IN THE CASE OF: BOARD DATE: 14 July 2016 DOCKET NUMBER: AR20150002565 BOARD VOTE: ___x_____ ___x___ ___x____ GRANT FULL RELIEF ________ ________ ________ GRANT PARTIAL RELIEF ________ ________ ________ GRANT FORMAL HEARING ________ ________ ________ DENY APPLICATION 2 Enclosures 1. Board Determination/Recommendation 2. Evidence and Consideration IN THE CASE OF: BOARD DATE: 14 July 2016 DOCKET NUMBER: AR20150002565 BOARD DETERMINATION/RECOMMENDATION: The Board determined the evidence presented is sufficient to warrant a recommendation for relief. As a result, the Board recommends that all Department of the Army records of the individual concerned, including his DD Form 261, be corrected to show the (Former Service Member) FSM's death was "In Line of Duty (LOD)." _____________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. IN THE CASE OF: BOARD DATE: 14 July 2016 DOCKET NUMBER: AR20150002565 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: The applicant, the widow of a deceased former service member (FSM), requests through counsel, for correction of the FSM's record to show his death was "In Line of Duty (LOD)" instead of "Not in LOD - Due to Own Misconduct" through counsel. COUNSEL'S REQUEST, STATEMENT, AND EVIDENCE: 1. Counsel states this is a case where the essential facts are not in dispute. However, the logical and legal conclusions taken from those facts are wrong. The Not in LOD determinations resulting from those erroneous conclusions have caused substantial and unjustified harm to the family of a decorated Soldier. Since the basis of this appeal involves legal issues, it has been prepared on behalf of the spouse and children of the Service member. a. The FSM was a Tab-qualified Special Forces Noncommissioned Officer (NCO), who operationally deployed multiple times. He served at Guantanamo, Cuba from March to July 2002; he deployed to Iraq from April 2003 to March 2004; he deployed to Iraq from November 2005 to December 2006; he deployed to Afghanistan for the year 2009; and then he deployed to Afghanistan from 2010 to 2011. During these assignments, he received multiple awards for bravery and combat wounds. The FSM's command informed his family, that at that time, the FSM was the most highly decorated member of the 2nd Battalion, 7th Special Forces Group. At the time of his death, on 28 January 2011, the FSM was in the process of recovering from his most recent wounds, shrapnel in his left leg, from a firefight on 29 September 2010, and head injuries, from an Improvised Explosive Device (IED) blast on 30 November 2010. He was two days away from re-deploying, and was on orders to attend Jumpmaster School at Fort Benning, GA as his next assignment. Furthermore, the FSM was very familiar with the School requirements for an Army Physical Fitness Test and drug testing upon arrival. b. Team members found the FSM dead, sitting on his bunk, and they contacted the Criminal Investigations Command (CID) who conducted a thorough investigation. CID failed to find any evidence of previous drug use. They also failed to find any evidence of any illegal or unauthorized substances, no needles, no puncture marks, no marijuana cigarette butts, no pill containers, or any other evidence of current drug use, or intended future use. c. An autopsy identified a mixture of illegal and unauthorized drugs in the FSM's blood. Further examination found no evidence of any previous use of any illegal or unauthorized drugs. The pathologist's independent medical conclusion was that the ingestion was a one-time event, and accidental. d. Following the CID investigation, an LOD Investigation (LODI) commenced on 25 August 2011, as required by Army Regulation 600-8-4 (LOD Policy, Procedures, and Investigations). Although administrative in nature, it appears to have relied almost exclusively on the results of the CID criminal investigation. There was no apparent attempt to obtain a Commander's statement or any character statements, as required by Army Regulation 600-8-4, paragraphs 3-3.a. and 4-16. The initial LODI also neglected to include the mental health opinion required by Army Regulation 600-8-4 paragraph 3-8.e.(2)(h). Officials later identified this deficiency and obtained an opinion on 25 September 2011. The mental health opinion, when received, confirmed that suicide was unlikely. However, no change was made to the initial Not in LOD determination. Army Regulation 600-8-4, paragraph 3-8.f.4.(k)(6) requires an opportunity for rebuttal to proposed negative findings, prior to the Investigating Officer (IO) making a final determination. The FSM's family was not afforded this opportunity. e. On 23 January 2012, because of questions remaining from the initial LODI, another, more thorough investigation ensued. The new investigation started over from scratch and included over seven hundred pages of statements and other documents. The determination of this investigation was that the FSM's death was in LOD. Based on this changed determination, authorities sent an appeal to the Casualty and Mortuary Affairs Operations Center on 5 February 2013. Casualty and Mortuary Affairs Operations Center denied the appeal on 29 March 2013. f. Following a request for reconsideration, the Casualty and Mortuary Affairs Operations Center decided to retain the initial Not in LOD finding on 26 June 2013. They cited the same conclusion as the initial investigator, who concluded that since the death was because of drug ingestion, it was drug abuse, and therefore the result of intentional misconduct, as identified in Army Regulation 600-8-4, Appendix B, Rule 3. The Casualty and Mortuary Affairs Operations Center noted the existence of the second, and contrary, LODI and dismissed it with one sentence. It appears the Casualty and Mortuary Affairs Operations Center did not consider the possibility of accidental or unintended ingestion. The determination of the Casualty and Mortuary Affairs Operations Center appears to have been based on a theory of strict liability, rather than any substantial evidence test; that is, the mere presence of drugs automatically equates to abuse, sufficient to overwhelm any and all other possibilities, regardless of evidence or the lack thereof. This faulty conclusion that a single occurrence of drug ingestion automatically equals drug abuse, is contrary to the intent of Army Regulation 600-8-4, and results in grossly unfair consequences for the innocent spouse and children of the FSM. g. Army Regulation 600-8-4, paragraph 2-6 lists the standards applicable to LOD determinations, and states "Decisions on [Line of Duty LOD] determinations will be made in accordance with the standards set forth in this regulation." (1) "Injury, disease, or death proximately caused by the Soldier's intentional misconduct or willful negligence is "not in [LOD]-due to own misconduct." Simple or ordinary negligence or carelessness, standing alone, does not constitute misconduct [emphasis added]." (2) "An injury, disease, or death is presumed to be in [LOD] unless refuted by substantial evidence contained in the investigation (emphasis added)." (3) "Line of Duty determinations must be supported by substantial evidence and by a greater weight of evidence than supports any different conclusion [emphasis added]. 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..." h. The only evidence supporting intentional misconduct is the autopsy report revealing the presence of illegal drugs in the FSM's body as cited by both the initial investigator, and the Casualty and Mortuary Affairs Operations Center on appeal. However, the mere presence of drugs does not automatically constitute drug abuse, or intentional misconduct. i. The common definitions of drug abuse shows: (1) "[The] Habitual use of drugs to alter one's mood, emotion, or state of consciousness." (The American Heritage Stedman's Medical Dictionary Copyright 2002, 2001, 1995 by Houghton Mifflin Company. Published by Houghton Mifflin Company) (2) "The excessive, maladaptive, or addictive use of drugs for nonmedical purposes despite social, psychological, and physical problems that may arise from such use." (Encyclopedia Britannica, 2008. Encyclopedia Britannica Online) (3) "People use substances for a variety of reasons. It becomes drug abuse when people use illegal drugs or use legal drugs inappropriately. This includes the repeated use of drugs to produce pleasure, alleviate stress, and/or alter or avoid reality. It also includes using prescription drugs in ways other than prescribed or using someone else's prescription. Addiction occurs when a person cannot control the impulse to use drugs even when there are negative consequences-the defining characteristic of addiction." (The National Institute on Drug Abuse (NIDA@ www.drugabuse.gov) j. It is significant that all three sources noted above require some element of habitual, excessive, or repeated use in defining drug abuse. Granted, all habitual, excessive, or repeated use requires a start. However, if any of that were the case, there would necessarily be some evidence of additional materials, or some indication of an intent to continue their use. After a thorough investigation, CID found absolutely nothing to support any previous use, or intent of repeated use. Again, the autopsy is clear that this event was a one-time occurrence, accidental, and unexplained. k. It is reasonable to assume the FSM swallowed the drugs because CID and other investigators found no trace of any delivery. However, the following alternatives merit consideration: (1) Service member decided to swallow a combination of heroin, marijuana, and other drugs, wanting to use illegal drugs to get high, (apparently because swallowing a mixed drug cocktail would be less obvious than injecting and/or smoking that combination of drugs). (2) Service member took some misidentified/unidentified pills he had previously found on an operation, thinking that they were (or would be) authorized medications, that would provide greater pain relief than the ibuprofen available from the team medic. (3) Service member accepted some pills from a trusted other person, with the understanding that they were (or would be) authorized medications, that would provide greater pain relief than the ibuprofen available from the team medic. l. Army Regulation 600-8-4 requires substantial evidence to support a finding of intentional misconduct or willful negligence. There is no substantial evidence of intentional misconduct or willful negligence, which required the choice of the first alternative. Subsequent to both an exhaustive CID investigation, and later LODIs, all that is left is a conclusion that because drugs were present in the body, their ingestion must have been intentional, and, because it was intentional, it must have been abuse. Given the undisputed facts, and, at a minimum, the alternatives identified above, this conclusion lacks any logical or legal foundation, and is far from the substantial evidence required by the regulation to overturn an In LOD presumption. m. As previously noted, the FSM was about to attend the Army Jumpmaster School, that was a prerequisite for promotion to master sergeant. He had been unable to attend up to this point because of his multiple deployments, and was anxious to attend the course. The second LODI identified all of this information, which, was part of the basis for the LOD finding. The initial LODI missed this, because the IO looked no further than the inconclusive CID investigation that focused on an attempt to identify criminal activity. n. On a personal note, for many Service members in Special Operations Forces (SOF), their team, platoon, or squadron is their family, especially while in combat. Bonds forged through small unit combat can be stronger than those of blood or marriage. One of the greatest fears of many special operators is not death, but injury. The Servicemen's Group Life Insurance (SGLI) provides for families financially if a Service member dies, but injuries result in separating the individual from his team or operational family, and increase the financial burden on his actual family. Injured, he can no longer contribute to the success of the team, and his absence increases the burden, and danger to the other members of the team. Consequently, there is a significant incentive to not report, or minimize injuries, and sometimes to self-medicate to remain on the team. Any abuse of drugs or medication would have the same consequence as a serious injury, that of removing the Service member from his team. That alone is a more powerful incentive for SOF to avoid drug abuse than for most Service members. Counsel bases his observation on his years of prior service as a Special Forces Tab-qualified Judge Advocate. o. Given the FSM's service record, and all the documentation supporting a desire to continue that service, both the initial LODI, and the Casualty and Mortuary Affairs Operations Center erred in jumping to the conclusion that just the mere presence of drugs was automatically abuse, and therefore the FSM's death was Not in LOD. The FSM expressed desire to remain on his team, attend school, continue service; this may have induced him to self-medicate, although nobody knows for sure. What is clear, however, is that there was no evidence of drug abuse, or an intent to take unauthorized drugs. There was no intent to avoid his duty, and no intent to violate the Uniform Code of Military Justice (UCMJ). As the pathologist concluded, the FSM accidentally over-medicated, and lost his life as a result. The Army Board for Correction of Military Records (ABCMR) should adopt this position, follow the presumption in Army Regulation 600-8-4, and find that the FSM died in LOD. 2. Counsel provides: * Photocopies of the FSM's awards and decorations * Bronze Star with "V" Device certificate * Standard Form (SF) 600 (Chronological Record of Medical Care), dated 1 October 2010 * Autopsy Examination Report * LOD Investigation * DD Form 261 (Report of Investigation - LOD and Misconduct Status) * Memorandum, Subject: [FSM] [Army Regulation] 15-6 [(Procedures for Investigating Officers and Boards Of Officers)] [investigation] and Recommendations * Letter of appeal to LOD investigation * Two letters from the Casualty and Mortuary Affairs Operations Center * Letters of support * Character references * CD containing a 758 page Army Regulation 15-6 investigation CONSIDERATION OF EVIDENCE: 1. The FSM enlisted in the Regular Army, in the rank/grade of private/E-1 on 1 February 2001, for a period of 4 years. His record indicates he held military occupational specialty (MOS) 11B after completing his initial training. 2. His record indicates he served in Guantanamo Bay, Cuba from 5 April 2002 through 28 June 2002 and then he served in Iraq from 6 April 2003 to 24 March 2004. 3. Permanent Orders (PO) Number 174-29, issued by Headquarters, 4th Infantry Division (Mechanized), Tikrit, Iraq, on 23 June 2003, awarded him the Combat Infantryman Badge "For participating in combat operations under enemy hostile file to liberate Iraq in support of OPERATION IRAQI FREEDOM" during the period 22 May 2003 to 5 June 2003. 4. He reenlisted on 25 February 2004 for a period of 4 years. He held the rank of specialist/E-4 at the time of his reenlistment. 5. His record contains a DA Form 1059 (Service School Academic Evaluation Report (AER)) showing he attended the Primary Leadership Development Course from 3 August 2004 through 17 August 2004, and achieved course standards. This form shows he held the rank/grade of sergeant (SGT)/E-5 and states the FSM was "An outstanding, motivated Soldier whose leadership skills resulted in being selected out of 310 students to be the Student First Sergeant… [in addition, he was] Superior in working with weaker Soldiers to identify and improve their weaknesses." 6. PO Number 313-13, issued by 1st Battalion, 22nd Infantry Regiment, 4th Infantry Division, Fort Hood, TX awarded him the Army Good Conduct Medal for exemplary behavior, efficiency, and fidelity in active Federal military service during the period of January 2001 to January 2004. 7. His records indicate he was promoted to the rank/grade of staff sergeant (SSG)/E-6 on 1 March 2005. 8. His DA Forms 2166-8 (NCO Evaluation Report (NCOER)) for the rated period May 2004 through April 2005 shows he was assigned to Headquarters and Headquarters Company, 1st Battalion, 22nd Infantry Regiment, 4th Infantry Division, Fort Hood, TX, as a Squad Leader. a. His rater noted the FSM's honesty and loyalty were beyond reproach, he always chose the hard right over the easy wrong, and he always places the unit's mission above his own personal concerns. His rater indicated he exceeded the standard and rated him as "EXCELLENCE" in the areas of competence, physical fitness and military bearing, leadership, and training. His rater stated the FSM was the Battalion NCO of the Quarter and that his unit selected him to the sniper squad out of a hundred NCOs in the Battalion. The rater also rated the FSM as "AMONG THE BEST" for overall potential for promotion and/or service in areas of greater responsibility. b. The FSM's senior rater stated the Army should promote the FSM to sergeant first class (SFC) and send him to the Advanced NCO Course (ANCOC). The senior rater also stated the FSM consistently accomplished the mission beyond the standard and that he was a successful squad leader who demonstrated the potential to be an outstanding platoon sergeant. The senior rater rated the FSM as "Successful - 1" for his overall performance and as "Superior - 1" or his overall potential for promotion and service in positions of greater responsibility. 9. His record contains an AER showing he attended the sniper course from 5 August 2005 through 26 August 2005. As a result of his successful completion of phases 1 and 2 of the course he was received the additional skill identifier "B4," identifying him as a sniper. 10. PO Number 279-01, issued by Headquarters, Headquarters Detachment, 1st Brigade, 4th Infantry (Mechanized), Fort Hood, TX awarded him the Expert Infantry Badge for service in Iraq during the period of 22 May 2005 to 22 June 2005. 11. His records indicate he served Iraq from 9 December 2005 through 7 December 2006. 12. His NCOER for the rated period May 2005 through April 2006 shows he was assigned to Headquarters and Headquarters Company, 1st Battalion, 22nd Infantry Regiment, 4th Infantry Division, Camp Falcon, Iraq, as a Squad Leader of an infantry sniper squad of a mechanized battalion. a. His rater noted the FSM's loyalty to his unit was second to none, he always chose the hard right over the easy wrong, and he always placed the mission above his own personal concerns. His rated indicated he exceeded the standard and rated him as "EXCELLENCE" in the areas of competence, physical fitness and military bearing, leadership, and training. His rater stated the FSM earned the Expert Infantry Badge during the rating period, his battalion selected him above all other SSG's in the battalion to serve as the squad leader of the sniper squad, and he demonstrated the flexibility to perform his primary duties and other tasks continually above the standard. The FSM also led his sniper team through 35 combat missions, including cordons, observations posts, and patrols during Operation Iraqi Freedom 05-07. The Brigade Command Sergeant Major (CSM) selected the FSM to conduct pre-sniper course training for the entire brigade, he trained new Soldiers to successfully execute sniper missions in a combat zone, and he trained his platoon in exfiltration techniques based on his experience during Operation Iraqi Freedom - 1. The FSM's rater rated him as "AMONG THE BEST" for overall potential for promotion and/or service in areas of greater responsibility. b. The FSM's senior rater stated the Army should promote the FSM to SFC now and send him to ANCOC immediately. The senior rater also stated the FSM's tactical expertise was without a second in dismounted operations and that he would excel as a Platoon Sergeant. The senior rater rated the FSM as "Successful - 1" for his overall performance and as "Superior - 1" or his overall potential for promotion and service in positions of greater responsibility. 13. His record contains a certificate for award of the Army Commendation Medal, which shows Orders Number 225-229, issued by Headquarters, 4th Brigade, 4th Infantry Division, Taji, Iraq awarded him the Army Commendation Medal for the period 4 December 2005 to 2 December 2006. This certificate shows he was assigned to Headquarters and Headquarters Company1st Battalion, 22nd Infantry Regiment, 1st Brigade Combat Team, and the citations reads: FOR MERITORIOUS SERVICE WHILE SERVING AS A SNIPER SECTION LEADER DURING OPERATION IRAQI FREEDOM 05-07. SSG [FSM'S] OUTSTANDING PERFORMANCE, ATTENTION TO DETAIL AND DEDICATION TO DUTY REFLECT GREAT CREDIT UPON HIMSELF, THE "REGULARS" BATTALION, THE "RAIDER" BRIGADE AND THE UNITED STATES ARMY. 14. PO Number 115-03, issued by 1st Battalion, 22nd Infantry Regiment, 4th Infantry Division (Mechanized), Fort Hood, TX, on 25 April 2007 awarded him the Army Good Conduct Medal (2nd Award) for exemplary behavior, efficiency, and fidelity during the period 1 February 2004 to 31 January 2007. 15. His NCOER for the rated period 1 May 2006 through 30 April 2007 shows was assigned to Headquarters and Headquarters Company, 1st Battalion, 22nd Infantry Regiment, 4th Infantry Division, Fort Hood, TX as a Sniper Section Leader. a. His rater noted that the FSM inspires Soldiers through his personal courage, he consistently exceeds the Army standards, and he encourages and demonstrates continuous self-development. His rater indicated he exceeded the standard and rated him as "EXCELLENCE" in all areas. His rater stated the FSM routinely led sniper and scouts on team and squad missions that required him to make tactical decisions without input from higher leaders and he mentioned the FSM's selection for SF Training at the SF Assessment and Selection. The FSM's rater rated him as "AMONG THE BEST" for overall potential for promotion and/or service in areas of greater responsibility. b. The FSM's senior rater stated the Army should promote the FSM ahead of his peers and that he was in the top 1 percent (%) of all the NCOs in his company. The senior rater also stated that the Army should continue to place the FSM in challenging leadership positions because he would inspire quality NCOs for the Army's future. The senior rater rated the FSM as "Successful - 1" for his overall performance and as "Superior - 1" or his overall potential for promotion and service in positions of greater responsibility. 16. He extended his enlistment for a period of 6 years on 14 June 2007. 17. His NCOER for the rated period 1 May 2007 through 1 September 2007 shows he was assigned to Headquarters and Headquarters Company, 1st Battalion, 22nd Infantry Regiment, 4th Infantry Division, Fort Hood, TX as a Sniper Section Leader. a. His rater noted that the FSM was always professional and loyal to his superiors and the command, he was a faithful and loyal leader who cared about the mission and his Soldiers, and he mentored his Soldiers to develop their honor, courage, and commitment. His rater stated the FSM demonstrated sound and mature judgment and that accomplishing the mission and leading his Soldiers by example was the FSM priority. The FSM's rater rated him as "AMONG THE BEST" for overall potential for promotion and/or service in areas of greater responsibility. b. The FSM's senior rater stated the Army should promote the FSM ahead of his peers and send him to ANCOC now. He also stated the FSM consistently performed at a level above his peers and that he was highly motivated and aggressive, and that the Army should continue to place him with troops and challenge him with greater responsibility. The senior rater rated the FSM as "Successful - 1" for his overall performance and as "Superior - 1" or his overall potential for promotion and service in positions of greater responsibility. 18. PO Number 284-3054, issued by Headquarters, United States Infantry Center, Fort Benning, GA, on 11 October 2007 awarded him the Parachutist Badge and the additional skill identifier "P," identifying him as a parachutist for his successful completion of Airborne training on or around 19 October 2007. 19. His records indicate the Army promoted him to the rank/grade of sergeant first class (SFC)/E-7 on 1 January 2009. 20. His NCOER for the rated period 2 September 2007 through 1 March 2009 shows he held MOS 18C (Special Forces Engineer Sergeant) and he was assigned to A Company, 2nd Battalion, 7th SF Group (Airborne), Fort Bragg, NC, as a SF Senior Engineer SGT. a. His rater noted the FSM's set the highest personal and professional standards both on and off duty, he displayed total unwavering integrity on a daily basis, and he shows complete unconditional loyalty to the mission and the unit. His rater indicated he exceeded the standard and rated him as "EXCELLENCE" in the areas of physical fitness and military bearing, leadership, and responsibility and accountability. His rater stated the FSM served as the primary MK-19 machine gunner for a Ground Mobility Vehicle, eliminating over 10 enemy combatants during multiple troops-in-contact situations, and that that his conduct and military bearing were beyond reproach. He also led a split team in over 20 operations during the first 90 days of the Operation Enduring Freedom (OEF) XIV deployment, assisting and mentoring a platoon of Afghan National Army Soldiers in combat. The FSM's rater rated him as "AMONG THE BEST" for overall potential for promotion and/or service in areas of greater responsibility. b. The FSM's senior rater stated the Army should promote the FSM to master sergeant (MSG) and send him to the First Sergeant (1SG) Course at the first opportunity. The senior rater also stated the FSM delivered an outstanding performance, he was an extremely capable leader and NCO who could be counted on to accomplish the most difficult tasks, and he was capable of working in the most demanding positions. The senior rater felt the FSM would make a great future Operations SGT and stated the FSM's leadership potential and technical abilities were boundless. The senior rater rated the FSM as "Successful - 1" for his overall performance and as "Superior - 1" or his overall potential for promotion and service in positions of greater responsibility. 21. PO Number 061-59, issued by the U.S. Army John F. Kennedy Warfare Center and School, Fort Bragg, NC, on 2 March 2009 awarded him the SF Tab for graduating the SF Engineer SGT Qualification Course. 22. He reenlisted for a period of 4 years on 4 March 2009. 23. His record contains an AER showing he attended the SF Engineer SGT Course and the Basic NCO Course at Fort Bragg, NC, from 19 January 2008 through 6 March 2009. During this period, he also completed Special Operations Language training for Spanish and he completed the Survival, Evasion, Resistance, and Escape course. His instructors stated, "his performance indicates that he will be an asset to the SF Community." 24. His record indicates he deployed to Afghanistan on 19 July 2009. 25. His record contains a certificate for award of the Bronze Star Medal, which shows PO Number 337-079 awarded him the Bronze Star Medal for the period 18 July 2009 to 1 February 2010. This certificate shows he was assigned to the Combined Joint Special Operations Task Force - Afghanistan (CJSOTF-A), and the citation reads: FOR EXCEPTIONALLY MERITORIOUS SERVICE AS A MEMBER OF THE [CJSOTF-A] DURING OPERATION ENDURING FREEDOM. SERGEANT [FSM'S] OUTSTANDING DEDICATION TO DUTY DURING COMBAT OPERATIONS IN AFGHANISTAN CONTRIBUTED TO THE OVERWHELMING SUCCESS OF THE COMMAND'S MISSION. HIS ACTIONS ARE IN KEEPING WITH THE TRADITIONS OF MILITARY SERVICE AND REFLECT DISTINCT CREDIT UPON HIMSELF, [CJSOTF-A], SPECIAL OPERATIONS COMMAND CENTRAL, AND THE UNITED STATES ARMY. 26. His record contains a memorandum, Subject: Record of MOS/Medical Retention Board (MMRB) Proceedings SFC [FSM], issued by the U.S. Army Installation Command, Headquarters, U.S. Army Garrison, Fort Bragg, NC, on 10 February 2010. This memorandum states, the Fort Bragg Consolidated Installation MMRB evaluated the FSM's ability to perform the physical requirements of his Primary MOS (PMOS) 18C on 17 December 2009. Based on a thorough review of his most recent permanent physical profile, dated 2 July 2009, and all pertinent records and reports, the MMRB decided to retain the FSM in his current PMOS. His permanent medical condition does not preclude his satisfactory performance of the physical requirements for his PMOS in a worldwide field environment. 27. His record contains an AER showing he attended the SF Intelligence SGT course from 8 January 2010 through 14 April 2010 and was awarded MOS 18F (SF Intelligence SGT). His instructor states he completed the course with an academic average of 94.89% and he did a superior job on his written assignments. He also exhibited an extraordinary degree of skill and professionalism. The instructor also notes the FSM's vocabulary, command voice, and ability to express thoughts and ideas clearly to include individuals and groups are what are expected from someone more senior in rank and experience. The instructor felt the FSM's ability to work with peers was outstanding and his professional attitude and participation were commendable. 28. The evidence of record indicates he deployed to Afghanistan sometime between June 2010 and July 2010. 29. PO Number 272-05, issued by Combined Forces Special Operations Component Command, Afghanistan, New Kabul Compound, on 29 September 2010, awarded him the Purple Heart for wounds he received as a result of hostile actions on 29 September 2010. 30. The applicant provided an SF 600, dated 1 October 2010 showing the FSM received medical treatment for a left leg tissue puncture consistent with a shrapnel entry wound. He reported the pain level as 4/10 on the pain scale. The medical notes state, he was "hit with shrapnel during combat operations in [the] Uruzgan province on 29 September 2010. [He] was engaged with [the] enemy when he felt pain [and burning] on his lateral left calf. [He] was evaluated by the SF Medic and given his combat pill pack. The wound was cleaned out and dressed the [FSM] was continued on his antibiotic. He remained in the fight and was [medically evacuated] out on 1 October [2010] after returning to [Fire Base] FB Tinsley. [The FSM] was brought to the [Tarin Kowt] TK [Forward Surgical Team] FST at approximately 17:30 [hours] after undergoing [an] air medivac from FB Tinsley to FB Ripley at TK. He underwent [an] examination and [a] radiographic examination. [The] Radiograph showed a metallic item in the lateral knee at the level of the proximal fibula." The medical notes stated he would receive another examination within 24 to 48 hours and doctors would consider removing the foreign body if he had continued pain after the acute inflammation resolved. 31. PO Number 335-03, issued by Combined Forces Special Operations Component Command, Afghanistan (CFSOCC-A), New Kabul Compound, on 1 December 2010, awarded him the Purple Heart (2nd Award) for wounds he received as a result of hostile actions on 30 November 2010. 32. Applicant provided a series of email traffic dated from 18 December 2010 to 17 January 2011. a. On 18 December 2010, the FSM sent the applicant an email with the subject line "Angel." He states it was 2230 hours and he just returned to his room. He wrote, "I want to say I am sorry to you. Baby I know that times right now are not easy. I am gone; we are both just so burnt out. You and I have so much on our plates. I was going to get on yahoo but I think it is best I just go to sleep. I love you angel more than anything in this world. You are my best friend, the mother of our beautiful children and my wife. I never want your heart to go a day without smiling. I take the blame for our fighting. When you get sad, I get sad and then I get mad at myself because I can't be there to hold you and let you know everything will be ok. Please think of the good times and let's just battle through this together. I miss you and love you with all my heart and soul. Please kiss the kids for me and a big one for yourself." He signed the email, "With all my heart and soul, Love - [FSM]." b. The applicant emailed the FSM on 19 December 2010. The email contained the subject line "Baby." The applicant wrote, "I thought that I would go to bed early tonight… but I can't seem to get you and our conversation off my mind. I am so sorry that you are feeling the way that you have been. I wish I could take away the pain that you are feeling. I do get caught up with my own emotions… [and I] forget that you have feelings at times because you have shown me nothing but strength and courage through all these years … I know that you are overloaded and you need to get things done. Just remember that you are doing it, you have been doing it and you are doing a great job. I hear from the wives on the team how much their husbands like you and trust you. You are a wonderful person to work with and they know that you have their back. You are well liked and admired so please remember that. You are not a monster even though you feel like you have done some horrible things... It would be horrible if you were born that way and you just wanted to kill people. You are just ending the lives of people who deserve it. Sounds really bad to say but it is what it is. I don't look at you any less and I am not scared of you. I am here for you and I am sorry that you try to keep things simple for me. I do want to know how you feel, what you are going through, and when you have had enough. I can handle more than you think… You do not have to keep me in a bubble and protect me at all times. I know that you think that you have to but you don't, not all the time. I love that you want to do that… but I want to share your pain as well. I need to understand so that I am a better wife to you… Honey, I am worried about you. I worry about your safety… [and] your sanity. Not because I fear you will hurt me or the kids but I fear that you may block us out emotionally because of what you are feeling. I am here, I will always be here. I want to be with you for the rest of my life… I love you with all my heart and soul… We do not have an easy life but we have each other. We said that we would even make the best of it living in a cardboard box so we should be able to do this for each other and our kids. You and the kids mean the world to me and I need you three to be happy always. Know in your heart that you are one of a kind, a special breed and you are strong emotionally and physically. I hope and pray that you have better nights. I miss you baby and hope that you have or had a good day." She signed the email, "All my love [applicant]." c. The applicant emailed the FSM on 12 January 2011. The email contained the subject line "Hey." She states, [Rxxxxxx Txxxxx], the wife of [SFC Jxx Txxxx], one of the FSM's team members, informed her that, "Jxx [Txxxx] called her and said no one was coming home anymore, for schools and stuff too. Does this mean you as well? I hope that is not the case. The kids would be heartbroken and we have so many things that we need to work on and... aghhh! I am hoping it is just for other schools and not yours or that there was a miscommunication. I hope that you are doing ok and that you are feeling better…" She signed the email, Love [Applicant]. d. The FSM responded to the applicant's email, subject line "Hey" on 12 January 2011. He wrote, "Hello my love - No worries as of yet I have not heard anything other than that I am leaving here on… [16 January 2011]. So nothing has changed yet for me. I don't know what [Jxx Txxxx] is hearing or what stories he is telling [his wife Rxxxxx] for that matter, but as of right now I am still on track for all the previous dates we talked about. I hope you are doing all right cooped up in the house with all the snow and ice. The kids must be driving you crazy LOL!!! Well, it is 5pm here and guess who is doing work still. It seems like every day there is just so much to do. Blow up this and fix or build that... [it] Never stops… well not for the next few days anyway. But soon I will be there with you and the kids. I love you and miss you three so much and cannot wait to get there. Kiss the kids and a big one for you. Love and miss you angel." He signed the email, "Love [FSM]." e. On 14 January 2011, the FSM sent the applicant an email with the subject line "hello my love." He wrote, "Good morning angel hope all is well. Looks like we will be heading out of here in the 16th and then straight to TK the next day. So all is still good. I still have no idea what [SFC Jxx Txxxxx] was talking about because Exxx [another team member] is still scheduled to go with me all the way to the States. Although he has got me a bit nervous now too. We were talking today and saying watch when we are at TK and ready to leave they are going to say nope and send us back. LOL I don't think it would happen but I do not put anything past the Army. It is about 8am there and I am sure you are up. So I hope that you are having a good morning. I hope that you woke up with a smile on your face and a big one in your heart. I love you so much and cannot wait to get home. You said in your email the other day you think we have some things we need to work on when I get home. I am with you angel on whatever you think we need. But please understand that right now and as we both know when I get home there will be a lot on my mind. It is never easy to leave when the team is still here. But the joy of being home with you and the kids is unreplaceable. I just ask that you bear with me and help me the best that you can so that I can ease my way back into the real world. I will do my best as well to let you in my mind so that you can understand a bit of what is going on in my head. I love you more than anything in the world and will do whatever it takes to get us back to where we need to be. Kiss the kids for me angel and a big one for you. I will call you later tonight. Muah!!" He signed the email, "With all my heart [FSM]." f. The applicant responded to the FSM's email on 17 January 2011, in an email with the subject line, "My Love." She wrote, "Hello baby, Hope that you are doing ok and that you are having a safe journey. I wanted to write back to you for a few days now… [about the email] you sent me about how you needed some understanding with all you were going through but I could never come up with the right words. The first time I read your letter I… thought… you were… telling me that you had some issues that you had to deal with and that there was no time to work on our marriage. After reading it a few times… [I realized] you were just trying to communicate… how you were feeling. Baby, I know that you have had a lot going on these past few months and I will never truly understand but I am here for you… The experiences you have gone through in a few months are more than what one man can handle in a lifetime. You have seen and done things that a person like myself will never experience. I know that we will have to work on all the things that come with your experiences but I know that it can be done. I have only been thinking of the negative things in my life and I apologize. I see that besides you being away from us there is nothing negative in my life... I pushed you away and even though you may not have seen it, I did it in my own way. I thought it was the best thing so that I can control my situation and my feelings. Well it is not the way to live life and I am not going to do that anymore. You mean the world to me and I know that you love me. Are in love with me!... Just because you are not here physically does not mean you are not here emotionally. I know that we always work on our marriage but I think we have a great one… Right now we need to work on just getting you home and having you adjust to being back at home. I know that we will have to work extra hard… when you need me to listen, I will be here. When you need me to say something, I will do that. If you just need me to hold you, I will do that. The kids and you come first. We will get back to just being a happy family and things will fall into place… You are who you are today because of what you have experienced. Don't let the bad things control your mind or you will never get back to who you were. I know that it will take some time for you to adjust and that is ok. We will do it with the love that we have. I am so in love with you and I can't wait to have you home." She signed the email, "All my love, [Applicant]." g. The FSM responded to the applicant's email on 17 January 2011, in an email with the subject line, "My Love." He wrote, "Wow angel, thank you so much for that letter. You are right I know that our marriage is priority but I just wanted you to know that… it is not going to be easy for me this time. I feel it. It has been a hard rough trip. We have been through a lot and I can't wait to share it with you. Just so that you know and understand. I love you with all my heart and soul and cannot wait to see you. After my meeting last night my time line is looking like this. I am heading to TK on the 18th (Tomorrow). Then looking to fly out of country on the [24th or 25th of January 2011]. I know that is cutting it close but I still think all will work out… I am going to spend the day doing laundry and getting stuff ready to go. I will get back on later. I love you angel and cannot wait to see you. Kiss the kids and a big one for you." He signed the email, "All my love - [FSM]." 33. His record contains a certificate for award of the Bronze Star Medal with "V" Device, dated 17 January 2011, showing PO awarded him the Bronze Star Medal with "V" Device. This certificate shows he was assigned to the CJSOTF-A, and the citations reads: FOR EXCEPTIONALLY VALOROUS ACTIONS IN COMBAT ON SEPTEMBER 29, 2010 IN THE JANGALAK VILLIAGE OF AFGHANISTAN IN SUPPORT OF OPERATION ENDURING FREEDOM. WITH COMPLETE DISREGARD FOR HIS OWN SAFETY, SERGEANT [FSM] MANUEVERED THROUGH ACCURATE AND EFFECTIVE FIRE, SURPRESSING THE ADVANCING ENEMY AND DESTROYING THEIR POSITIONS. DESPITE BEING WOUNDED, HE CONTINUALLY DIRECTED AND PLACED EFFECTIVE FIRE ON THE ENEMY FOR TWO DAYS, DECLINING EVACUATION UNTIL RELIEF ARRIVED. HIS SELFLESSNESS, DEDICATION TO DUTY AND COURAGE UNDER FIRE HELPED REPEL A DETERMINED ENEMY AND ULTAMATLY SAVED THE LIVES OF HIS FELLOW SOLDIERS. SERGEANT [FSM'S] ACTIONS ARE IN KEEPING WITH THE FINEST TRADITIONS OF MILITARY HEROISM AND REFLECT DISTINCT CREDIT UPON HIMSELF, THE [CJSOTF-A], THE [CFSOCC-A] AND THE UNITED STATES ARMY. 34. Applicant provided a series of email traffic dated from 20 January 2010 to 23 January 2011. a. The applicant sent the FSM an email, on 20 January 2011. The email contained the subject line "Hello." The applicant wrote, "Hey, you are probably catching up on a lot of much needed sleep or you are extremely busy in your last few days there. I just wanted to see how you were doing and what was going on with the flights. I am sure that you do not have exact dates yet but maybe you know something by now. I am a little annoyed right now with [SFC Jxx Txxxxx] and I would like to talk to you about it. I think that I have a right to be excited with you coming home with all the stress of you being there these past few months and [SFC Jxx Txxxxx and his wife Rxxxxx] are doing a pretty good job at ruining my mood. I will have to explain it to you when I talk to you but I am now about done with them." The applicant goes on to explain that she listened to them complain about their marital problems for months and that she is tired of their complaining. She states she feels that they are just unhappy people. She goes on to say, "I am happy you are taking steps to come home. I also know that you may not make it in time for [their daughter's] birthday party but that is ok. We have a lot to look forward to and I am just happy that you are safe… I love you and miss you. Can't wait to hear from you." She signed the email, "All my love [applicant]." b. The FSM responded to the applicant's email, with the subject line "Hello," on 23 January 2011. He wrote, "hello angel, I am so sorry that I have not been in touch. You are right, it has been a mad house since I got here. Trying to get flights, customs, and all the other tomfoolery that goes on here. I am doing everything possible to get home and it just seems like nothing is going right. I guess it never ends right. I feel like I have just been more pissed at the world since I got here. I am so close to getting out of here and yet the nonsense continues. I am sorry angel if this sounds crazy it is just about the situation not you. I need out of here. I am still at TK and trying to either get to BAF or KAF which ever has a flight out of here. I am also working an Air Force flight... I love you angel but I am going to get lunch and keep working to get out of here. Sorry again about not getting ahold of you I just really want out of here. And you know how I get my mind set on something and that is it. I love you more than anything and will call soon. Kiss the kids and a big one for you. He signed the email, "Love [FSM]." 35. His record contains an Army Human Resources Form 1569 (Transcript of Military Record [Official replacement for the DD Form 214]), which shows he died on active duty at Camp Montrond, Afghanistan, on 28 January 2011. This form also lists the following awards and decorations: * Bronze Star Medal with Combat Distinguishing (Valor) Device * Bronze Star Medal * Purple Heart (2nd Award) * Army Commendation with Distinguishing (Valor) Device (2nd Award) * Army Commendation Medal (3rd Award) * Army Good Conduct Medal (3rd Award) * National Defense Service Medal * Afghanistan Campaign Medal with one Bronze Service Star * Iraq Campaign Medal with one Bronze Service Star * Global War on Terrorism Expeditionary Medal * Global War on Terrorism Service Medal * Noncommissioned Officers Professional Development Ribbon with Numeral 2 * Army Service Ribbon * Overseas Service Ribbon with Numeral 2 * Army Presidential Unit Citation * Joint Meritorious Unit Award * Meritorious Unit Commendation * Special Forces Tab * Combat Infantry Badge * Expert Infantry Badge * Parachutist Badge 36. The Autopsy Examination Report, issue by the Department of the Army, Armed Forces Medical Examiner System, on 20 March 2011 states: a. The FSM was serving in Afghanistan in support of Operation Enduring Freedom when one of his teammates found him unresponsive in his on-base living quarters (B-HUT T-9) on Camp Montrond. The FSM recently returned from a mission where he lived with local nationals under austere conditions. On 27 January 2011, he reported to the team surgeon that he was feeling ill. The team surgeon gave him Benzonaiate tessalon perles and Mucinex. He was last seen alive 28 January 2011 at about 10:00 hours. On 28 January 2011, at approximately 12:34 hours, his team members found him unresponsive in his bed. After lifesaving-measures were performed, to no avail, authorities pronounced him dead at the scene. The Benzonaiate tessalon perles and Mucinex were found at the bedside. No alcohol, illegal drugs, or drug paraphernalia were found at the scene and there was no evidence of foul play. b. The final autopsy diagnoses shows: (1) mixed drug intoxication: (a) Positive opiates: * 6-Acetylomorphine was detected in the blood (.009mg/L) and in the urine * Morphine was detected in the blood (0.14mg/L) and in the urine * Codeine was detected in the urine but not in the blood (b) Positive benzodiazepines: * Nordiazepam was detected in the blood (0.82 mg/L) and in the urine * Diazepam was detected in the blood (0.39 mg/L) and in the urine * Oxazepam was detected in the blood (0.7 mg/L) and in the urine * Temazepam was detected in the blood (0.04 mg/L) and in the urine (c) Positive cannabinoid: 11-nor-delta-9 tetrahydrocannabinol-9-Carboxylic acid was detected in the blood (0.02 mg/L) and in the urine. c. The autopsy report states his cause of death was mixed drug intoxication. d. The Medical Examiner opined the FSM died of mixed drug intoxication. The toxicology screen is positive for 6-Acetylomorphine (the specific metabolite of heron), morphine, codeine, multiple benzodiazepines, and marijuana. The additive effect of opiates, such as codeine, morphine and heron, and benzodiazepines can lead to central nervous system depression and may ultimately cause repertory collapse, coma, and death. It is most likely that the combination of central nervous depressants as identified in the toxicology testing caused depression of the breathing centers in the brain, repertory collapse, and ultimately death. Based on the investigative and autopsy findings the manner of death was ruled accidental. 37. On 25 August 2011, the Commander (an SF Colonel (COL)), CJSOTF - A, Bagram Air Field, Afghanistan issued a memorandum appointing Air Force Captain (CPT) [hereinafter referred to using the phonetic alphabet, as Mike] as the IO for the FSM's LOD investigation [almost 7 months after the FSM's death]. This memorandum shows Mike received a suspense date of 1 September 2011, meaning Mike had 7 days to complete the FSM's LOD investigation. The memorandum of appointment shows/states: a. The Commander appointed Mike as the IO to conduct an investigation under the provisions of Army Regulation 600-8-4, chapter 3, section II, and indicated Mike could use Army Regulation 15-6, chapter 5 for guidance. The Commander directed Mike to conduct a full investigation into the facts and circumstances surrounding the FSM's death to determine, specifically whether the FSM died in the LOD. This memorandum states: b. "You will make findings of fact and recommendations in a memorandum format based upon your investigation. Attach this memorandum to a DD Form 261. The findings must be supported by a greater weight of evidence than supports a contrary conclusion... Obtain sworn statements from witnesses whenever possible. Do not... unduly delay your investigation simply to obtain sworn statements. Use your discretion in determining whether a sworn statement is required of any witness. You may make use of photographic, documentary, and other evidence as appropriate in addition to witness statements in conducting your investigation... Contact your assigned legal advisor… [CPT Jxxxx Cxxxxxxxxx, CJSOTF-A Deputy Judge Advocate (JAG)] for a legal briefing before you begin your investigation. Submit your completed report to [Major (MAJ) Exxxxxxxx Axxxx, CJSOTF-A Command JAG], for [a] sufficiency review no later than 1 September 2011. If you need an extension, coordinate through [the MAJ]." 38. Mike provided his findings and recommendation in a memorandum, dated 30 August 2011. Mike's findings show/state: a. Mike received the CID packet to include the death scene investigation, forensic examination, witness interviews [not available], and medial record review and indicated he would refer to these exhibits in the report to assist in substantiating the facts provided in the sworn statements. Mike provides the following facts: (1) "On 28 January 2011, [the FSM]… was found unresponsive, sitting upright in his bed in his B-Hut by teammates SFC [Jxx Txxxxx] and [SSG Exxx Gxxxxxxx], who requested assistance at Camp Montrond, Afghanistan, [Air Force Staff Sergeant (SSgt) Jxxxx Kxxxxxx, a para-rescue jumper] arrived, was unable to find a pulse and provided Cardio Pulmonary Resuscitation (CPR) with no success." (2) "Teammates notice [the FSM] was purple in the face and neck, cold to the touch, had mucus excreting from his nose, and had urinated on the floor of the B-Hut. SSgt Kxxxxxx notices that rigor was present. There were no signs of trauma. At 1300, MAJ [Axx], Camp Montrond Surgeon, pronounced [the FSM] deceased. (3) SFC Jxx Txxxxx and SSG Exxx Gxxxxxxx were present at the scene of death. [Air Force] Technical Sergeant (TSgt) Rxxx Bxxxxxx was also present at the scene of death and summoned SSgt Jxxxx Kxxxxxx to provide medical aid. SSgt Jxxxx Kxxxxxx was present at the scene of death and the first medial aid on the scene. (4) Mike stated the Craig Joint Threat Hospital, Camp Montrond S-1, home station unit was unable to locate the FSM's DA From 2173. He also notes he also requested a copy of this form from the 7th SF Group and Casualty and Mortuary Affairs Operations Center but neither responded to his request. b. Mike provides the following findings: (1) "Prior to his death, [the FSM] was known to have good health, as sworn by his teammates [statements unavailable]. In November 2010… they noticed he had developed a bad cough." (2) "SFC [Jxx Txxxxx], a teammate, made a statement on the physical stature of [the FSM] when he saw him prior to his death in mid-January 2011 and how 'his speech was real slow…like he was high on something.' SFC [Jxx Txxxxx] then asked him if he was 'on' something, and [the FSM] replied 'he was doing some nefarious activities.'" (3) The autopsy examination report included findings of blood sepsis and Methicillin Resistant Staphylococcus Aureus (MRSA) in the FSM's blood and lungs. However, the report indicated the FSM's death was due to mixed-drug intoxication. Both the autopsy report and toxicology report positively identified the following drugs in the FSM's blood and urine: 6-acetylomorthine, codeine, multiple benzodiazepines, cannabinoid, and marijuana. (4) Dr. Mxxxxxx Wxxxxxxxx, Chief of Medical Staff at Craig Joint Hospital, Bagram Air Field made a statement expressing that the FSM had "no legitimate use for multiple benzodiazepines within his system at the time of his death." c. Mike provides the following additional considerations: Statements from SFC [Jxx] Txxxxx, SSG Exxx Gxxxxxxx, and SSgt Rxxx Bxxxxxx describe the FSM to be depressed due to marital conflict with his wife. However, SFC Jxxxxx (former teammate) and SSG Exxx Gxxxxxxx also provided statements that throughout the duration of their relationship with the FSM, he was not one to hurt himself or commit suicide. d. Mike states, "I believe this incident to be a result of voluntary intoxication due to [the] deceased service member's own misconduct, not in the line of duty," and recommended the LOD determinations reflect this finding. 39. On 1 September 2011, CPT Jxxxx Cxxxxxxxxx, Deputy Command JAG, conducted a legal review of Mike's LOD investigation. CPT Jxxxx Cxxxxxxxxx states Mike's LODI was legally sufficient in that the greater weight of evidence supports the IO's findings than supports a contrary conclusion. The IO's findings support his determination by substantial evidence, and the report contains no legal errors. CPT Jxxxx Cxxxxxxxxx further states: a. The IO attempted to locate a DA Form 2173, which is typically originated by a medical treatment facility or provider at the time of death. The DA Form 2173 is routed through the service member's commander for appointment of an LOD investigation. The IO's command-directed LODI satisfies the same purposes. The absence of the DA Form 2173 from the IO's report does not affect the legal validity of the proceedings. b. CPT Jxxxx Cxxxxxxxxx gave the Commander, CJSOFT-A the option to approve or disapprove the LODI and its final determination, or to determine the investigation is complete and return it to the IO with further guidance. c. CPT Jxxxx Cxxxxxxxxx recommended the commander sign the DD Form 261 approving the IO's findings and recommendations (not in the LOD - due to own misconduct) and that the investigation be forwarded to CFSOCC-A for review and routing to the General Court Martial Convening Authority (GCMCA), Regional Command - South (RC-South). 40. Mike provided amended findings and recommendations in a memorandum, dated 11 October 2011. Mike's findings include the following new information: a. "The [LODI] was returned to me on or around 5 October 2011 from [RC-South] for consideration and additional information. The [RC-South] Division Psychiatrist prepared a 25 September 2011 Mental Soundness Evaluation [not available for review] to supplement the factual record I… previously reviewed. The Mental Soundness Evaluation did not include new information…" b. "The [RC-South] Division Psychiatrist prepared a 25 September 2011 Mental Soundness Evaluation and concluded that 'it is unlikely that [the FSM's] actions on the night of 28 Janaury 2011, were suicidal in nature…In the prior two months, [the FSM] expressed future orientation and plans…Available records do not paint a picture of clinical depression.' The Mental Soundness Evaluation did conclude that 'the proximate cause of [the FSM's] self-destructive behavior was impaired judgement due to polysubstance intoxication.'" c. Based on the CID investigation and the Mental Soundness Evaluation, as well as a review of all the facts, and consideration of the additional information, the IO arrived at the same conclusion, and recommended an LOD of "not in the line of duty - due to own misconduct" as a result of voluntary intoxication. 41. On 11 October 2011, CPT Jxxxx Cxxxxxxxxx, Deputy Command JAG, conducted a legal review of Mike's LOD investigation. CPT Jxxxx Cxxxxxxxxx states Mike's LODI was legally sufficient in that the greater weight of evidence supports the IO's findings than supports a contrary conclusion. The IO's findings support his determination by substantial evidence, and the report contains no legal errors. CPT Jxxxx Cxxxxxxxxx further states: a. "Around 5 October 2011, the IO's [LODI] was returned by the GCMCA, [RC-South] with supplemental material, namely a 25 September 2011 Mental Soundness Evaluation. The IO considered the new evidence and prepared an amended findings and recommendations. The IO's amended report arrives at the same recommendation and also contains no legal errors." b. CPT Jxxxx Cxxxxxxxxx gave the Commander, CJSOFT-A the option to approve or disapprove the LODI and its final determination, or to determine the investigation is complete and return it to the IO with further guidance. c. CPT Jxxxx Cxxxxxxxxx recommended the commander sign the DD Form 261 approving the IO's findings and recommendations (not in the line of duty - due to own misconduct) and that the investigation be forwarded to CFSOCC-A for review and routing to the GCMCA, RC-South. 42. The Commander, CJSOTF-A and the GCMCA approved the FSM's DD Form 261 as "not in LOD - Due to Own Misconduct" on 22 October 2011. 43. On 22 November 2011, the U.S. Army Human Resources Command (HRC), Casualty and Mortuary Affairs, Branch issued a letter to inform the applicant that, "after a careful review of the [LODI], a final determination was made that [the FSM] was 'Not in Line of Duty' at the time of his death. The determination was based on evidence in the investigation and autopsy report. This letter informed the applicant that the adverse findings could result in the loss of certain benefits such as, but not limited to, "Survivor Benefits or Dependency and Indemnity Compensation from the Department of Veterans Affairs." The letter also informed the applicant she had 6-years form the date of the LOD determination to exercise her right to appeal the findings. 44. On 30 November 2011, the HRC Freedom of Information Office issued a letter to the applicant indicating HRC finished processing her request for the FSM's LOD and provided her with a copy of the FSM's LOD file. 45. On 24 January 2012, the Commander, 7th SF Group, appointed [Redacted] as an Army Regulation 15-6 IO to investigate the death of the FSM. The IO's investigation included the following pertinent statements. a. The IO interviewed an Air Force Pararescuemen (PJ) at Hurlburt Air Field, FL on an unknown date. (1) The PJ stated he met the FSM in December 2010 and they became "pretty good friends." The PJ did not go with the FSM to TK in December 2010, but remembers the FSM returning to Bagram, after he was "blown up" by an IED, sometime before Christmas. (2) The PJ stated he was at the [Village Support Operation (VSO) site, also referred to as the second site] with the FSM; a new site they were clearing and establishing. They did not run into "a lot of drugs" at the second site. The only time he remembers running "into any kind of drugs was just passing the marijuana fields." The PJ stated he knew one of the male interpreters, named Bxxxx, who "had a drug problem" with heroin. One time the PJ met Bxxxx after a big operation, and "supposedly he was high on opium, heroin, or whatever..." (3) After leaving the VSO site, they traveled to TK and got a room while they were waiting for transport to Bagram. Once, during this time, the FSM stated, "when he got blown up the second time, they gave him some pills to help with the headaches" and the pain in his knee. When the FSM took this medication, he seemed more relaxed. (4) When the PJ got off the plane in Bagram on 27 January 2011, he saw the FSM and asked if he wanted to meet up for dinner that night. The FSM agreed to meet the PJ for dinner but never showed up. The next morning the PJ heard that the FSM died. b. The IO interviewed an interpreter who was a friend of the FSM's [hereinafter referred to using the phonetic alphabet, as Oscar], at Forward Operation Base (FOB) Laughman, Qalat, Afghanistan on an unknown date. (1) Oscar met the FSM 5 or 6 days before Christmas [December 2010]. Oscar stated the FSM was often talkative and confided that he "did a lot of stuff and saw a lot of stuff" that gave him nightmares, but he would never went into detail. Sometimes he complained about the residual symptoms or pain associated with being "blown up two times and... shot." (2) The first time Oscar met the FSM he seemed fine. The second time Oscar saw the FSM, on or around the 17th and 18th of January 2011... he appeared to be walking slowly and said "his whole body was kind of beat up... and he was in pain." He complained a lot about aches and pains. Oscar stated the FSM looked like he was "banged up pretty bad," and appeared to have lost a lot of weight. Oscar commented on the weight loss and the FSM said it was "just part of the job." Oscar also noted that the FSM would not take any medication for his discomfort, and when Oscar asked the FSM to go see a medic the FSM replied "Oh no, I'll be fine." (3) The FSM called Oscar when he got to Bagram, the night before he died. Oscar stated the FSM sounded sick and congested and he had a cough. The FSM said he was not feeling well, he was feverish, everything hurt, and his body felt worn out. He complained of feeling ill several times during the conversation. c. The IO interviewed the FSM's team leader [hereinafter referred to using the phonetic alphabet, as Alpha], at VSO Belambi, Afghanistan on an unknown date. (1) Alpha stated his initial assignment was to A Company as the Executive Officer (XO), but after the team's previous team leader "lost his legs in an IED incident," Alpha became the new team leader. (2) Alpha indicated the FSM and another team member were involved in an IED blast in November [2010], but he does not remember the exact date. Immediately after the IED blast, the FSM seemed groggy. He displayed the "typical TBI type of symptoms; slow to react, drowsiness, [and] nausea." The team had the FSM and a fellow team member medically evacuated. Alpha believes they were away from the team for approximately 2 weeks. They both failed several medical tests at first. Medical personnel would not release the FSM until he was "at baseline" because he had a perforated eardrum. Alpha feels like the FSM recovered from the IED blast. Once he finished all the testing and returned to the site "he was pretty much back to normal." Alpha is sure the FSM had a prescription for some kind of medication after the IED blast but was unsure if medical personnel prescribed additional medication at Kandahar Airfield (KAF). (3) When the IO asked Alpha if any of his team members were exposed to opium or marijuana during the deployment, Alpha responded, "there were all types of pot fields around." Alpha did not "specifically remember seeing any opium... in large quantities... but [the area they were in] was at the start of the opium belt." Alpha also stated that while doing patrols team members had to go through and around the marijuana fields, so in that sense, they were exposed. Alpha did not remember the team burning, handling, or pulling any of the caches. The team did not permit or condone drug use, nevertheless, some of the local nationals used marijuana or narcotics, and it would not be unusual if some of the interpreters or workers were using drugs without the team's knowledge; it was a part of their culture. d. The IO interviewed the FSM's former team leader [hereinafter referred to using the phonetic alphabet, as Bravo], at VSO Belambi, Afghanistan on an unknown date. (1) Bravo stated he got the FSM assigned to the attachment just before the last two rotations, before the 2009-2010 rotation; right around the same time, Bravo lost his CPT. The leadership literally called Bravo in after the attachment palletized, told him he had the team. The FSM was the first person Bravo called. The FSM knew his job inside and out and was tactically sound when they were in the field. The FSM was always one of Bravos primary assaulters. He took the FSM almost everywhere he went, and never had any issues with him. Every time Bravo was the assault force commander, the FSM would be his team leader and he would always get stuff done, especially returning fire. Bravo stated, "If you want to talk about personal character that is someone you want to emulate." (2) Bravo stated that sometime in the October or November [2010] timeframe the team had to go down further into the Chutu Valley to pick up the company warrant officer. The FSM was in a truck with two other team members when an IED blast hit their vehicle. They made it to the link-up site to pick up the warrant officer and then traveled all the way back to the VSO sight before anyone realized how badly the IED blast affected the personnel in the truck. The FSM was pretty messed up and medical personnel had to evacuate him. That was the second time medical personnel evacuated the FSM during the 2010-2011 rotation. After the IED explosion it seemed like it was tougher for him to sleep, but that is normal after "getting your head rattled." Bravo stated the FSM's demeanor did not change after the IED explosions, but he did indicate that most people "get kind of irritable after... [eating] an IED. Bravo did not see anything unusual about the FSM's behavior, and noted that team members usually do not sleep well after eating an IED. He stated all the team members had "issues sleeping because [they had] been blown up too many times, seen too many buddies wasted, and way too many back to back rotations." Prior to this deployment rotation, the FSM was hit by IEDs on multiple occasions in Iraq. (3) Bravo stated the SF Medical Sergeants (Military Occupational Specialty (MOS) 18D) usually did not procure drugs or medication on the local economy, or rather, he was not aware of his 18Ds procuring drugs on the economy. Each of the 18Ds signed for the appropriate type and number of drugs, that way when the 18Ds issued drugs there was a paper trail. The controlled medications were in a locked box and only the medics had access to the medications. Additionally, the medics inventoried the medications every 30 days. The medics issued each team member a fentanyl lollipop and a morphine stick; everyone carried their own medical pack. Every month the medics inventoried the team members' medical packs. (4) Bravo indicated that urinalyses were conducted after the team redeployed. He felt that the time to conduct a urinalysis was at the exact time and place the chain of command suspected team members were using drugs. The urinalyses should have taken place right after the FSM's death, not 3 months after the fact. (5) Bravo indicated that team members were exposed to opium and marijuana during their patrols; they were surrounded by acres of poppy and marijuana fields. The Afghanis smoked marijuana all the time and team members were always exposed. Additionally, the team members were frequently required to handle the poppy and marijuana plants while digging through the fields looking for IEDs or weapons. He does not believe any of the team members took any of the plants or used them for illicit purposes. The team members had to keep their "heads on a swivel," and they would not be able to focus or accomplish the mission if they were using drugs. Bravo did not feel that the FSM was using drugs. The FSM was not going to ruin a good thing. The FSM had a great family and a stellar career, further; he knew there would be consequence if he were to use drugs. The FSM always had "his head on a swivel," he "was game on every time he walked out of the wire." When he was in the wire he was the life, he was funniest person, "Everybody loved him." Bravo stated he did not believe the FSM used drugs. (6) Bravo's statement also indicates the FSM began to speak to him about breaking off a friendship with someone he had been friends with for a long time, and informed Bravo that he had never broken off a friendship with anyone before. Bravo also spoke about a friend of the FSM's who was a fellow team member. Bravo did not think or speak highly of this individual and indicated that he and the other team members only tolerated this person because he was the FSM's friend, and everyone liked the FSM. e. The IO interviewed one of FSM's team members [hereinafter referred to using the phonetic alphabet, as Charlie, at Camp Brown, Kandahar, Afghanistan on an unknown date. (1) Charlie said he and the FSM shared a room while they were at their first site in TK. The FSM found out that the command planned to send him home to go to jumpmaster school right about the time they were leaving TK. The FSM "insisted on doing the last push before he was put on a bird to go back home for school." (2) Charlie stated the FSM "was the kind of guy that was always seemed to find humor or... he always made a bad situation good... He was always [the] kind of guy that would bring you up. No matter how bad things were, how low morale was, you could always" talk to and joke around with the FSM. Charlie said he and the FSM were very close, and their families were very close. (3) When Charlie and the FSM shared a room, they had Wi-Fi. The FSM would sit in the room and talk to his wife on Skype almost every night. Charlie stated he "was jealous [of] the relationship [the FSM] had with his family versus the relationship [Charlie] had" with his family, a "deteriorating marriage." The FSM was in the room on multiple occasions "while [Charlie] was screaming at [his] wife, and then [Charlie and the FSM would] talk about" the situation and the FSM would try to help Charlie cope with his personal life. The FSM would always say, "Never get off the phone in a fight." He told Charlie he should "Always [handle] any kind of major business... face-to-face." Charlie said the FSM was his definition of a hero, the kind of Soldier you want in a foxhole next to you. (3) Charlie indicated that the FSM was injured by the IED blast at their first site in late November 2010. He stated the FSM was rattled for a few days from the "overpressure" of the IED blast, but the FSM did not really change. He also indicates that he was with the FSM when he was shot in the leg. He stayed in the fight for five days. He refused to go out on the helicopter and he had a bullet in his leg. (4) Charlie spoke to the IO about the local pharmacies, which were just little shops. He said occasionally, the medics might have acquired medication from there but they would have had to fill out special forms to indicate that they had these additional medications. The medics also had to write special memorandums when they used controlled substances and narcotic medications. f. The IO interviewed one of FSM's team members [hereinafter referred to using the phonetic alphabet, as Delta], at VSO Zalayabad, Afghanistan on an unknown date. (1) Delta informed the IO the FSM was injured during the 2009 deployment rotation when he rolled an ATV, crushed his hip, and had to be evacuated. The FSM was still dealing with the hip injury when they began the 2010-2011 deployment rotation. Delta went on to say hip fractures take a long time to heal and he believes the FSM was probably/may have still been taking Percocet. (2) The first time he got hurt during the 2010-2011 they were a day or two into an operation. The FSM was serving as a turret gunner on 29 September 2010 when he was shot in the left calf. The team patched him up and he continued the mission. He was evacuated a few days later, after the operation was complete. Delta stated he was sure medical personnel gave the FSM some type of medication after his leg injury in September 2010. He is not sure what kind of medication, but believes it was probably some type of anti-inflammatory. (3) The second injury during the 2010-2011 rotation occurred around 30 November 2010. The FSM was serving as a gunner when he was injured by an IED blast. The team monitored the FSM for 24 hours prior to his evacuation because he was nauseous and he had a headache. Delta mentioned that the FSM had previously sustained approximately eight IED injuries while serving in Iraq. Delta also stated that after the IED injury in November 2010, the FSM's primary issue was with his inner ear, but he also had issues with the side of his head, and he had a concussion. The primary reason for the FSM's evacuation was the inner ear problem, and medical personnel prescribed prednisone for his ear. (4) Delta stated everyone on the team was very critical of one another; the team would not have tolerated drug use. If someone on the team were high or using drugs, the FSM would have "jacked them up." The teams members were very serious about making sure everyone one on the team was focused. g. The IO interviewed one of FSM's team members [hereinafter referred to using the phonetic alphabet, as Foxtrot], at Camp Brown, Kandahar, Afghanistan on an unknown date. (1) Foxtrot stated, the day the FSM was hit by the IED blast he was serving as a gunner in a military vehicle. After the IED blast, they keep going and push forward to avoid an ambush. They kept moving until they arrived at their destination, they picked up an individual, and returned to their site. Once they returned to their own site, Foxtrot, a medic, examined the FSM. The FSM was suffering from nausea and a headache. The medic gave the FSM Naproxen and Benadryl after the blast and the FSM was down for 24 hours prior to his medical evacuation. The FSM returned to the team approximately a week after his medical evacuation. After the FSM returned to the team he frequently complained of headaches and the occasional inability to sleep. Foxtrot treated the FSM's headaches with Naproxen and the occasional sleeplessness with Benadryl. Other than the frequent headaches, Foxtrot did not notice any changes in the FSM's behavior or attitude. (2) Foxtrot mentioned that after the FSM suffered from the gunshot wound to his left calf he sometimes complained of pain or stiffness in his knee. The weather conditions were extremely cold, and the doctor said the FSM's discomfort was most likely due to the cold. (3) When asked about the FSM's health Foxtrot stated the FSM developed a cough, which presented primarily in the morning. Foxtrot gave the FSM Guaifenesin, an expectorant that helps loosen congestion in the chest and throat, for his cough. Foxtrot did not note any other health issues pertaining to the FSM, but he stated he and several other members of the team also developed a cough. Foxtrot attributed the coughing to the living conditions; their living area at the time had dirt floors. (4) Foxtrot discussed the presence of local pharmacies, he stated sometimes they were lucky and were able to acquire Pakistani medication, mostly Tramadol, which is a non-narcotic pain medication, he occasionally used. Foxtrot also discussed the procedures used for the accountability of the narcotic medications he had access to and those the team members carried (fentanyl and morphine). Foxtrot indicated that they conducted accountably regularly and he did not mention any instances where medication was unaccounted for or missing. h. The IO interviewed one of FSM's team members [hereinafter referred to using the phonetic alphabet, as Hotel], at Eglin Air Force Base, FL on an unknown date. Hotel stated that after the FSM was shot in the leg he sometimes complained of pain. The FSM slowly worked himself back into a physical training regime after the injury. However, he complained of sharp pain and stated he felt like there was still something inside his knee. The FSM was still able to run, but not as well he could before the injury. i. The IO interviewed the FSM's CSM [hereinafter referred to using the phonetic alphabet, as Juliet], at Camp Simmons, Afghanistan on an unknown date. (1) CSM Juliet received unofficial notification of the FSM's death just as he was arriving in TK for an awards ceremony. A member of the FSM's team contacted CSM Juliet on his phone. The team member stated, "Hey, CSM they just found [the FSM] and they are working on him... they found him in his room and the paramedics or whomever was administering CPR and... said that it didn't look good." CSM Juliet could not elaborate much on the phone conversation because the team member who called him was upset and his voice was shaking. CSM Juliet stated he could hear other personnel in the background, and stated he believed someone was administering CPR. j. The IO interviewed conducted a phone interview with medical personnel involved in the FSM's autopsy [hereinafter referred to using the phonetic alphabet, as Lima], on 8 April 2012. Lima stated, "Overall, [the FSM's] body was remarkably normal… there were no abnormalities present prior to his death." The FSM's "pulmonary parenchyma [were] red-purple and exuding a clear frothy fluid… The clear fluid is often seen with opiate overdose… The body fat, ventricles, as well as the Sulci [and] Giri were initially analyzed to… identify prolonged or acute [drug] use. [All the test results] were normal and only minimal atherosclerosis had occurred in the brain. These indications led the examiner to believe the drug use was an isolated event…" k. The IO interviewed the FSM's spouse [applicant], at Crestview, FL, on 3 February 2012. (1) The applicant stated the FSM had not been feeling well. The whole month of December he talked about headaches and his body aching. The FSM's friends also told the applicant he complained of headaches. She was shocked when she saw the toxicology report because that was not the husband she knew; that is not who he was. He did not even like taking Tylenol let alone any other drugs. (2) Rxxxxx Txxxxx, [SFC Jxx Txxxxx's] wife said she had many issues with her husband. During the deployment, her biggest concern with her husband was that he was doing drugs; she thought he was using drugs because he sounded weird. She said he was slurring his speech and that he sounded drowsy on the phone. The applicant thought this was likely due to his being exhausted from the mission and told Rxxxxx Txxxxx not to think anything about it until he came home. The applicant was not concerned until Rxxxxx Txxxxx had the applicant speak to her husband on the phone a few times. When the applicant spoke to him, he was very forgetful. If she told him something in one conversation, the next time they spoke " he would be like; 'What? I never talked to you.'" (3) The applicant stated she did not see any of the drugs in the FSM's autopsy toxicology report in the photos CID took. The only thing she noticed was the cough drops and the stuff the medic gave him. She did not believe the FSM would go to see the medics the night before his death if he was taking drugs, "That is not who he was, he was not stupid." Obviously, the drugs in his system were on the in his toxicology report, "but... there is just so much stuff that is missing like where, how, [and] when and [also,] those guys [the FSM's team mates]... their statements aren't even the same... [Their statements changed from one month to the next.] (4) The FSM told the applicant that the medical personnel were not going to take out his shrapnel because it was too close to his artery. He told her his leg did not really bother him unless it was cold. When his leg did bother him he complained of pain and throbbing. However, the applicant said she was not worried about his leg; she was worried about the concussion; after he got the concussion he starting to get bad headaches. The FSM told the applicant he could not sleep, and when he did sleep, he had a hard time falling asleep and would have horrible dreams that woke him up in a panic. The FSM complained that his head would throb and he had ringing in his ears. The applicant stated the FSM had an "H-4" profile for hearing, and was supposed to have a medical board, but everything turned out all right and he still wanted to deploy. The applicant was worried about his headaches and she wanted him checked by a doctor. He did receive treatment at TK, where medical personnel put him on the steroids; the steroids gave him headaches. (5) The FSM told the applicant that medical personnel put him on steroids and told him to wean himself off the medication before he left to go back to his team. The FSM hated taking any kind of medication, including allergies or cough medications. He did not wean himself off the steroids because he did not want to continue taking them; he said he did not think he needed to keep taking the steroids. Medical personnel told him he continued to get headaches because he did not wean himself off the steroids. The FSM's headaches were so severe that they caused him to throw-up on numerous occasions. The applicant thought medical personnel should have conducted further testing after his concussion because his head hurt constantly. The FSM complained of severe headaches the entire month of December. l. The IO obtained a sworn statement from an active duty Navy physician (Lieutenant Commander (LCDR/O-4) assigned to the National Treaty Organization (NATO) Role-3 Multinational Medical Unit (MMU), Kandahar, Afghanistan, on 12 March 2012. The LCDR stated, " Benzodiazepines, such as Valium have been used to treat anxiety symptoms associated with mild traumatic brain injury (MTBI) and either, [greater than] 30 days, acute adjustment reaction or more prolonged symptoms associated with PTSD and would not be out of the realm of common therapeutic agents used to treat this symptom. The exact medical indication or appropriate therapeutic agent selection for this patient are unknown to me, but again would be consistent with general practices given his known past medical history." m. The IO interviewed the Air Force CPT who served as the IO in the FSM's LODI [referred to as Mike], at Eglin Air Force Base, FL on an unknown date. (1) Mike indicates, at the end of July 2011, pretty much right after he arrived at CJSOTF-A, his chain of command was "pretty much like… Hey, CPT, here you go." He states that receiving an investigation is "your initiation to the CJSOTF-A. (2) Mike indicates that he never completed an investigation on his own before, so prior to conducting the FSM's investigation he never had any hands on experience. His only experience with LODIs was while working personnel. He did not conduct the investigations, he was the final eye in terms of compliance with personnel issues to make sure all the "i"s were dotted and the "t"s were crossed. He indicated that working on the FSM's investigation was a completely new experience for him. (3) Mike said a JAG officer handed the investigation to him. The JAG gave him the regulations for LODIs and all of the evidence. Mike said everything was just about done already when he received the investigation to include a breakdown of the situation. The [JAG or the command] said, "Here just read this and take a look at the [regulation]… come up with your findings and recommendations, and then we'll take a look and review it and let you know if we have any questions." (4) Mike said all the paperwork was completed and packaged for him to review, but they were holding off on the investigation for some reason. Mike indicated that the [JAG or the command] was open to him attempting to gather more information, and he actually attempted to gather more information from the 7th Group and Mortuary affairs, and he attempted to send email to both entities to gather missing medical paperwork, and a psychological evaluation. He was never able to get in touch with the proper points of contacts or acquire the missing medical records [DA Form 2173 (Statement of Medical Examination) and any other medical paperwork pertaining to the FSM's injuries in Afghanistan]. Eventually, he submitted his findings with the documentation he had available and noted the missing documents. After he submitted his findings, [JAG] returned the findings to him because he was missing the psychological evaluation, which was required. He was later able to obtain this document and resubmitted his findings to include the psychological evaluation. (5) The IO asked Mike about the regulations and guidance he used to conduct the LODI but he was not familiar with them. At one point the IO explained the duties and responsibilities of an IO so that Mike would understand them if he had to conduct another investigation in the future. Mike admitted that he was inexperienced with conducting Army investigations, and did not realize he could request and extension to provided more time to complete a more thorough investigation, he also did not realize that IO are usually given 30 days to conduct an investigation. Mike said he completed the investigation in the time allotted [7 days] and contacted JAG at least once a day to ask questions about the process. At one point, he questioned why he was involved as the IO because everything was completed by the time of his assignment as IO. Mike also admitted the questions asked in the statements he was given were far less thorough than those the new IO was asking. Mike stated he also questioned why they [JAG or the command] held the investigation for so long but he never got a response. He stated that the investigation packet was "lined up already," all he had to do was review the information and come up with a conclusion. (6) Mike concluded that the FSM's death was not in the LOD and due to his own misconduct because the FSM's autopsy revealed the presence of unauthorized drugs in his system. n. The IO's investigation included a number of other statements from team members and their spouses. The remaining statements are provided in summary due to the number and length of the statements provided: (1) The IO interviewed several of the team spouses. The spouses indicated that SFC Jxx Txxxxx and his wife Rxxxxx were having severe marital problems and that this was due, in part, to SFC Jxx Txxxxx's drug use or suspected drug use during the deployment. More than one spouse stated SFC Jxx Txxxxx's wife was concerned about his drug use and had them listen in on their phone conversations. The spouses noted his slurred speech, anger with his wife, and inability to follow the logical train of a conversation. The applicant indicates that she brought the matter to the FSM's attention. The nature of the FSM's job required him to travel between sites frequently. The FSM indicated he did not spend all of his time with SFC Jxx Txxxxx and was not aware of any drug use. (2) One of the FSM's teammates describes an incident during the deployment involving the FSM and another team member. The team was at a location near a river. The FSM discovered one of his teammates was using illegal drugs. The FSM confronted this individual, confiscated the drugs, and threw them into the river. 46. On 27 April 2012, the Army Regulation 15-6 IO prepared a memorandum for the Commander, 7th Special Forces Group (Airborne), Eglin AFB, subject: [FSM] Army Regulation 15-6 Findings and Recommendations, wherein he states he was appointed as an Army Regulation 15-6 IO to investigate the death of the FSM, on 23 January 2012. The OI's investigation spanned 96 days [3 month and 5 days]. a. The IO determined the initial LODI findings should be re-evaluated because no reliable indications or evidence of wanton illegal drug use or intoxication by the FSM prior to the night of his death could be attained. b. The IO determined that the validity of the initial LODI should be re-evaluated due to the lack of medical records and missing pages within the autopsy report. The initial determination was made under the provisions of Army Regulation 600-8-4 paragraph 4-11.e., which states, "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. Furthermore, paragraph 2-6.c. of the same regulation states, "Line of Duty determinations must be supported by substantial evidence and by a greater weight of evidence than supports any different conclusion." Since there were no direct witnesses, evidence of a method of delivery, or evidence of any containers for the illicit substances, one cannot, without speculation, conclude that the FSM knowingly, under willful negligence or misconduct, consumed the illegal substances of his own free will. c. The IO determined that the testimonies of those who were last with him can establish that the FSM was in pain and seeking medical attention by multiple sources for relief from pain in his leg due to shrapnel, severe headaches stemming from an IED blast, and trouble swallowing from upper respiratory distress. d. The IO determined that the only indication of drug use was solitarily found in the FSM's blood, which indicates the use of illegal drugs was an acute, isolated event. The autopsy shows normal ventricles in the brain and no indications of controlled drugs were found in the heart tissue or body fat. This does not preclude the possibility that the FSM was given the substances under false pretense by a third party. e. The IO determined that to legally find the FSM Not in the LOD, the Army would have to show intentional use of the illicit substances. This stated, one cannot unequivocally determine whether the illicit substances were consumed by suicide, accidentally, intentionally, or under duress with the evidence at hand. None of the personal effects collected by the Summary Courts-Martial Officer or by CID, at or around the death scene revealed a container to hold any of the illicit substances found within the FSM's blood. f. The IO determined there was not enough evidence to show the FSM received treatment for an IED blast on 30 November 2010, let alone whether he was prescribed medication to treat the symptoms resulting from the IED blast due to missing medical records for the FSM's TBI treatment in TK. Interviews with the team members do indicate the FSM was medically evacuated after the IED blast and returned to the VSO site approximately five days later. [a Navy LCDR/O-4, the lead Neurologist/Neurointensivist in RC-South, believes it is probable that the FSM was prescribed [Benzodiazepines, such as Valium or] Diazepam, as part of his TBI treatment. This conclusion was drawn based on his personal experience of seeing this practice being conducted by doctors in Theater during his tour in country. g. The IO concluded that the 7th Group Command should assist the applicant in submitting evidence to the Deputy Commanding General of HRC or the ABCMR to appeal the LOD determination with the evidence collected by this Army Regulation 15-6 investigation. f. The Commander approved the IO's findings and recommendations. 47. The applicant responded to HRC's letter in 5 February 2013. She states, her husband, the FSM, who was assigned to the7th Group SF died on 28 January 2011. His death was ruled not in the LOD, without what she believes to be a thorough investigation. There were many discrepancies to include pieces of important paperwork missing from the CID investigation. The FSM received numerous awards and gave the military ten years. He was a respected Soldier and never got into any trouble. The applicant was with the FSM since he was a private and they had two beautiful children together. Their children are now 9 years old and 5 years old. For the past two years, she has been fighting for the legacy of their father. The 7th Group command directed an Army Regulation 15-6 investigation in January 2012 and she indicates that she enclosed a copy of the findings as well as memoranda from the CJSOTF Commander and Deputy commander. Her family has been through more than what they expected when she lost her husband and she hoped this would be the end of their fight. She provided the following two letters in support of her appeal: a. A memorandum, for HQDA [HRC, Casualty and Mortuary Affairs branch], Subject: Letter of Endorsement for FSM's LOD Appeal, issued by the commander, Headquarters, 7th SF Group, on 7 January 2012 [sic] 2013. This memorandum states, the commander fully supports the LODI appeal by applicant concerning the LOD characterization of the FSM's death. The commander states, in January 2012, he directed an Army Regulation 15-6 Commander's Inquiry into the circumstances surrounding the FSM's death. As a result of the findings of that inquiry the commander firmly believes that the initial LODI findings should be re-evaluated. According to Army Regulation 600-8-4, paragraph 2-6c, "Line of Duty determinations must be supported by substantial evidence and by a greater weight of evidence than supports any different conclusion." The investigation did not identify reliable indications or substantiate evidence of wanton illegal drug use or intoxication prior to the night of the FSM's death. Further details are well documented in the IO's 15-6 findings and recommendations. After reviewing the investigation, the commander endorses the applicant in her appeal of her husband's LODI findings and concurs that those findings should be re-categorized as "In the Line of Duty." b. A memorandum, for HQDA [HRC, Casualty and Mortuary Affairs branch], Subject: Letter of Endorsement for FSM's LOD Appeal, issued by the commander, CJSOTF-A, on 7 January 2013. This memorandum states, the commander fully supports the applicant's LOD appeal concerning the death of her husband. The commander states, the initial LOD findings should be reevaluated due to lack of medical records, witnesses, and missing pages within the autopsy report. Based on the commander's review of the evidence, it is his conclusion that there is insufficient evidence to prove that the FSM intentionally consumed illicit drugs. Consequently, he strongly advocates and supports the applicant's appeal of the LODI determination of her husband. 48. On 29 March 2013, the HRC, Casualty and Mortuary Affairs, Branch issued a letter to inform the applicant that, "after a careful review of the [LOD] investigation and appeal, HRC determined that [the FSM] was 'Not in Line of Duty' at the time of his death. The determination was based on evidence in the investigation and autopsy report. This letter also informed the applicant that she had exhausted her administrative remedies and had the right to appeal the decision to the ABCMR. 49. On 26 June 2013, the HRC, Casualty and Mortuary Affairs, Branch issued a letter to inform the applicant that: a. Army Regulation 600-8-4, LOD Policy, Procedures, and Investigations govern LODIs. According to paragraph 1-11, the Special Court Martial Convening Authority (SPCMCA) to which the FSM was assigned at the time of the incident was the responsible party for a formal LODI served as the SPCMCA in the death of the FSM. b. Army Regulation 600-8-4, paragraph 1-10 states the GCMCA acts as final approving authority for formal LODIs on behalf of the Secretary of the Army. The Commanding General for the 82nd Airborne Division served as the GCMCA at the time of death. c. The IO recommended a Not in the LOD-Due to Own Misconduct determination and both the SPCMCA and the GCMCA approved and signed the DD Form 261. d. In January 2012, Headquarters, 7th Special Forces Group (Airborne) directed an Army Regulation 15-6, Procedures for IOs and Boards of Officers investigation be conducted. The IO went to great lengths to interview several individuals with a variety of questions. The contents of this investigation were considered during the relook. e. After a thorough administrative review and a courtesy relook of the LODI and appeal, we have determined the finding of "Not in the Line of Duty-Due to Own Misconduct" shall stand. f. The regulatory guidance and previous evidence remains unchanged. Army Regulation 600-8-4, Appendix B, Rule 3, states injury, disease, or death that results in incapacitation because of the abuse of alcohol or other drugs is not in the line of duty. It is due to misconduct. g. The Armed Forces Medical Examiner autopsy report stated the FSM's cause of death was mixed drug intoxication and the manner of death was accidental. The FSM's autopsy revealed a positive test for opiates, benzodiazepines, and cannabinoid. The IO also stated in his findings that the Chief of Medical Staff at Bagram Air Force Base indicated the FSM "had no legitimate use for the multiple benzodiazepines within his system at the time of death." 50. The applicant provided seven character references in support of the FSM. a. MAJ Cxxxx S. Cxxxxx, Strategic Communication Coordinator, Communications Directorate, Headquarters, International Security Assistance Force and U.S. Forces - Afghanistan, Kabul, Afghanistan wrote: (1) The FSM died in Afghanistan on 28 January 2011. The circumstances surrounding the FSM's death are still under investigation, but MAJ Cxxxx S. Cxxxxx wishes to provide a snapshot of the man he knew. (2) MAJ Cxxxx S. Cxxxxx served with the FSM for five years, from 2002 through 2007 in 1st Battalion, 22nd Infantry Regiment, 1st Brigade, 4th Infantry Division at Fort Hood, TX. MAJ Cxxxx S. Cxxxxx served as the FSM's company commander twice; first in B Company, 1st Battalion, 22nd Infantry Regiment and then in Headquarters Company, 1st Battalion, 22nd Infantry Regiment. MAJ Cxxxx S. Cxxxxx also served two combat tours in Iraq with the FSM, each a year in length. They served together in Tikrit from April 2003 to the end of March 2004 and then again from December 2005 to December 2006. The FSM's contributions to the success of their mission during this period cannot be overstated. His actions contributed directly to the capture of Saddam Hussein in December 2003 and the FSM's sniper unit's exploits during this period have been discussed in several books including Hunting Down Saddam by Robin Moore (author of The Green Berets) and We Got Him, by Oklahoma State Senator Steve Russell, (LTC, U.S. Army retired). (3) The FSM was the type of Soldier that every commander wishes all of his troops was like. The FSM was intelligent, fit, disciplined, brave, and displayed a level of initiative MAJ Cxxxx S. Cxxxxx has only seen in a handful of Soldiers. MAJ Cxxxx S. Cxxxxx observed the FSM's ability to remain calm under pressure and in the face of danger. There is no one MAJ Cxxxx S. Cxxxxx trusted more to accomplish the mission under difficult and dangerous circumstances. In addition to being courageous and lethal on the battlefield, the FSM excelled at small unit leadership and in mentoring the young snipers and infantrymen placed under his charge. (4) The FSM was also a loving husband and father. His domestic life was free from any hint of problems. MAJ Cxxxx S. Cxxxxx never had a single disciplinary issue with the FSM. The FSM also possessed unquestionable character and in every way exemplified all of the Army Values. In short he was the very best the Army had to offer. To MAJ Cxxxx S. Cxxxxx, the FSM is and will always be an American hero, one of the best Soldiers he has ever known, an outstanding man, and a cherished brother in arms. b. Ms. Nxxxxxx Kxxxx, a friend of the FSM's family wrote that she first met the FSM in 2002 while he was stationed at Fort Hood, TX. The FSM served alongside her husband Jxx Kxxxx. At the time, the FSM was dating her best friend, the applicant. (1) When the FSM and the applicant got married, she and her husband hosted their rehearsal dinner and helped every step of the way with the planning and the wedding day. The FSM wanted it to be amazing for the applicant and it absolutely was. (2) Shortly after her husband was stationed at Fort Hood, the guys deployed to Iraq. She was in constant contact with the applicant as she was pregnant with their first child, Axxxx. Before the guys returned home she moved up to Fort Hood to get their home ready the applicant and Axxxx stayed with her for a few weeks while the applicant continued looking for their new house. Once the guys returned, they spent many evenings and most weekends with the FSM's family. (3) A few months after their return, they all went to Hawaii together. During this trip, she really got to know the FSM, see his amazing personality, and witness the love the FSM and the applicant shared first hand. While in Hawaii, She went deep-sea fishing with the applicant and FSM, and while the applicant realized the sea was not her friend, Nxxxxxx Kxxxx enjoyed working with the FSM to reel in a 250-pound tuna. Later that week, Nxxxxxx Kxxxx and the FSM were the only two adventurous enough to walk on the volcano and take some pictures near the flowing lava. The week they returned from Hawaii they all went to New York City for the christening of their God Daughter, the FSM's daughter Axxxx. She and her husband are still very honored to be Axxxx's Godparents. (4) The FSM and the applicant were always there for her when she needed them. If her husband was at a school and she felt uncomfortable at home, the FSM would come and check things out for her and the days both guys were in the field, the applicant and Axxxx would come and stay with her so they both felt safe. (5) When his son Jxxx was born he was over the moon. The FSM was an amazing father and always took the time when he was not at work to spend time with his family. The family was so blessed to be able to take many family trips together and was very lucky to have photos and many videos of each other and their time together. The FSM put the applicant on a pedestal and he loved the applicant and the kids more than anything in the world. (6) The FSM was her husband's best friend and even if they had not spoken in months while he was deployed, as soon as he called they would pick up their conversation where it last ended. The FSM was a fun, loving, kind, adventurous and always wanted to have a good time. (7) When the applicant called to tell Nxxxxxx Kxxxx and her husband about the FSM's passing, they were on a flight the next morning to be there with her and so her husband could help the applicant with the daunting paper work. Nxxxxxx Kxxxx thought that if the roles were reversed, the FSM would have been there for her and taken care of her family the way they try to help the applicant and her children. That is just the kind of man the FSM was. Nxxxxxx Kxxxx enjoyed all of the time she spent with the FSM and his family and although he is no longer with them, the lessons he taught his children and the love he shared with the applicant will live on through them and everyone who has had the pleasure of meeting him. c. Sergeant (SGT) Rxxx Yxxxxx, Retired, served with the FSM in Fort Hood, TX from December 2004 through December 2005 and in Iraq from December 2005 through September 2006 with the scout platoon assigned to Headquarters and Headquarters Company, 1st Battalion, 22ndInfantry Regiment, 4th Infantry Division. (1) SGT Rxxx Yxxxxx states the FSM was always a leader he could depend on, the type of leader that he would always look to for answers. He was the big brother, but also the father figure of many men. The dedication the FSM had for his job and his men was comparable to no one else. He knew his job better than anyone Rxxx Yxxxxx knows. (2) SGT Rxxx Yxxxxx states that the FSM saved his life. In September 2006, an IED struck SGT Rxxx Yxxxxx's Bradley Fighting Vehicle. Flames engulfed SGT Rxxx Yxxxxx and his crew. SGT Rxxx Yxxxxx climbed out of hatch above the gunner's seat, jumped from the vehicle breaking his leg, and rolled into a canal extinguishing the flames. The FSM and another SSG pulled him from the canal, when no one else knew where he was, and carried him to safety. The canal was very steep and it was quite a feat for them to be able to carry him out. After they carried him to where the helicopters were going to pick them up, the FSM stayed with him and helped him through the tough situation. (3) The FSM lived in the trailer next to his when they were in Camp Liberty, though they were not at the trailers often due to mission requirements. SGT Rxxx Yxxxxx remembers going outside late at night and just having long conversations with the FSM about anything and everything. The FSM would talk about his wife, daughter, and life at home in general. Things were good then. (4) Life changes quickly and without warning sometimes. SGT Rxxx Yxxxxx is very frustrated with how difficult the Army has made it for a family that has gone through so much and does not deserve this extra burden. The FSM was a good man and his wife and kids are great people. SGT Rxxx Yxxxxx is a proud Army Soldier who cannot understand how the Army made things so difficult for a family whose husband and father also served so proudly for our great nation. The FSM's accolades are proof of his dedicated service. d. CPT Wxxxxxx Lxxxx, 2nd Battalion, 7th SF Group, served as the FSM's team leader from April 2010 until August 2010, when he was wounded. (1) CPT Wxxxxxx Lxxxx states, the FSM was an outstanding NCO who impressed CPT Wxxxxxx Lxxxx with his knowledge, professionalism, his ability to accomplish any task given, and his initiative. The FSM was truly an NCO that CPT Wxxxxxx Lxxxx wanted on his team. The FSM was a highly decorated combat veteran and CPT Wxxxxxx Lxxxx stated he was lucky to have the FSM working under him. (2) As the senior engineer SGT on Operational Detachment A (ODA), the FSM was the senior subject matter expert when it came to combat engineer tasks and knowledge and he was responsible for helping CPT Wxxxxxx Lxxxx to maintain accountability of all of the team's property on the hand receipt. (3) During their deployment, the FSM was responsible for maintaining the ODA's Operational Funds (OPFUND), Commander's Emergency Response Program (CERP) funds, and other money. He kept everything in order and CPT Wxxxxxx Lxxxx never had any reason to question his integrity for any reason. He showed a wealth of knowledge when teaching and mentoring their Afghan counterparts and brought a huge amount of experience to the fight. (4) Lastly, the day CPT Wxxxxxx Lxxxx was wounded the FSM was in Kandahar to clear their OPFUND and CERP fund receipts when he was flown. The FSM remained by his bedside the entire time CPT Wxxxxxx Lxxxx was in Kandahar. The FSM was able to give CPT Wxxxxxx Lxxxx's wife several daily reports on how he was doing which helped to give her a little peace of mind during a tough time. CPT Wxxxxxx Lxxxx is very grateful for the FSM remaining by his side throughout his time in Kandahar and states he could never repay the FSM for what he was able to do for his family. (5) In a few short months the FSM was able to make a huge impression on CPT Wxxxxxx Lxxxx and in his eyes, the FSM exemplified the true essence of an Army SF NCO. CPT Wxxxxxx Lxxxx would have gladly served with this man in a combat zone repeatedly. The FSM is the Soldier you want on your left or your right. e. CPT Lxxx D. Mxxxx, Operations Officer, Headquarters, 95th Civil Affairs Brigade, Fort Bragg, NC states the FSM was a great person, husband, father, friend, and Soldier. One of the best people CPT Lxxx D. Mxxxx ever met and he hopes he can make the Board see the FSM the way everyone around him did. (1) In the three years CPT Lxxx D. Mxxxx knew the FSM as a friend, he was impressed with his dedication to his wife, children, family, friends, and the Army. The FSM always demonstrated a giving and generous nature, as he was always willing to help those around him. CPT Lxxx D. Mxxxx shared many birthdays, holidays, and other special occasions with the FSM and his family witnessing the type of values that all should strive to replicate; respect, belonging, generosity, responsibility, and tradition to name a few. Their environment was always filled with love, happiness, and caring for one another when CPT Lxxx D. Mxxxx and his family were around; something that stuck with CPT Lxxx D. Mxxxx as an example of how his family should be. (2) After numerous conversations with the FSM's colleagues and friends, CPT Lxxx D. Mxxxx concluded that the FSM was that rare person whose intelligence, work ethic, and drive far outstrip those of his friends and peers. The most indicative aspect of the FSM's ability to succeed in life as a family man and an NCO in the U.S Army was his character. He held values in the highest personal regard, and his integrity was beyond reproach. The Army needs more Soldiers with the same esteem for honor and decency the FSM had. CPT Lxxx D. Mxxxx knows the Board does not need this letter to learn what an incredible human being the FSM was, because he is sure the Board will get many just like this one, which should let the Board know the kind of incredible individual the FSM really was. f. TSgt Axxxx Sxxxxxx, 21st Special Tactics Squadron, Air Force Special Operations Command states he is writing this statement a year to the day after the loss of the FSM from the same location he and the FSM served in together. TSgt Axxxx Sxxxxxx recently learned that an LODI found the FSM death not in the LOD. It is for this reason that he feels bound to speak on behalf of a great man, Soldier, and father who no longer has a voice in which to defend himself. (1) TSgt Axxxx Sxxxxxx knew the FSM personally and professionally for 3 years prior to his ultimate sacrifice. During this time, he witnessed a man devoted to his work and the pursuit of excellence in all that he did. The FSM was the embodiment of integrity. When TSgt Axxxx Sxxxxxx learned that he and the FSM were both going to the same area of Afghanistan in Uruzgan Province, he was excited to be working alongside a man he called a friend. He was excited to work alongside a man who was devoted to getting the job done and done properly. (2) For those who read this and are not familiar with Afghanistan, Uruzgan Province is merciless. Only the best, most proficient, and highly skilled members of Special Operations go there. Fire Base Cobra, as those who have bled there still affectionately call it, is a test of every Special Operator who has ever gone there. It was no different for the FSM. He proved to be more than capable of handling the task and performing with honor and courage. (3) The FSM performed his duties with unwavering dedication to the mission. When he was shot during an intense firefight, he continued on mission despite the pain. The FSM was involved in no less than four life threatening events, yet continued to stay and fight. When the FSM was injured in an IED strike, everyone expected him to be sent home. However, he requested to stay out of a sense of duty. Most men would have gone home after being injured in such a way or after being shot, but the FSM remained to finish what he started. He stayed to protect his teammates. (4) TSgt Axxxx Sxxxxxx was not privy to statements that made by his former teammates or the things that were said about the FSM's character first hand. However, he does state, at no time was there a question of his dedication to his job, faithfulness to his wife, or love of his children. It is TSgt Axxxx Sxxxxxx personal belief that there were statements made by the team to cover up their own wrongdoing. He feels they used the FSM's passing as a scapegoat to protect themselves from future investigation. The rumors of indiscretions on his part are false. Having spoken with the FSM two days before his death, TSgt Axxxx Sxxxxxx states he can honestly say that his focus was on returning to his wife and children to whom he was completely dedicated. g. SSG Jxxxxx Wxxxx, C Company, 2nd Battalion, 20th SF Group, he met they FSM in January 2008. They started the SF Qualification Course (Q Course) together. At the time the FSM was a SFC and SSG Jxxxxx Wxxxx was a SPC. (1) The FSM came from an 11B background and SSG Jxxxxx Wxxxx had a 19D (Cavalry Scout) background. Professionally, the FSM embodied what an Army NCO should be; he was always professional, intelligent, wise, constructive and extremely motivated. The FSM was always willing to provide guidance to younger Soldiers or to those equal ranking members who lacked subject specific knowledge. He was a Soldier who was wise and experienced beyond his age. When fellow students needed guidance or advice they always went to the FSM. Even with the frustrations of the Q course and the mixture of personalities and people, he never once saw the FSM lose his temper; one of his most admirable qualities. SSG Jxxxxx Wxxxx was recycled during a portion of the year plus course. The FSM was there to make sure that he did not take it too hard and to make sure that he still had his head in the game. The remarkable part of that is in an increasingly impersonal and uncaring world the FSM took the time to make sure a fellow Soldier was still doing well. He was a great role model for younger Soldiers moving up through the ranks. (2) SSG Jxxxxx Wxxxx is from TX, and during the Q Course he did not have any family or close friends to spend holidays with. He spent every holiday for the better part of two years with the FSM and his family, at their house. These holidays include Christmas, Thanksgiving, and Super Bowl Sundays. SSG Jxxxxx Wxxxx states he never felt so at home at a place that was not his home. Beyond holidays, he had dinner with the FSM and his family at least one time a week, sometimes more. When he needed a stress-free place to get away from the stresses of the course their home was always open. In a career field full of such deceit and destructive family life, this family was close and happy. (3) Professionally speaking, he never once witnessed the high stress of the course leak into the FSM's home. The FSM and the applicant worked together as a unit and supported each other. The FSM was a family man who loved and cared about his family openly and completely. The FSM's loss was a very tough to take. He is not the first friend that SSG Jxxxxx Wxxxx lost but defiantly one of the closest. The SF lost a dynamic leader and great Solider, more importantly a great father, loving husband and exceptional man was lost. There are no winners in this situation. 51. The FSM's daughter provided the following letter, wherein she writes, "Has anything turned your life upside down? My dad died January 28, 2011, in his sleep and that's what turned my life upside down. He was in the Army, 7th Group, and in the Special Forces. He died because of his injuries, my mom has been fighting for me and my brother for almost 3 years now. My brother didn't know anything because he was only 3. I only understood my dad isn’t coming home anymore. And he was 2 days away from coming home to us. My mom says if we keep crying and being negative about it we bring negative energy to our family. Today I wanted to honor my father and the sacrifices he made for this country!" 52. The Army Review Boards Staff Psychologist provided an advisory opinion on 2 March 2016, wherein she states: a. The FSM enlisted in the U.S. Army on 1 February 2001, where he served as an SF Engineer SGT for approximately 10 years, until his untimely death on 28 January 2011 while deployed to Afghanistan. Throughout his military career, he deployed five times. His deployments include a three-month tour to Cuba in April 2002; two 12-month combat tours to Iraq in April 2003 and December 2005, respectively; a two-month combat tour to Afghanistan in July 2009; and a second combat tour to Afghanistan of unknown length in 2010, which ended abruptly for the FSM with his unexpected death. b. As the most highly decorated member of the 2nd Battalion, 7th SF Group at the time of his death, the FSM was awarded two Bronze Star Medals, one with Combat Distinguishing Valor Device for distinguishing himself by his heroic achievement, acts of valor in a combat zone, and acts of heroism involving conflict with an armed enemy. He also received a Purple Heart for wounds he received in action. Additional decorations included, but were not limited to, an Army Commendation Medal with Distinguishing Valor Device, an Army Commendation Medal, and an Army Good Conduct Medal. c. The FSM's performance as an SF Soldier invariably received laudable praise and commendation throughout his military career. NCOERs consistently rated him "among the best" across a spectrum of factors, including leadership, competence, training, physical fitness, military bearing, responsibility, and accountability. d. On 28 January 2011, the FSM was found unresponsive in his living quarters by one of his team members, specifically sitting upright in his bed. He had returned from a mission where he had to live with local nationals under austere conditions. On 27 January 2011, he reported to the team surgeon that he was feeling ill. The team surgeon gave him Benzonatate and Mucinex medications used to suppress cough and loosen mucus in the chest. He was last seen alive at approximately 1000 hours on 28 January 2011. Later that day, at approximately 1234 hours, team members found him unresponsive and CPR was administered with no success. The Benzonatate and Mucinex medications were found at his bedside. No alcohol, illegal drugs, or drug paraphernalia were found at the scene and there was no evidence of foul play. An autopsy identified mixed drug intoxication as the cause of death and ruled his manner of death accidental. A behavioral health opinion was also obtained, in which suicide was determined an unlikely cause in his death. e. On August 2011, a LODI was conducted in accordance with Army Regulation 600-8-4 to determine whether misconduct had been involved in the death of the FSM. The IO appointed to conduct this investigation concluded that he believed the incident resulting in the FSM's death to be a result of voluntary intoxication due to the deceased service member's own misconduct, not in the line of duty. f. On April 2012, an Army Regulation 15-6 investigation was conducted for detailed fact gathering and analysis into the death of the FSM and the support provided to his widow. The findings and recommendations of this investigation included a recommendation that the Group Command should assist the applicant in submitting evidence to the ABCMR to appeal the LOD determination with the evidence collected by the Army Regulation 15-6 investigation, citing the below, as written in the memorandum for Commander, 7th Special Forces Group (Airborne), dated 27 April 2012. (1) The testimonies of those who were last with him can establish that [the FSM] was in pain and seeking medical attention by multiple sources for relief from 1) pain in his leg due to shrapnel, 2) severe headaches stemming from an IED blast, and 3) trouble swallowing from upper respiratory distress." (2) "The only indication of drug use was solitarily found in [the FSM's] blood, which indicates the use of illegal drugs was an acute, isolated event... The autopsy shows normal ventricles in the brain and no indications of controlled drugs were found in the heart tissue or body fat... This does not preclude the possibility [the FSM] was given the substances under false pretense by a third party." (3) "To legally find [the FSM] Not in the Line of Duty, the Army would have to show intentional use of the illicit substances. This stated, one cannot unequivocally determine whether the illicit substances were consumed by suicide, accidentally, intentionally, or under duress with the evidence at hand. None of the personal effects collected by either the SCMO or by CID, at/around the death scene, revealed a container to hold any of the illicit substances found within [the FSM's] blood." (4) "There is not enough evidence to show [the FSM] received treatment for an IED blast on [30 November 2010] let alone was prescribed medication to treat the symptoms resulting from the IED blast due to missing medical records for [the FSM's] TBI treatment in TK. Interviews with the team members do indicate [the FSM] was [medically evacuated] from the blast and returned to the VSO site approximately five days later. The lead Neurologist/Neurointensivist in RC-South, believes it is probable [the FSM] was prescribed Diazepam as part of his TBI treatment. This conclusion was drawn from personal experience of seeing this practice being conducted by doctors in theatre in Afghanistan in his tour in country." g. The applicant submitted an application to the ABCMR with evidence collected by the Army Regulation 15-6 investigation conducted into her spouse's death in Afghanistan, to appeal the Not In the Line of Duty determination made regarding his 28 January 2011 unexpected death in theatre. h. Taking into consideration the available documentation, and consistent with the findings of the Army Regulation 15-6 investigation, the available record reasonably supports a determination that the FSM's death occurred in the LOD. REFERENCES: Army Regulation 600-8-4 prescribes policies and procedures for investigating the circumstances of disease, injury, or death of a Soldier. It provides standards and considerations used in determining LOD status. a. Paragraph 2-1 states LOD determinations are for protecting the interest of both the individual concerned and the U.S. Government where service is interrupted by injury, disease, or death. A person who becomes a casualty because of his or her intentional misconduct or willful negligence can never be said to be injured, diseased, or deceased in LOD. Such a person stands to lose substantial benefits because of his or her actions; therefore, it is critical that the decision to categorize injury, disease, or death as not in LOD only be made after following the deliberate, ordered procedures described in this regulation. b. Paragraph 2–3 states LODIs are conducted essentially to arrive at a determination of whether misconduct or negligence was involved in the disease, injury, or death and, if so, to what degree. Depending on the circumstances of the case, an LODI may be required to make this determination. A formal LODI must be conducted in circumstances where an: (1) injury, disease, death, or medical condition that occurs under strange or doubtful circumstances or is apparently due to misconduct or willful negligence; (2) injury or death involving the abuse of alcohol or other drugs; and/or (3) self-inflicted injuries or possible suicide. c. Paragraph 2-5 states a formal LODI is a detailed investigation that normally begins with DA Form 2173 completed by the Medical Treatment Facility (MTF) and annotated by the unit commander as requiring a formal LOD investigation. The appointing authority, on receipt of the DA Form 2173, appoints an investigating officer who completes DD Form 261 and appends appropriate statements and other documentation to support the determination, which is submitted to the GCMCA for approval. d. Paragraph 2-6 states decisions on LOD determinations will be made in accordance with the standards set forth in this regulation. Injury, disease, or death proximately caused by the Soldier’s intentional misconduct or willful negligence is "not in LOD—due to own misconduct." Simple or ordinary negligence or carelessness, standing alone, does not constitute misconduct. An injury, disease, or death is presumed to be in LOD unless refuted by substantial evidence contained in the investigation. Line of Duty 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: (1) All direct evidence, that is, evidence based on actual knowledge or observation of witnesses; and/or (2) 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. (1) 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. (2) The weight of the evidence is not determined by the number of witnesses or exhibits but by the investigating officer and higher authorities accomplishing the following actions: (1) Considering all the evidence; (2) 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; and (3) Considering other signs of truth. (3) The rules in appendix B will be considered fully in deciding LOD determinations. These rules elaborate upon, but do not modify, the basis for LD determinations. e. Table 3-1 states LOD investigations will be completed 30 calendar days after the incident. f. Paragraph 3-3 states the investigation will ascertain dates, places, persons, and events definitely and accurately. The commander must ensure that the investigation contains enough pertinent information and data to enable later reviews to be made without more information. All findings of fact should be supported by exhibits. Copies of military or civilian police accident reports, pertinent hospitalization or clinical records, autopsy reports, and written statements shall be attached as exhibits when appropriate. The commander will thoroughly review chapters 3 and 4 for any additional pertinent procedures or special considerations before conducting and completing the investigation. Promptness in conducting the investigation is of great importance. Delays often result in failure to secure important data and information, possibly resulting in an improper determination. g. Paragraph 3-8 states the procedures for formal boards of officers and investigations contained in Army Regulation 15–6, chapter 5, are not applicable to formal LOD investigations. However, the general guidance of Army Regulation 15–6, chapter 5, applies unless this regulation provides more specific or different guidance. (1) The IO must be free from bias or prejudice. The IO should never begin the investigation with predetermined ideas as to the cause of the injury, disease, or death. To make a thorough and impartial investigation, the IO should determine the actual facts, not as reported, but as they actually occurred, as far as possible. The IO should then be able to make an intelligent and accurate determination. Promptness is crucial in conducting and completing the investigation. Delays often result in the failure to secure important information. (2) The MTF commander (attending physician or patient administrator) will initiate and complete section 1, DA Form 2173. This section will show the nature and extent of the injury or disease. In the case of death, it will show the presumptive medical cause of death. The MTF will send the original DA Form 2173 to the Soldier’s unit commander for completion and a copy will be forwarded to the supporting Military Personnel Office for information and monitoring. (3) The unit commander will complete section 2, DA Form 2173, to show duty status at the time of the incident. If the IO was not provided the completed DA Form 2173 by the appointing authority, the IO will request it from the unit commander. If the unit commander has not completed the form or obtained it from the MTF, the unit commander is responsible for requesting it from the MTF. Sections 1 and 2 must be completed. In cases requiring a formal investigation, the commander need not enter the details of the incident in item 30 only the reason a formal investigation is required. The IO will provide the details of the incident when completing DD Form 261. The IO will collect the evidence as follows: (4) The IO will ascertain dates, places, persons, and events definitely and accurately. The IO must ensure that the investigation contains enough pertinent information and data to enable later reviews to be made without more information. All findings of fact must be supported by exhibits. Written statements by the IO describing matters personally observed and learned by the IO are convenient means to document facts and, when appropriate, will be attached; however, a statement by the IO should not be used as a substitute for witness statements when they can be obtained. The following evidence should be included in formal reports of investigation concerning misconduct and LOD under the provisions of this regulation: (a) All facts leading up to and connected with an injury, disease, or death. (b) Copies of military or civilian police reports, pertinent hospitalization or clinical records, autopsy reports, records of coroner’s inquests or medical examiner’s reports, pathological and toxicological studies, and boards of inquiry for missing persons. (c) Evidence regarding the state of intoxication and the extent of impairment of the physical or mental faculties of any person involved and connected with the incident, when relevant. Evidence as to the general appearance and behavior, clear and rational speech, coordination of muscular effort, and all other facts, observations, and opinions of others bearing on the question of actual impairment shall be made to determine the quantity and nature of the intoxication agent used and the period of time over which used by the person. Results of any blood, breath, urine, or tissue tests for the intoxicating agent should also be obtained and submitted as exhibits (actual lab slip, if possible). (d) Evidence regarding the mental competence or impairment of the deceased or injured person, when relevant. In all cases of suicide or attempted suicide, all possible evidence bearing on the mental condition of the deceased or injured person shall be obtained. This will include all available evidence about the person’s social background, his or her actions and moods immediately prior to the suicide or suicide attempt, any troubles that might have motivated the incident, and any pertinent examination or counseling by specially experienced or trained persons. Personal notes or diaries of the deceased are valuable evidence. In the case of a death by suicide or a death resulting from an accident involving unusual or suspicious circumstances (for example, a single car motor vehicle accident) or where the cause of death is not clear, obtain the opinion of a mental health officer as to the probable causes of the self-destructive behavior and whether the Soldier was mentally sound at the time of the incident. (e) Additional pertinent procedures or special considerations as outlined in chapter 4 should be reviewed before conducting and completing the investigation. (2) If an adverse determination is contemplated against the Soldier, based upon information obtained in the investigation, the IO will notify the Soldier, in writing, of the proposed adverse determination and provide a copy of the investigation and the supporting evidence. The Soldier will be warned per paragraph 3–3b and given a reasonable opportunity to reply, in writing, and to offer rebuttal. Certified mail should be used and the mailing receipt and return receipt (if any) attached to the LOD investigation. If no response is received, the IO may conclude the investigation and finalize his or her determination. If a response is received, the IO will review and evaluate the Soldier’s response prior to making the final determination. (3) When the IO has completed the investigation and prepared the report, the IO will mark the appropriate LOD determination in item 11 of DD Form 261 in cases involving injury, disease, and death. In every formal LOD investigation, the IO will determine if there is substantial evidence of misconduct or willful negligence to support a decision of "not in line of duty-due to own misconduct." To arrive at such decisions, the rules in appendix B will be fully considered. The IO will complete the box to the right of item 11 and send the report to the appointing authority. h. Paragraph 4-4 states LOD actions should be completed within the time limits given in table 3–1 [30 days after the incident]. When an LD investigation, either formal or informal, is not completed within the given time, the reasons the report is late should be made part of the remarks section of DA Form 2173 for informal reports and as part of the investigating officer’s comments on DD Form 261 for formal reports. These comments can be expanded upon as necessary by the appointing authority, reviewing authority, or final approving authority. The mere failure to complete an action within the prescribed time or the failure to provide reasons the report is late is not a basis to disapprove, reverse, or change an otherwise proper determination. i. Paragraph 4-10 states an injury incurred as the "proximate result" of prior and specific voluntary intoxication is incurred as the result of misconduct. For intoxication alone to be the basis for a determination of misconduct with respect to a related injury, there must be a clear showing that the Soldier’s physical or mental faculties were impaired due to intoxication at the time of the injury, the extent of the impairment, and that the impairment was a proximate cause of the injury. j. Paragraph 4-11 states the MTF 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 LOD" 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. k. 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 "in line of duty." To arrive at such decisions, several basic rules apply to various situations. The specific rules of misconduct are listed below. (1) Paragraph B–1 (Rule 1) states injury, disease, or death directly caused by the individual’s misconduct or willful negligence is not in line of duty. 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 in the line of duty; and (2) whether it was due to misconduct. (2) Paragraph B–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) Paragraph B–3 (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. Any wrongfully drug-induced actions that cause injury, disease, or death are misconduct. 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: 1. Army Regulation 600-8-4 states that LOD determinations are for protecting the interest of both the individual concerned and the U.S. Government where service is interrupted by injury, disease, or death. This regulation also requires LOD investigations be completed 30 calendar days after the incident. Promptness in conducting the investigation is of great importance. Delays often result in failure to secure important data and information, possibly resulting in an improper determination. a. The FSM died in Afghanistan on 28 January 2011. His autopsy shows his blood and/or urine tested positive for multiple opiates, multiple benzodiazepines, and tetrahydrocannabinol (THC). The autopsy states his cause of death was mixed drug intoxication and his manner of death was ruled accidental. (1) The evidence of record shows that the FSM death occurred under strange or doubtful circumstances. His unit appears was aware that his death was due to mixed drug intoxication. (2) The unit or certain team members appear to have believed that at least one team member was using drugs during the deployment. This is reflected in the statements from some of the spouses and one team member who recalled the FSM confronting and unnamed team member about his drug use, confiscating the drugs, and throwing these drugs into the river. (3) One of the team members stated that the unit was aware that the FSM's death was drug related and instead of drug testing the team members immediately, the command waited 3 months to conduct drug testing. (4) The FSM's command assigned an IO to investigate his death 7 months after his death, even though Army Regulation 600-8-4 requires LODI be completed within 30 days of the incident. b. The initial LODI did not comply with Army Regulation 600-8-4 in that the LODI was conducted over 6 months outside the time line prescribed by the regulation. This delay seriously affected the ability to secure important data and information, such as the FSM medical treatment records pertaining to his TBI treatment. Additionally, while the unit eventually conducted an LODI, which certainly protected the interest of the government, this long delay did not protect the best interest of the individual, the FSM's family. 2. Army Regulation 600-8-4 states that the IO must be free from bias or prejudice. The IO should never begin the investigation with predetermined ideas as to the cause of the injury, disease, or death. To make a thorough and impartial investigation, the IO should determine the actual facts, not as reported, but as they actually occurred, as far as possible. The IO should then be able to make an intelligent and accurate determination. Promptness is crucial in conducting and completing the investigation. Delays often result in the failure to secure important information. a. In this case, and by IO Mike's own admission, he arrived to the unit 7 months after the applicant died and was assigned as the IO to conduct the FSM's LODI. b. Mike admitted that he was given a complete run down of the situation and that he received a complete packet to include the CID investigation, autopsy report, and the statement of several individuals. He states, that JAG or the command told him read the evidence provided to him and come up with his recommendation in 7 days. The he attempted to obtain a missing DA Form 2173 and a few medical records but he was unsuccessful in his attempt. (1) Mike did not personally procure any of the evidence he used to make a determination in the FSM's LODI. He did not personally interview any of the witnesses or persons of interest, or establish the facts of the case. (2) Mike based his determination on the information he was provided. The evidence shows that Mike did not conduct an adequate LODI; he read the paperwork the FSM's command chose to provide, and he wrote a report. As such, it would have been very difficult for him to come to an independent and unbiased determination. (3) Further, because so much time elapsed between the FSM's death and the date of Mike's assignment as the IO, the opportunity to collect pertinent information, such as the medial records pertaining to the FSM's TBI and concussion, were no longer available. c. Mike's assignment and performance as IO, and the LODI document he provided did not comply with the intent or the regulatory criteria listed in Army Regulation 600-8-4. 3. Army Regulation 600-8-4 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 "in line of duty." To arrive at such decisions, several basic rules apply to various situations. a. Paragraph B–1 (Rule 1) of Army Regulation 600-8-4 states injury, disease, or death directly caused by the individual’s misconduct or willful negligence is not in line of duty. 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: (1) whether the injury, disease, or death was incurred or aggravated in the line of duty; and (2) whether it was due to misconduct. (1) The FSM sustained an IED blast injury in November 2010, which resulted in TBI, a concussion, and a perforated eardrum. The medical records pertaining to this injury are not available, however, the evidence does show he had trouble sleeping, and suffered from severe headaches, which often caused vomiting. The FSM became ill in December 2010. He developed a severe cough, congestion in his chest, and he had difficulty swallowing. He also complained of fever and body aches and pains. He went to see medical personnel for this condition shortly before his death, and they gave him Benzonatate and Mucinex. At the time of his death, only the Benzonatate and Mucinex were located at his bedside. A through CID investigation was unable to locate any of the drugs found in the FSM's system on his person, among his possessions, or in the surrounding area. (2) The evidence of record confirms that the FSM sustained a number of injuries, and he became ill during the conduct of his duty. He also sought out medical attention a few hours before he was found dead. (3) Nobody ever witnessed the FSM taking illegal drugs, and nobody was found to be or admitted being present when the drugs entered the FSM's system. However, as the applicant's counsel stated, it is reasonable to assume the FSM swallowed the drugs because CID and other investigators found no trace of any delivery. However, the following alternatives merit consideration: (a) "Service member decided to swallow a combination of heroin, marijuana, and other drugs, wanting to use illegal drugs to get high, (apparently because swallowing a mixed drug cocktail would be less obvious than injecting and/or smoking that combination of drugs)." However, based on the FSM's military record, the statements of his teammates and family, and the postmortem psychological evaluation, and the autopsy report, it is unlikely he took drugs with the intent to self-harm or to get high because the autopsy revealed he was not a drug user. The evidence of record indicates that this scenario is the least likely of the three. (b) The FSM felt run down and/or was in pain and took the drugs found in his system knowing they were illegal, to help with sleep. However, as previously stated, given the FSM's service record and exemplary character and nature of the FSM, this scenario is also unlikely. Especially given that he was scheduled to report to a service school soon after returning home. (c) "Service member took some misidentified/unidentified pills he had previously found on an operation, thinking that they were (or would be) authorized medications, that would provide greater pain relief than the ibuprofen available from the team medic." The evidence of record indicates that the team's medics were treating the FSM for his headaches, pain, congestion, and sleeplessness. Further, the FSM's teammates indicate he was able to perform his job, and he always "kept his head on a swivel." If he was using drugs found in his autopsy while on mission, whether obtained locally or not, and the effects of those drugs were severe enough to cause repertory collapse and death, other team members, and the medics would have noticed and the FSM would have been incapable of performing his duties as an SF operator. As such, this scenario is also unlikely given the evidence of record. (d) "Service member accepted some pills from a trusted other person, with the understanding that they were (or would be) authorized medications, that would provide greater pain relief than the ibuprofen available from the team medic." This scenario is the most likely of the three. As previously stated, based on the FSM's military record, and the evidence of record, he was two days away from going home to his family. He was extremely ill and in a significant amount of pain and discomfort due to injuries sustained during his deployment. He went to see a medic and received medication to suppress his cough and loosen the congestion in his chest. He was moving slowly and complaining that he hurt all over. It is clear that he was seeking relief from his physical discomfort and accepting medication he believed to be authorized from someone he trusted would not be unusual in this situation. (e) The possibility that the FSM was the victim of foul play also merits consideration. b. Paragraph B–2 (Rule 2) Army Regulation 600-8-4 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. (1) Purposely taking drugs with the intent to get high, to help himself fall asleep, or to self-harm would equate to misconduct or willful negligence. (2) Accepting medication believed to be authorized form a trusted person would violate Army Regulation, but it does not rise to the level of misconduct, at most, such an action constitutes simple negligence. c. Paragraph B–3 (Rule 3) Army Regulation 600-8-4 states injury, disease, or death that results in incapacitation because of the abuse of 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. Any wrongfully drug-induced actions that cause injury, disease, or death are misconduct. (1) The FSM's autopsy report show he was not a drug abuser, the medical examiner indicated that based on the test conducted on his brain, lungs, and fat cell this drug ingestion was a single isolated event. (2) There is no evidence to indicate he ingested the drugs with the intent of getting high and nobody appears to have been present when the drugs entered his system. (3) It is impossible to state that the FSM abused drugs without showing he willfully ingested them with the intent of getting high or because he developed a dependency on drugs. Absent such evidence, it is inappropriate to apply the provisions of Army Regulation 600-8-4, paragraph B–3 (Rule 3) as the sole reason to determine his death was "Not in LOD-due to own misconduct," which is what occurred in this case. 4. Counsel argued that, "Army Regulation 600-8-4 requires substantial evidence to support a finding of intentional misconduct or willful negligence. There is no substantial evidence of intentional misconduct or willful negligence [in this case], which required the choice of the first alternative. Subsequent to both an exhaustive CID investigation, an LODI and a later Army Regulation 15-6 investigation, all that is left is a conclusion that [IO Mike and] the Operations Center decided that because drugs were present in the FSM's body, their ingestion must have been intentional, and, because it was intentional, it must have been abuse. Given the undisputed facts, and, at a minimum, the alternatives identified, this conclusion lacks any logical or legal foundation, and is far from the substantial evidence required by the regulation to overturn an In LOD presumption... [Further,]... The determination of the Casualty and Mortuary Affairs Operations Center appears to have been based on a theory of strict liability, rather than any substantial evidence test; that is, the mere presence of drugs automatically equates to abuse, sufficient to overwhelm any and all other possibilities, regardless of evidence or the lack thereof. This faulty conclusion that a single occurrence of drug ingestion automatically equals drug abuse is contrary to the intent of Army Regulation 600-8-4." 5. It is allowable to infer wrongfulness of drug use by the mere presence of an illegal drug in a subject's body. In this case, however, especially given the exemplary character and nature of the FSM, a reasonable mind might not reach the same conclusion, especially after reviewing the evidence presented in the second investigation. 6. It remains that the drug use was either wrongful or not, and reasonable minds can differ on which side they would fall. The Board does not need to resolve the issue though to reach its conclusion. Regardless of whether one believes the use was wrongful because of the allowable inference of wrongfulness, it is difficult to believe in this case, given the FSM's character and nature of service that an allowable inference is enough to rise to the level of "substantial" evidence as required by regulation. Given the severe implications of an adverse finding to service members and their families, even if the outcome might be more likely than another might, the regulation adds the additional requirement that the evidence must be more than an inference or a belief and must be substantial. 7. Neither the IO, the JAG officers, the command, nor the Casualty and Mortuary Affairs Operations Center provided any justification to explain why they believed the evidence was substantial. Such explanation lacking, the "not in the LOD" finding, though supported by some evidence, was not supported by substantial evidence, and therefore, does not meet the regulatory criteria for a not in the LOD finding. //NOTHING FOLLOWS// ABCMR Record of Proceedings AR20150000953 Enclosure 1 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS ABCMR Record of Proceedings (cont) AR20150002565 2 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 1 ABCMR Record of Proceedings (cont) AR20150002565 19 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 2