLI), an agency in PERSCOM stated that that office had certified that the SGLI of the FSM had been terminated because he was AWOL for over 31 consecutive days, and that that certification completed on 29 June 1990, still stood and would not be certified for payment of SGLI.  His AWOL time would need to be reclassified to an authorized absence or excused as unavoidable in order to recertify.   

In a 15 April 1996 letter, a claim advisor of the Office of Servicemembers’ Group Life Insurance informed a member of the American Legion of Ohio regarding the claim of the mother (the applicant) of the FSM, that the VA determination of entitlement to service connection for the cause of death did not change the duty status of the FSM with the military.  The FSM was AWOL for over 31 days, therefore, the Army Casualty Branch could not certify the case for payment of SGLI.   The claim advisor went on to say that the AWOL time would need to be reclassified to an authorized absence or excused as unavoidable in order for the case to be recertified, and that an application would have to be submitted to this Board in order to reclassify the AWOL time.  

DISCUSSION:  Considering all the evidence, allegations, and information presented by the applicant, together with the evidence of record, applicable law and regulations, it is concluded:

1.  The FSM was on leave from his unit in Germany, and at the expiration of his leave, he did not return to his unit, and was AWOL from 5 March 1990 until his suicide, which was determined to be 5 May 1990.

2.  The FSM was described as a bright soldier who had mood swings, a good soldier when he was not preoccupied with marital and financial problems.  There was no history of negative counseling or UCMJ action.  Several months prior to his AWOL, he had been recommended for promotion and had done well before a promotion board.  
   
3.   While in the 97th General Hospital he made steady improvement, coming out of his depression, losing any suicidal or homicidal ideation and recovering a desire to return to duty.  Subsequent to his release from the psychiatric ward of that hospital in January 1988, the applicant made a number of normal and rationale decisions, completing an election for SGLI, changing his foreign service tour from a “with dependent” , to an “all other” tour, and then extending his enlistment in order to be reassigned to the United States after completion of his tour in Germany.  He apparently was involved in divorce proceedings with his wife, that divorce having taken place on 2 May 1990, three days prior to his death.

4.   While home (either on leave or in an AWOL status), his wife stated that the FSM came home to resolve some family difficulties, then left New Lebanon with his son to go to Fort Knox, Kentucky, in order to get a compassionate reassignment there.  He then went to Fort Benjamin Harrison, Indiana to straighten out his finances because the Army said he owed money, and then went to Fort Dix, New Jersey to see either about a reassignment or a hardship discharge.  He returned home and was there about a week when he left again for Fort Dix to make a prearranged appointment.  She stated that he was in a  good mood when he left.  

5.   His cousin stated that the FSM was making plans to get his life straightened out and his death was a total shock to her.  In an interview with his uncle, that person stated that he too was shocked by the death of the FSM, in that the FSM was eager to see his seven year old start playing baseball, he was working with a member of congress in getting a hardship discharge and was optimistic about the progress, he was proud of being in the Army, and he left New Lebanon in good humor on 29 April 1990.  He contacted his mother, informing her that he was going to turn himself in at Fort Dix on 12 May 1990.   

6.  He signed into a campground one day prior to his suicide, and had inquired if there was any place to play tennis and as to whether an acquaintance had made it to the campground.  He apparently was supposed to meet this person but the individual never showed up.

7.  The VA had determined on two occasions that the FSM did not have any acquired psychiatric disability which would have impaired his ability to distinguish right from wrong, or to have impaired his judgment to a significant degree.  He was not insane.  The evidence of record was negative for any psychiatric disorder.  He was found to have an adjustment behavior disorder.  The VA determined that the cause of his death was not service connected, but willful misconduct as a result of his suicide while in an AWOL status.  The VA reversed its decision only after a second appeal and upon receiving an opinion from an IME who herself stated that the records were inconclusive with regard to the psychiatric disorders if any of the FSM.  She also stated that she could not say with certainty that the FSM suffered from a major depression, but the preponderance of the evidence suggested that to be the case. 

8.  The FSM had some serious problems, both marital and financial, and apparently felt that he could not cope with those problems.  Nonetheless, after his discharge from the hospital in January 1988 and prior to his leave from his unit, a period of over two years, he made some sane and rationale decisions and he was recommended for promotion.  While on leave and/or in an AWOL status, family members attested to his good mood and his optimism.  Based on the information contained in the records, this Board is not convinced that the FSM was insane, suffered from a major depression, or of unsound mind during the time that he was AWOL.  His absence cannot be excused as unavoidable. 

9.  The applicant has submitted neither probative evidence nor a convincing argument in support of her request.   

10.  In order to justify correction of a military record the applicant must show to the satisfaction of the Board, or it must otherwise satisfactorily appear, that the record is in error or unjust.  The applicant has failed to submit evidence that would satisfy the aforementioned requirement.

11.  In view of the foregoing, there is no basis for granting the applicant's request.

DETERMINATION:  The applicant has failed to submit sufficient relevant evidence to demonstrate the existence of probable error or injustice.

BOARD VOTE:

________  ________  ________  GRANT

________  ________  ________  GRANT FORMAL HEARING

___klw__  ___aao__  ___tbr__  DENY APPLICATION

						Loren G. Harrell
						Director

INDEX

CASE ID	AC97-05915/AR1999023442	
SUFFIX		
RECON	YYYYMMDD	
DATE BOARDED	19990414	
TYPE OF DISCHARGE	(HD, GD, UOTHC, UD, BCD, DD)	
DATE OF DISCHARGE	YYYYMMDD	
DISCHARGE AUTHORITY	AR .  .  .  .  .  	
DISCHARGE REASON		
BOARD DECISION	( DENY 	
REVIEW AUTHORITY		
ISSUES         1. 123.01		
2.		
3.		
4.		
5.		
6.