IN THE CASE OF: BOARD DATE: 25 January 2018 DOCKET NUMBER: AR20150017777 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: 25 January 2018 DOCKET NUMBER: AR20150017777 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 be corrected by showing the injuries he incurred in a motor vehicle accident on 21 December 2013 were found to be in the line of duty. ___________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: 25 January 2018 DOCKET NUMBER: AR20150017777 THE BOARD CONSIDERED THE FOLLOWING EVIDENCE: 1. Application for correction of military records (with supporting documents provided, if any). 2. Military Personnel Records and advisory opinions (if any). THE APPLICANT'S REQUEST, STATEMENT, AND EVIDENCE: 1. The applicant, the mother and legal representative of a former Soldier (hereafter referred to as the Veteran), requests amendment of the Veteran’s military record to show his injury was “in line of duty.” She also requests a personal appearance on behalf of the Veteran. 2. In the alternative, she requests correction of the Veteran's record to show his injury was service-connected. 3. The applicant states this request is due to a lack of investigation into the Veteran’s personal issues and the medication he was prescribed to treat symptoms of post-traumatic stress disorder (PTSD). Evidence was submitted, but no explanation can be given to support the prescription given to her son prior to his motor vehicle accident. 4. The applicant provides: * DD Form 261 (Report of Investigation and Line of Duty Misconduct Status) * Letter of Guardianship * Letter from the Casualty and Mortuary Affairs Operations Center (CMAOC), U.S. Army Human Resources Command (HRC) * Letter from the applicant * DD Form 214 (Certificate of Release or Discharge from Active Duty) * Text messages CONSIDERATION OF EVIDENCE: 1. The Veteran enlisted in the Regular Army for 4 years and 24 weeks on 22 March 2006 and he held military occupational specialty 91B (Wheeled Vehicle Mechanic). 2. He served in Korea from 14 October 2006 to 13 October 2007. He was assigned to Fort Lewis, WA, where he was promoted to private first class (PFC)/E-3 in February 2009 and to specialist four/E-4 in September 2009. 3. He served in Iraq from 21 January 2010 to 12 January 2011. He was advanced to sergeant (SGT)/E-5 on 1 February 2012. He reenlisted on 13 February 2013 and he was assigned to Korea again in July 2013. 4. On 17 December 2013, the Veteran departed his unit in Korea on mid-tour leave for 30 days. On 21 December 2013, he was involved in a motor vehicle accident in Colton, OR. He was operating a jeep that left the highway and rolled over a few times until it came to rest upside down, wedged between two trees at the bottom of a gully. He was airlifted and admitted to a hospital. Testing found his blood alcohol content (BAC) was .17 percent. 5. A DA Form 2984 (Very Seriously Ill/Seriously Ill/Special Category Patient Report), dated 21 December 2013, shows after the Veteran was involved in a motor vehicle accident he sustained multiple extensive base of skull fractures, bilateral femur fracture, incomplete I fracture with bilateral zygomatic arch, multiple facial fractures, intra-parenchymal hemorrhage (IPH), and pneumocephalus (air in cranial cavity). He was in a coma. 6. On 7 February 2014, an investigating officer (IO) was appointed to perform a line of duty investigation involving the Veteran's injury, in accordance with Army Regulation (AR) 600-8-4 (Line of Duty Policy, Procedures, and Investigations). 7. A Memorandum for Record (MFR), dated 9 June 2014, shows the IO submitted his findings on 9 June 2014. He stated: a. On 21 December 2013 at 0355, the Veteran was involved in a single vehicle accident on Springwater Road, Estacada, OR. He was assigned to Company E, 302nd Brigade Support Battalion, Camp Casey, Korea, and he was on authorized leave at the time. The IO concluded the Veteran’s injury was in the line of duty on 21 December 2013. b. The Veteran was found unconscious around 0330 hours on 21 December 2013, by two individuals who were conducting their paper route and proceeded to call in the crash when they drove upon it. c. On 6 March 2014 at 2030 hours, the IO conducted a telephonic interview with Officer Rin---, the police officer on the scene. Officer Rin--- stated no alcohol was found in the vicinity of the vehicle and there were no other occupants. The Veteran was found in the back portion of the cargo area of the vehicle with his head lodged between the spare tire and back tailgate window. Officer Rin--- stated the Veteran was probably not wearing a seatbelt and this would explain the location in which he was found in the vehicle. d. Officer Rin--- received a phone call at 0502 hours from Dr. Nev-- at Legacy Emanuel Hospital who informed Officer Rin-- the blood test results revealed the Veteran's BAC was 0.17 percent. Officer Rin--- was going to charge the Veteran with driving under the influence (DUI), but chose not to after receiving the Veterans medical prognosis from Dr. Nev--. Officer Rin--- was informed that due to the severity of the Veterans’ injuries and the trauma sustained by the Veteran, there was a very low probability of survival. Officer Rin--- stated he believed alcohol was a factor in the accident, but he could not say for certain that it was the sole cause of the accident. e. The Veteran is currently at the Palo Alto, CA, Department of Veterans Affairs (VA) Hospital. According to his assigned Nurse Case Manager, Mr. Br-- Mi--, the Veteran's prognosis is bleak; he is not expected to make a full recovery. Mr. Mi-- stated the Veteran will require extensive long term residential or inpatient custodial medical care. The IO also asked Mr. Mi-- if he had any information on the whereabouts of the Veteran's spouse and he replied "no," the only contact information that he had was for the Veteran's father. After an extensive effort, the IO was able to obtain the Veteran's medical records from Legacy Emanuel Hospital, Portland, OR, on 11 April 2014, at 1030 hours. The medical records confirmed the Veteran had a BAC of 0.17. f. AR 600-8-4, paragraph 4-10(b), 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 the impairment was a proximate cause of the injury. Although the Veteran had a BAC of 0.17 percent two hours after the accident, his level of alcohol intoxication was one of the factors contributing to his injury. The IO found based on all of the evidence collected, there was not a clear showing the Veteran’s level of intoxication was the proximate cause of his injury. During the course of his investigation, the IO was able to identify other factors that may have caused this accident. g. His initial recommendation was to find "not in the line of duty," but there were several factors which were not fully considered or taken into account at the time. The Veteran's father (Mr. Gr-- A---) submitted an appeal letter on the Veteran’s behalf and it provided the IO with additional information which identified several factors that may have contributed to the accident. There was an accident on 31 October 2013 on that exact location at the curvature on the road which is an indication that mitigating actions need to be emplaced there. The Veteran's father also annotated in his appeal letter the lack of illumination, the wet road surface, and the Veteran's unfamiliarity with the vehicle, all valid points when determining the probability of an accident occurring. The Veteran was being treated for severe behavioral health issues and PTSD due to his deployment to Iraq in 2010 and marital issues while in Korea. This was corroborated by his battalion physician assistant (PA) who informed the IO the Veteran was in fact being evaluated for PTSD. The Veteran had completed 3 of the 8 counseling sessions which are a part of the treatment. He was probably not mentally fit at the time of the accident. h. There were several factors which had a significant role and ultimately led to the motor vehicle accident. According to the police report and Mr. Ko--, who was the first witness on the scene, at the time of the accident it was raining, the road surface conditions were wet, there was very little illumination, and visibility was poor. The location where the Veteran lost control of the vehicle is on a curve with a grade. Also in his appeal letter, the Veteran's father indicated the Veteran was unfamiliar with the vehicle and its operational conditions. The IO found that poor road conditions, unfamiliarity with the vehicle, and the curvature and grade of the road created dangerous driving conditions which contributed to the accident. i. In accordance with AR 600-8-4, paragraph 4-14, all these factors have to be taken into account when determining the proximate cause of the injury. The Veteran's decision to drink and drive that night endangered not only his own personal welfare, but also the welfare of others. But he (the IO) could not conclude that it was the proximate cause of his injury. While the Veteran placed himself at tremendous risk by drinking and driving, the road surface conditions, low visibility due to a lack of illumination, and the curve with grade all had a role in the accident and it could have occurred absent intoxication. When combined with all the previously stated factors, alcohol might have augmented his probability of being involved in the accident that occurred on 21 December 2013, but he (the IO) did not find there was a clear showing that his intoxication was the proximate cause of his injury. j. According to the Veteran's assigned nurse case manager at the Warrior Transition Battalion, Mr. Mi--, the Veteran was receiving treatment for behavioral health issues at Camp Casey, Korea, from September to October 2013. The IO inquired about this with his company commander, Captain Da--, and the Battalion PA, First Lieutenant (1LT) Si--, who both confirmed the Veteran was being evaluated for PTSD. The Battalion PA stated the Veteran completed 3 of 8 sessions for PTSD and he was prescribed antidepressants and sleep medication. His platoon sergeant, Sergeant First Class (SFC) Rod---, stated the Veteran was a top performer and was number two out of six NCO's in the platoon. SFC Rod-- also stated the Veteran was dealing with some behavioral health challenges that stemmed from a potential divorce, deployment to Iraq, and something else that he refused to talk about. k. AR 600-8-4, paragraph 4-11, states a Soldier may not be held responsible for his or her acts and their foreseeable consequences if, as a 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. The Veteran was dealing with some behavioral health challenges that impacted his mental fitness at the time of the accident. For this reason along with the previously mentioned factors, the IO determined the Veteran was "in the line of duty." 8. On 3 June 2014, the IO determined the Veteran's injury was "in line of duty," and forwarded the findings to the appointing authority. 9. An MFR, dated 14 July 2014, from the Office of The Staff Judge Advocate shows a legal review of the line of duty investigation determined: a. The line of duty investigation was legally sufficient and complies in substantive part with AR 600-8-4, dated 4 September 2008. There were no errors that would have an adverse effect on the substantive or procedural rights of individuals concerned. The IO correctly applied AR 600-8-4 to determine the Veteran's injury was in the line of duty and there were no potential claims against third parties readily apparent from the evidence gathered by the IO. b. The Veteran was injured in a single vehicle automobile accident while on leave from Korea. His vehicle was discovered several hours after the accident. At the time he was discovered, the Veteran had a BAC level of 0.17. However, it was unclear what his BAC level was at the time of the accident. Therefore, the IO was not able to establish whether the Veteran was impaired at the time of the accident; furthermore, he was not able to establish the extent of the Veteran's impairment (if he was in fact impaired at the time of the accident). The IO interviewed Officer Rin---, a first responder, and one of the witnesses on the scene who both indicated the road conditions at the scene of the accident were poor; the road was wet, curved, on a grade, and was visibility limited. Furthermore, Officer Rin--- stated although he believes alcohol was a factor in the accident, because of the poor road conditions, he could not say that it was the sole cause. (1) AR 600-8-4, paragraph 4-10 (b) (Intoxication and Drug Abuse), 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 the impairment was a proximate cause of the injury. (2) AR 600-8-4, paragraph 4-14 (Vehicle Accidents), states several factors that should be considered for line of duty investigations involving vehicle accidents. Specifically, the IO should consider the road conditions and the physical condition of the driver. c. The IO correctly applied the facts gathered in this investigation to the regulatory standard established in AR 600-8-4 and found the Veteran in the line of duty. Based on the IO's inability to make 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 the impairment was a proximate cause of the injury" the IO correctly found the Veteran was in line of duty. d. The recommendation was the investigation be forwarded to the General Court Martial Convening Authority in accordance with AR 600-8-4, paragraph 1-10. Upon final approval, the investigation was to be submitted through the appropriate channels to Headquarters, Department of the Army. 10. On 24 July 2014, the appointing authority, a medical officer at the Warrior Transition Battalion, approved the IO's findings and forwarded the findings to the reviewing authority. 11. On 24 July 2014, the reviewing/approving authority, a general officer, disapproved the findings. The approving authority stated "I disagree with the findings of the investigating officer. I find the [Veteran] was impaired from intoxication before the accident occurred and his voluntary intoxication is proximate cause of the accident. I find [Veteran's] injury to be not in line of duty." 12. An MFR, dated 22 October 2014, shows the IO submitted a Line of Duty Final Findings and Recommendations Addendum. He stated: a. On 6 October 2014, his legal advisor at the office of Administrative Law, I Corp, informed him that Lieutenant General (LTG) St-- La--, the Line of Duty Approving Authority and I Corps Commander, had directed him to further investigate the Veteran's line of duty investigation. The focus of the continued investigation was to ascertain and accurately address any potential mental health problems or issues of a behavioral health nature that the Veteran may have been suffering from at the time of the accident. As part of the investigation, he was instructed to obtain the Veteran's behavioral health records, list of medications, and sworn statements from behavioral health providers who treated the Veteran. Once the documents were gathered, he (the IO) requested a mental health assessment from Dr. D. Re--, the licensed psychologist at the Department of Behavioral Health, Madigan Army Medical Center, GA. b. Dr. Re-- completed the mental health assessment on 21 October 2014. After reviewing the evidence collected and analyzing the biopsychosocial, psychological, and social factors, CPT Ti-- Br-- and Dr. Re-- determined the probable cause of the Veteran's self-destructive behavior was acute alcohol intoxication. The psychological factors identified during the mental health assessment were a history of episodic alcohol abuse to include incidents of underage drinking and treatment at the Army Substance Abuse Program (ASAP) in or around 2006 after receiving a DUI. The Veteran was also dealing with recent anxiety and depressive symptoms and sleep problems related to adjustment issues for which he was receiving behavioral health treatment. The social factors identified were a history of being involved in a motor vehicle accident in or around 2005 that resulted in the Veteran sustaining multiple injuries. Marital problems began prior to his reassignment to Korea. Financial issues were related to the Veteran owing money for coursework and disappointment related to not attending recruiting school. The mental health assessment determined there was no evidence from the data reviewed in this case to suggest the Veteran was unable to comprehend the nature of his act or to control his actions as a result of mental defect, disease, or derangement at the time of the incident. During his behavioral health treatment, the Veteran denied experiencing psychotic symptoms such as hallucinations or delusional beliefs. c. There were several facts pertaining to the Veteran’s alcohol abuse issues that were identified during the continued investigation. On 25 September 2014, Dr. Sim--- annotated the Veteran's health record to show he had one Article 15 in 2007 for underage drinking and that he reported he started drinking after high school almost every night. Dr. Sim--- documented the Veteran was abusing alcohol during that time and he got a DUI in 2006. The Veteran was enrolled in and attended ASAP in 2006. CPT Br-- and Dr. Re--'s mental assessment identified the Veteran's alcohol abuse problems as well. d. In light of all the evidence gathered upon further investigation, the evidence supports the strong possibility that the Veteran was dealing with alcohol dependency issues. He had a history of alcohol abuse and he attended ASAP in 2006. The toxicology report did not discover or identify any substances in his system during the time of the accident but alcohol. The governing regulation, AR 600-8-4, paragraph 4-10(b), states an injury incurred as the "proximate result" of prior and specific voluntary intoxication is incurred as the result of misconduct. The Veteran’s impairment and intoxication during the morning of 21 December 2013 were caused by voluntary intoxication in accordance with the definition of proximate cause outline in AR 600-8-4. His BAC was registered at 0.17 percent by Legacy Emanuel Hospital two hours after the accident was called in to the police by Mr. Ko--, who was the first witness on the scene. AR 600-8-4, appendix B-4, states that an injury, disease, or death that results in incapacitation because of the abuse of intoxicating liquor is not in line of duty. It is due to misconduct. The principles in Rule 3 apply here. While merely drinking alcoholic beverages is not misconduct, one who voluntarily becomes intoxicated is held to the same standards of conduct as one who is sober. Intoxication does not excuse misconduct. e. AR 600-8-4, paragraph 4-11(a), states 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. The mental health assessment determined there was no evidence on the Veteran's behavioral health records that showed he was unable to comprehend the nature of his acts or to control his actions as a result of mental defect, disease, or derangement at the time of the incident. f. AR 600-8-4, appendix B-10 states that a wound or other injury self-inflicted by a Soldier who is mentally sound is not in line of duty. It is due to misconduct. The Veteran's actions on the morning of 21 December 2013 were reckless and irresponsible but he (the IO) didn't find any evidence indicating the events that transpired that morning were a suicide attempt. The Veteran's behavioral health records did not show any patterns or history of suicidal ideations or attempts. On 10 September 2013, the Veteran stated to CPT N. Mc----, the social worker at Camp Casey, Korea, that he made a comment to his mom "about wanting to die this weekend." CPT Mc-- then annotates the Veteran clarified that he had no plan or intent to commit suicide, but stated “I am exhausted by what this anxiety is doing to me.” It was after this counseling session that CPT Mc-- informed CPT Ch-- and his recruiting packet was withdrawn. This was the only suicidal ideation on the Veteran's behavioral health record. The Veteran was categorized as low suicide risk by Dr. Sim-- on 25 September, 7 October, and 23 October 2013. 13. An MFR, dated 17 November 2014, shows a supplemental legal review of the line of duty investigation involving the Veteran's injury was conducted by a military attorney who stated: a. He conducted an additional legal review of the continued line of duty investigation of the Veteran. The additional portion of the investigation is legally sufficient and complies with AR 600-8-4. b. There are no errors that would have an adverse effect on the substantive or procedural rights of the individual concerned. The IO correctly applied AR 600-8-4 and the continued investigation met with the requirements of the approving authority. c. There are no potential claims against third parties readily apparent from the additional evidence gathered by the IO. d. The mental soundness review that resulted from the continued investigation supports the approving authority's determination that the Veteran's injuries were “not in the line of duty.” e. Pertinent facts and circumstances of the continued investigation: (1) The Veteran was injured in a single vehicle automobile accident while on leave from Korea. He was discovered unconscious in his vehicle several hours after the accident. At the time he was discovered, the Veteran had a BAC level of 0.17. His exact level of intoxication at the time of the accident is unknown. (2) At the close of the original line of duty investigation, the IO decided he did not have enough facts to establish the Veteran's injuries were the proximate result of specific and voluntary intoxication based on other potential causes of the accident. The approving authority disagreed and disapproved the results of the line of duty and found the Veteran's injuries were not in the line of duty. The approving authority's decision was forwarded to the Soldier's father, who hired a civilian attorney and submitted a rebuttal on behalf of his son. f. The rebuttal, in part, argued the line of duty investigation failed to adequately investigate the Veteran's mental health at the time of the accident. The approving authority ordered further investigation into the Veteran's mental health at the time of the accident and directed the IO to obtain a mental soundness review from a behavioral health specialist. g. The IO obtained copies of all mental health records and requested a mental soundness review from the Department of Behavioral Health at Madigan Army Medical Center. As part of a mental soundness review, the behavioral health provider made a finding that the proximate cause of the Veteran's behavior, in this case, caused the injuries. The behavioral health provider determined the behavior that caused the injuries was a result of "acute alcohol intoxication." Additionally, the mental soundness review states the Veteran was able to "comprehend the nature of his acts [and] to control his actions." h. The IO correctly completed the continued investigation and all supporting documentation was included in the investigation packet. 14. A letter, dated 20 November 2014, shows the Commanding General (CG), Headquarters, I Corps, Joint base Lewis-McChord, WA, wrote the Veteran's father stating: a. He received the rebuttal, dated 2 October 2014, regarding the determination that his son's injuries were "not in the line of duty." After carefully reviewing the rebuttal, he determined only one issue raised in the rebuttal required additional consideration. The IO was directed to conduct further investigation into the mental health of the Veteran at the time of the accident. The IO gathered the Veteran's mental health treatment records and had the Department of Behavioral Health at Madigan Army Medical Center conduct a mental soundness review of the Veteran. The mental soundness review determined the Veteran was not suffering from any mental disease or defect at the time of the accident and he denied having suicidal ideations with his providers. Based on the additional evidence and results of the mental soundness review, he was maintaining his characterization of the Veteran's injuries. The Veteran's injuries were not in the line of duty, because his injuries were the result of his "prior and specific voluntary" intoxication. b. He enclosed a copy of the additional evidence obtained as a result of the continued investigation and a copy of the mental soundness review. The complete line of duty investigation and his final determination would be forwarded to the Commander, HRC. As his son's legal guardian, he had the right to appeal this determination on the Veteran’s behalf in accordance with AR 600-8-4, paragraph 4-17. 15. An MFR, dated 5 February 2015, shows LTG SRL, the I Corps CG, stated: a. He received and reviewed the appeal of the Veteran's line of duty determination. He was maintaining the original determination that the Veteran's injuries were caused by the Veteran’s intentional misconduct or willful negligence and were received "not in the line of duty." b. AR 600-8-4, paragraph 4-17, allows a Soldier found "not in the line of duty" to appeal the determination. Paragraph 4-17(a)(1) states "the appeal will be sent through channels to the final approving authority, and if the final approving authority determines there is no basis for a change in the determination, it will be so stated by endorsement. As the final approving authority, he reviewed the appeal on behalf of the Veteran and maintained the Veteran's injuries were received "not in the line of duty." This memorandum serves as his endorsement in accordance with paragraph 4-17. 16. A memorandum, dated 24 March 2015, from the Director, CMAOC, HRC, notified the Veteran the Army's CMAOC had completed the review of his line of duty investigation in which he suffered numerous serious injuries as a result of a single-motor vehicle accident on 21 December 2013. This office regretted to inform him they supported the “original finding of not in line of duty, due to own misconduct,” made by the final approval authority. This action will be made final and will be made a permanent part of his official record unless he submitted an appeal in writing within 30 days of receiving this letter. 17. On 17 August 2015, in response to an appeal submitted by the Veteran's father on 18 May 2015, the Director, CMAOC, HRC, stated: a. The Army's CMAOC Plans, Programs, and Training Branch received the request for a line of duty determination appeal on 18 May 2015 regarding his son, the Veteran. b. AR 600-8-4, Appendix B, Rule 8, states an injury or death caused by a Soldier driving a vehicle when in an unfit condition of which the Soldier was or should have been aware, is not in line of duty. It is due to misconduct. His appeal suggests the Army failed the Veteran by allowing him to go on leave and not be properly treated for his behavioral health issues. c. After researching and reviewing the Veteran's medical records, HRC would like to address his concerns. The Veteran’s first behavioral health encounter was in April 2011 where he reported anxiety, stress, and difficulty sleeping. The Veteran was provided information regarding his symptoms and told he may seek help, which he did. In May 2011, he was diagnosed with an adjustment disorder. Medical documentation shows this diagnosis and none of his reported symptoms reached a clinical threshold; they did not impact his social, emotional, or occupational functioning. The Veteran did not follow up after this appointment. The next time the Veteran was seen by behavioral health was on 4 September 2013 in Korea, where he was evaluated for recruiting duty. During this encounter, he reported he did not drink and answered "not at all" for each item that he was asked about PTSD. On the traumatic brain injury (TBI) checklist, he answered "N/A" for each of the four sections. He was cleared for recruiting duty and he was reported to have no clinical diagnosis. d. According to your appeal, on 9 September 2013, the Veteran conversed with his sister and commented about crying for hours to his mother and wanting to kill himself. The next day, 10 September 2013, he had a behavioral health appointment where medical records contradict when his symptoms began. The Veteran also reported the conversation he had with his mom, denying any current suicidal ideation, intent, or plan to harm himself. He also expressed a desire to decline recruiting duty. On 25 September 2013, he stated he drinks two or three beers when he goes out and that his symptoms had worsened since he arrived in Korea. He also reported that he coped better when he was with his wife. The Veteran was seen two additional times in October 2013 where he reported he was no longer experiencing depressive symptoms, but he had been feeling anxious. He also reported to his therapist that he was going home for 30 days in December to relax and hang-out with his family. The Veteran was determined to be low risk for suicide. There was no indication he should be denied leave based on his Behavioral Health symptoms, treatment, or outcomes; in fact, his symptoms appeared, by self-reporting, to have improved. Additionally, he self-reported that he coped better at home when he was around his wife. e. Regarding the events on the evening of 21 December 2013; there is no evidence in the medical records or the line of duty investigation that shows the Veteran was suicidal prior to leaving Korea. The evidence shows on the evening of 21 December 2013, the Veteran had been drinking as evidenced by his BAC of .17. A statement from Officer Rin--- indicated he decided against going to the hospital and citing the Veteran with DUI after the Veteran’s physician informed him of the Veteran’s condition. f. Army officials are sorry they do not have a more favorable answer. The Army remains committed to assist him, in honor of his son's dedicated service to our country. Since he had exhausted all other administrative remedies, he was advised he could appeal to this Board. 18. An undated letter from the Veteran's mother stated: a. She was trying one final attempt to have the Veteran's line of duty determination reversed or determined to be in the line of duty. The Veteran suffered a severe TBI in an automobile accident on the morning of 21 December 2013 while at home on leave. He remains in a minimally conscious state. He is totally dependent, absent the ability to communicate, move, eat, or to care for himself in any way. It is now her job, as his mother and caregiver, for the rest of his life. b. Just prior to taking leave, her son sought help from the Army's Behavior Health Division for treatment of PTSD symptoms, anxiety, stress, and sleep disturbance where he had not slept for days. She believes these symptoms peaked in September/October 2013 as a result of several factors. She knows he had issues when he came home from Iraq in January 2011, and that he had some serious sleep issues while stationed at Fort Lewis. He was diagnosed with an adjustment disorder and she does not believe this was fully addressed. This was the beginning. He wanted to become a recruiter and was told he had to reenlist because that position required him to have at least 2 years left on his contract. He reenlisted and was promptly given orders for Korea for either 2 years with his wife or 1 year without her. His wife refused to go. While he was overseas his wife cleared his bank account, started living with another man, and asked for a divorce, all while he paid her $800 per month. The applicant states she has the messages from his wife asking for a divorce on 16 December 2013, the day before he got home. The Veteran asked his wife to wait until this deployment was over, but she refused. Just before his last enlistment, his father was admitted to the intensive care unit for 4 days. This was hard on the Veteran. c. The CMAOC denial letter referred to AR 600-8-4, Appendix B, Rule 8, which governs line of duty investigations states an injury caused by a Soldier driving a vehicle when in an unfit condition of which the Soldier was or should have been aware, is not in the line of duty, it is due to misconduct. While it does say that, in the very same AR 600-8-4, Chapter 4, Special Considerations and Other Matters Affecting Line of Duty Investigations, 4-11 (Mental responsibility, emotional disorders, suicide, and suicide attempts), it states: (1) The Military Treatment Facility (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 line of duty" unless they existed before entering the Service and were not aggravated by military service. Personality disorders by their nature are considered as conditions that existed prior to service. (2) Line of duty investigations of suicide or attempted suicide must determine whether the Soldier was mentally sound at the time of the incident. The question of sanity can only be resolved by inquiring into and obtaining evidence of the Soldier's social background, actions and moods immediately prior to the suicide or suicide attempt, troubles that might have motivated the incident, and examinations or counseling by specially experienced or trained persons. Personal notes or diaries of a deceased Soldier are valuable evidence. In all cases of suicide or suicide attempts, a mental health officer will review the evidence collected to determine the bio­psychosocial factors that contributed to the Soldier's desire to end his or her life. The mental health officer will render an opinion as to the probable causes of the self-destructive behavior and whether the Soldier was mentally sound at the time of the incident. d. Although her son never spoke of suicide to her and denied it to his therapist, he did speak of it with his wife and sister, both of whom relayed it to her (his mother). She has copies of these messages and texts also. The denial letter also states on 10 September 2013, the Veteran denied any such conversation with his mom, which makes no sense. No one in the Army was aware of these conversations until she made them known well after the accident. How then can he have denied it? As stated in the line of duty denial letter, the Veteran was diagnosed in May 2011 with an adjustment disorder which is defined as stress-related mental illness that can affect your feelings, thoughts, and behavior. Signs and symptoms of an adjustment disorder can include: Anxiety, poor school or work performance, relationship problems, sadness; thoughts of suicide, worry, and trouble sleeping. e. Also AR 600-8-4 Chapter 4 4-14, Vehicle accidents: (1) If the subject matter of the investigation involves a motor vehicle accident, the following facts are important and should be addressed, if applicable: * speed of vehicle involved, as evidenced by testimony of witnesses, skid marks, condition of roads, and the damage to the vehicle (there were no skid marks) * road factors, including all road characteristics, natural obstructions to the driver's vision, and traffic signs (curve at the end of a long, straight decline) * other vehicles, including any part played by them in creating the conditions that resulted in the accident; traffic conditions at the scene of the accident and their effect on the accident (rural highway with no traffic) * traffic laws and regulations in force pertinent to the accident, including speed limits and required safety devices (the direction he was traveling had no curve caution sign, there is a curve caution coming from the other direction) * light and weather conditions and their effect on driving conditions (it was very dark, cloudy, and rainy, so much so that life- flight was grounded) * mechanical condition of the vehicles involved (it was a used jeep purchased the day before) * the physical condition of the driver or drivers, including sobriety, fatigue, and exhaustion, and the effects of their physical condition on the accident (although the Veteran had a BAC; he had been suffering from insomnia, had just come from a 17 hour time difference, and had Army prescribed PTSD/anxiety/insomnia medications) f. The letter from the CMAOC states the Veteran self-reported that he was fine. Of course he did. He wanted to go home. But he was not the doctor. The real doctor obviously thought there were enough issues to prescribe him Zoloft and Prozosin on 22 October 2013. Her question is if her son was fine, with no evidence of PTSD/anxiety/depression, or other mental defect, why was he prescribed two medications to treat a condition the Army denies he had? In the original line of duty, the IO determined her son's injury was "in the line of duty" because of his mental impairment at the time. This was agreed upon and signed by his commanding officer. However, General Da-- decided not to sign the IO’s recommendation. When the decision was appealed it went right back to General Da-- who instructed the IO to "get it right this time." g. In closing, the Veteran was a good and dedicated Soldier. He served more than 8 years, honorably. He was selected NCO of the quarter while at Joint Base Lewis-McChord. He was a top NCO in Korea. He was a good man and deserves more from the Army and his country and as his mother, she deserves better. He deserves to be well cared for and she is asking as his caregiver, for the ability and resources that come through service connection and a line of duty determination. 19. An advisory opinion was received on 23 March 2017 from the Army Review Boards Agency (ARBA) psychiatrist in the processing of this case. The ARBA psychiatrist referenced the Diagnostic and Statistical Manual of Mental Disorders-5th Edition; AR 40-501 (Standards of Medical Fitness), with revisions, dated 4 August 2011; and AR 635-200 (Enlisted Administrative Separations), dated 6 September 2011. a. The Veteran entered active duty on 22 March 2006 in MOS 91B20, Wheeled Vehicle Mechanic. He deployed to Iraq from 21 January 2010 to 12 January 2011. He was also stationed in Korea twice. On 21 December 2013, while at home on leave from Korea, he was in a single car motor vehicle accident which resulted in severe brain damage and quadriplegia. At the time of the accident, his BAC was 0.17. A line of duty investigation was performed and, while the IO and the appointing authority ruled the accident as in line of duty: YES, and indicated that (1) intentional neglect was not the proximate cause of the accident, and (2) the individual [i.e.-Veteran] was not mentally sound, the reviewing authority ruled the accident as in line of duty: NO with alcohol cited as the proximate cause of the accident. b. On 12 February 2016, he was honorably discharged under the provisions of chapter 4, Army Regulation (AR) 635-200 (Active Duty Enlisted Administrative Separations), by reason of completion of required active service. He completed 9 years, 10 months, and 17 days of active service and he had 3 days of lost time. A line of duty determination appeal filed by the Veteran’s parents was denied by Casualty and Mortuary Affairs on 17 August 2015. The Veteran’s parents are now applying to this Board requesting the line of duty determination be reversed contending the Veteran was suffering from mental illness at the time of the accident and the accident was due to a suicide attempt. c. The Agency psychiatrist was asked to review this request. Documentation reviewed includes the Veteran’s mother’s application, the Veteran’s mother’s personal statement, the line of duty investigation packet, copies of text messages between the Veteran and his family, the Armed Forces Health Longitudinal Technology Application (AHLTA), which is the electronic military medical record and the electronic VA medical record. In her personal statement, the Veteran’s mother contends her son’s motor vehicle accident was a suicide attempt based on the fact that he was going through a marital breakup and was depressed and suicidal. She contends the Army did not accurately assess his condition prior to letting him go on leave in December 2013. d. A review of the line of duty investigation packet contains the following: (1) An MFR, subject: [Veteran] Line of Duty Findings, dated 9 June 2014. In this document, the IO concluded the Veteran's accident that occurred on 21 December 2013 was in line of duty: Yes, based on the poor road conditions and his mental health history. (2) A second MFR, Subject: [Veteran] Line of Duty Final Findings and Recommendations Addendum, dated 22 October 2014, shows the IO reports he was instructed by his legal advisor at the request of the Line of Duty Approving Authority and I Corps Commander, LTG SL to obtain a mental health assessment of the Veteran's case. This assessment was conducted by the Psychology Department at Madigan Army Medical Center: * The mental soundness review, dated 21 October 2014, was performed by CPT T. Br--, PhD (Psychology Resident) and supervised and cosigned by Di-- Re--, PsyD, Licensed Psychologist * According to the mental health review referenced above, it was determined the probable cause of the Veteran's self-destructive behavior was alcohol intoxication * According to this review, there was no evidence from the data reviewed to suggest the Veteran was unable to comprehend the nature of his act or control his actions as a result of mental defect, disease or derangement * Specifically, the review stated there was no evidence of psychosis or thought disorder * The reviewing psychologist concluded the Veteran was mentally sound at the time of his accident * Based on this review, the IO concluded the probable cause of the Veteran's self-destructive behavior was acute alcohol intoxication (3) An MFR, subject: [Veteran's] Line of Duty Appeal, dated 22 October 2014, signed by LTG SL states the Veteran's injuries were determined to be caused by his willful neglect or intentional misconduct and were received “not in line of duty.” (4) A letter from the CMAOC, dated 17 August 2015, addresses the Veteran's parents’ appeal of the line of duty: No determination. In this document, the Director of CMAOC, states “Regarding the events on the evening of 21 December 2013: There is no indication in the medical records or line of duty investigation that the Veteran was suicidal prior to leaving Korea.” (5) Also included in the line of duty investigation packet are photographs of the Veteran's motor vehicle accident, letters of rebuttal from his attorney, and medical records from AHLTA and Legacy Emmanuel Medical Center. e. A review of the military medical record indicates the following: (1) The Veteran underwent a Behavioral Health Post Deployment Health Assessment on 27 April 2011. During this assessment, he denied suicidal ideation, thoughts of losing control, depressive symptoms, PTSD symptoms, suicidal ideation or alcohol use. The Veteran indicated he was interested in receiving information/assistance regarding stress, emotional or alcohol concerns. He reported completing the Army Substance Abuse Program (ASAP) in 2006. He currently had issues with insomnia, anxiety attacks, and managing stress. He indicated “Yes” to marital problems but then wrote he had “accidentally indicated marital problem and this was not true.” He denied suicidal ideation, intent or planned. The assessing examiner concluded there was no indication of an Axis I or II diagnosis. (2) On 5 May 2011, the Veteran presented to Behavioral Health with the chief complaint of “Too much stress, not enough time, worn out at night.” He reported getting stressed during driving and standing in formation. He stated he was getting “irritable with the privates in his unit who were different for him.” He reported he noticed a change in his behavior post deployment. He endorsed anhedonia and low self-esteem. He explained that after returning from Korea, he was assigned to the rear detachment and consequently, had received no awards. In 2009, his new platoon sergeant gave him an Article 15 and demoted him to PFC (private first class) for missing two formations. He felt demoralized and degraded because he had not yet regained his rank. He denied insomnia and reported normal appetite and normal concentration. He denied suicidal or homicidal ideation. He denied past suicidal behavior. He denied prior history of suicide attempts. In the Behavioral Health Assessment, it was stated that none of his symptoms were elevated to the level of meeting the clinical threshold. It was felt that his symptoms were not having a significant impact on his ability to function on the job or getting along with others at work. Based on his clinical symptoms, the Veteran was diagnosed with adjustment disorder and referred for Cognitive Behavioral Therapy. A review of the chart indicates the Veteran did not follow through on this recommendation. (3) The Veteran’s next contact with Behavioral Health occurred on 4 September 2013 at the Brian Allgood Army Community Hospital, Yongsan, Korea. The Veteran presented at this time for a Recruiter School Mental Status Evaluation. During this visit, he denied having had a previous psychological/ psychiatry evaluation or hospitalization. He denied legal or financial problems. He endorsed no items in the section entitled “Current Stressors/Symptoms.” He indicated receiving a DUI in 2006 followed by a self-referral to ASAP. Under the statement “Describe your drinking habits” he wrote “Don’t Drink.” Part of this evaluation contained the PTSD Military Checklist (PCL-M). The checklist instructed the person taking the screen to put an “X” in the box which indicates how much the person has been bothered by that problem in the last month. The Veteran answered “Not at All” to all 17 items listed. He also answered N/A to all four sections of the TBI screen. During the interview part of the evaluation, the Veteran denied auditory or visual hallucinations and suicidal or homicidal ideation. His mental status examination was within normal limits. He was assessed as having no psychiatric diagnosis and was cleared for recruiter duty. (4) Six days later, on 10 September 2013, the Veteran presented as a walk-in to Behavioral Health with the chief complaint of anxiety. He also reported symptoms of impaired concentration, loss of interest in activities, depressed and anxious mood. During the interview, he was tearful. He denied suicidal or homicidal ideation, intent or plan. He reported to the examiner that he had been having disturbing recollections of a rocket attack on his Forward Operating Base (FOB) during his deployment to Iraq in 2010-2011. He stated these symptoms had a delayed onset in that they only started bothering him in June 2013 after he had been awakened by the sound of training artillery fire near his home in the vicinity of Fort Lewis, WA. Along with these intrusive recollections, the Veteran also reported increased anxiety with panic attacks occurring 3-4 times a day, depression, impaired sleep and loss of appetite. He stated the precipitant for his current walk in visit was the fact that “I was scared by a comment I made to my mom about wanting to die this weekend.” He denied having a plan or intent to commit suicide during this assessment but commented “I am exhausted by what this anxiety is doing to me.” He denied current alcohol or drug use. He reported a desire to return home to live with his wife in the United States. He reported he received strong support from his “battle buddies” in his unit. During this interview, he stated he did not think he could do recruiting duty given his current state and asked that his DA 3822 clearing him for recruiting duty be withdrawn. On a Mental Status Examination, the Veteran was observed to be tearful, anxious and depressed. His judgment and impulse control were felt to be intact. A Safety Assessment concluded that his risk of suicide was low. He was diagnosed with adjustment disorder with anxiety and depressed mood. He was scheduled for an intake with psychology on 25 September 2013. (a) The Veteran was prescribed Sertraline 25mg each morning, Prazosin 1mg at bedtime, and Zolpidem 5mg at bedtime on this date by T. Hu-- MD. (b) There is no documentation in AHLTA regarding these prescriptions other than the medical orders. (c) There are no intake appointments or follow up appointments for psychiatric medication management documented in AHLTA. (5) On 25 September 2013, the Veteran was seen by psychology for an intake examination. During this visit, he reported experiencing anxiety, panic attacks, depression and inability to sleep. He reported that these symptoms began upon return from deployment in 2011, but he had become worse since his move to Korea. He felt he coped with his symptoms better in the United States with the help of his wife. He reported he had some suicidal ideation earlier in the month that improved after he spoke with his mother. He reported that being away from his wife had caused him to feel depressed. (a) He denied any history of abuse or neglect as a child but did report a history of ADHD (attention deficit hyperactivity disorder) which was treated with stimulant medication from 7th through 12th grades. (b) He reported he had a history of abusing alcohol while in high school in that he drank almost every night. He attended ASAP in 2006 after receiving a DUI when he was visiting at home. He stated that he now drinks 2-3 beers when he goes out. He denies any history of drug abuse. He reported he smoked 1-1.5 packs cigarettes a day and chewed about ¼ can of chew per day. (c) A mental status examination shows he was cooperative with normal speech and memory. He described his mood as “I feel anxious, nervous, and tired.” He denied psychotic symptoms. He denied current suicidal or homicidal ideation, means, intent or plan. He reported averaging 2 hours of sleep a night with problems falling and staying asleep. He reported he was taking Ambien currently. (d) He was diagnosed with adjustment disorder with mixed emotional features and was scheduled to continue seeing the psychologist for 8 sessions of individual psychotherapy. (6) On 7 Oct 2013, the Veteran met with psychology for his first session of psychotherapy. During this visit, he reported persistent insomnia and stated he had not been sleeping due to fact he had run out of Ambien. He planned on picking up a refill of his Ambien the next day. He reported that his anxiety had not changed. He reported his depressive symptoms had lessened. He stated he had been busy at work and this kept him from “catastrophizing.” He denied suicidal or homicidal ideation and expressed an interest in going to recruiter school after leaving Korea. (7) The electronic medical record indicates he was seen next by psychology on 23 October 2013. During this session, the Veteran reported he would be going home for 30 days of leave in December 2013 “to relax and hang out with family." He stated he had been feeling anxious. He was upset about not getting into recruiter school and reported he was going to be assigned to Fort Campbell instead. He also indicated there was some “tension” in his relationship with his wife. On a mental status examination, he continued to report problems falling asleep and staying asleep. He reported averaging about 2 hours of sleep a night. His diagnosis remained adjustment disorder with mixed emotional features. Based on a safety assessment, he was felt to be at low risk for suicide. The plan was for him to return to behavioral health for continuing individual psychotherapy. (However, no follow up appointment is documented in AHLTA). (8) The next medical note in AHLTA is dated 3 January 2014. This note indicates the Veteran had been in a serious single car motor vehicle accident on 21 December 2013 during which his vehicle hit multiple trees, shearing off the top of the car. The Veteran incurred multiple serious injuries to include bilateral femur fractures, extensive base of skull fractures, incomplete bilateral zygomatic arch (i.e.-facial) fractures, brain hemorrhage, and pneumoencephalus (air in the brain). The note documented the Veteran was presently married and separated from his wife who refused to make any medical decisions for the Veteran. (9) A subsequent follow up note, dated 9 January 2014, documented the Veteran remained in a coma. A note dated 6 October 2015 indicated the Veteran remained in a chronic semi-comatose state. It also noted the line of duty appeal had been denied. (10) A review of the VA electronic medical record indicates the Veteran has been diagnosed with diffuse brain trauma and quadraplegia. The Veteran remains in a minimally conscious state. e. The mental soundness review and line of duty appeal denial notwithstanding, the advisory official feels, after reviewing this case, there were significant psychiatric factors involved in this Veteran's motor vehicle accident. (1) The medical documentation indicates the Veteran was suffering from symptoms of PTSD related to his combat deployment to Iraq. He reported the onset of extreme anxiety and panic symptoms while stationed at Fort Lewis in June 2013 upon being awakened by training artillery fire. A text sent from the Veteran to his wife, dated 9 September 2013, states “…Before I was home on leave. I heard 'gun shots' in my sleep. I woke up and told everyone to stay put. I grabbed my gun and cleared the house and down the apartment road. I had a panic attack…” (a) Post-traumatic symptoms identified in his medical records include insomnia, anger, increased irritability, being “sensitive to hearing gunfire,” and diminished interest in activities. The Veteran clearly states in his 5 May 2011 behavioral health appointment that these symptoms began after he returned from Iraq. (b) A text message between the Veteran and his sister dated 9 September 2013 indicates he continued to have mental health issues related to his combat trauma: ”…I’m having very big mental health issues from my deployment. I cried for hours to her [i.e., his mother] wanting to kill myself…” (c) The Veteran falls one category short of meeting the DSM V criteria for PTSD: He meets criterion A (exposure to actual or threatened death-in his case, combat), criterion B (presence of intrusive symptoms-“hearing gunshots in my sleep”), criterion D (negative alteration in cognitions and mood associated with the traumatic event-manifested by persistent, negative emotional state and decreased interest as per Veteran’s report), criterion E (marked alteration in arousal and reactivity associated with the traumatic event-manifested by persistent, severe insomnia and increased irritability). (d) The medical record does not document symptoms meeting criterion C – persistent avoidance of stimuli associated with the traumatic event. (e) Based on DSM V, the Veteran meets criteria for Unspecified Trauma and Stressor Related Disorder. (2) The medical documentation also indicates the Veteran met DSM V criteria for major depressive disorder with anxious distress. According to the DSM V, 5 or more of the following symptoms have to be present during the same 2 week period and at least one of them has to be depressed mood or loss of interest or pleasure: (1) depressed mood most of the day, (2) markedly diminished interest or pleasure in all or almost all activities, (3) significant weight loss when not dieting or decrease or increase in appetite, (4) insomnia or hypersomnia nearly every day, (5) psychomotor retardation or agitation, (6), fatigue or loss of energy, (7) feelings of worthlessness or excessive or inappropriate guilt, (8) diminished ability to concentrate or indecisiveness, (9) recurrent thoughts of death, recurrent suicidal ideation without a specific plan, or a suicide attempt or a specific plan for committing suicide. (3) A review of the behavioral health notes from 10 and 25 September 2013 indicate the Veteran met the following criteria for major depressive disorder: #1-depressed mood every day, #2-loss of interest in activities, #3-decreased appetite, #4-persistent, severe insomnia, #8-impaired concentration, and #9-recurrent thoughts of death and suicide. Regarding criterion #9, medical documentation from 10 September 2013 states the Veteran reported he had made a comment over the weekend that he wanted to die. While he denied suicidal ideation in his 25 September 2013 Behavioral Health visit, a text from his estranged wife, dated 10 October 2013, indicates that his suicidal ideation still persisted: “[Veteran] is threatening to strangle himself and he’s drunk…” (4) The medical record documents the Veteran suffered from persistent, severe anxiety and panic attacks along with his depressive symptoms. (5) A review of the medical record indicates the Veteran was prescribed medication for both PTSD and depression while in the military. On 10 September 2013, he was prescribed Sertraline (an antidepressant used to treat depression and PTSD), Prazosin (a medication used to treat PTSD associated sleep issues), and Zolpidem (a medication used to treat insomnia). There is no documentation of a psychiatric management intake note or medication management follow up note. (6) Psychosocial factors also contributed to the Veteran’s depressed mental state. A text conversation between the Veteran and his wife, dated 16 December 2013, indicates his marriage was ending in divorce; Veteran – “It only takes 30 days to get a non-contested divorce in Oregon so whenever I get a place we can file…” The Veteran’s wife responds: “…Being married still is already causing problems in my life….” A medical progress note, dated 9 January 2014, documents the Veteran’s uncle died in December 2013 as well. f. The Veteran's accident was determined to be line of duty: No, based on the fact his blood alcohol level was 0.17 at the time of the motor vehicle accident. The reviewing authority, MG Da--, states “I disagree with the findings of the IO. I find the [Veteran] was impaired from intoxication before the accident occurred and his voluntary intoxication is the proximate cause of the accident. I find [Veteran's] injury to be not in the line of duty.” (MG Da--’s finding was upheld in the subsequent Line of Duty Appeal.) (1) The reviewing authority’s assessment that the Veteran was intoxicated at the time of the accident is correct. However, his conclusion that “voluntary intoxication is the proximate cause of the accident” is not accurate. (2) Based on the advisory official's review of the medical record, the Veteran suffered from two psychiatric conditions at the time of his motor vehicle accident: Unspecified trauma and stressor related disorder and major depressive disorder with anxious distress. (a) The presence of these psychiatric diagnoses at the time of the motor vehicle accident indicates the Veteran was not mentally sound at the time of the accident; and (b) The use of alcohol prior to the accident was most likely not due to misconduct. Individuals with trauma and anxiety disorders often self-medicate their symptoms with alcohol. g. Finally, given the Veteran's psychiatric diagnoses, the available medical and text message documentation and the stressors in his life (impending divorce, separation from family, not being accepted into recruiting school, the death of his uncle), The presence it is the Agency Psychiatrist’s medical opinion that the Veteran's motor vehicle accident was more likely than not a suicide attempt on part of the Veteran due to both a combat-related trauma disorder (unspecified trauma and stressor related disorder) and an anxious depressive disorder (major depressive disorder with anxious distress) that more than likely rendered the Veteran unable to control his actions or comprehend the foreseeable consequences of his actions leading to his severe brain trauma by suicide attempt via a motor vehicle accident. 19. The applicant was provided a copy of this advisory opinion. She responded via email on 26 March 2017 by stating she and her spouse agree with the Advisory Opinion that was presented and are glad someone could see what the actual mental status was of their son prior to the accident. She knows he did not express his true feelings when he went before behavior health as he was both embarrassed and concerned about his continuing career in the Army. REFERENCES: 1. AR 15-185 (ABCMR) states ABCMR members will review all applications that are properly before them to determine the existence of an error or injustice. The ABCMR will decide cases on the evidence of record. It is not an investigative body. The ABCMR may, in its discretion, hold a hearing. Applicants do not have a right to a hearing before the ABCMR. The Director or the ABCMR may grant a formal hearing whenever justice requires. 2. AR 600-8-4, prescribes policies, procedures, and mandated tasks governing line of duty determinations of Soldiers who die or sustain certain injuries, diseases, or illnesses. a. Paragraph 4–11 (Mental responsibility, emotional disorders, suicide, and suicide attempts), 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 LD" unless they existed before entering the Service and were not aggravated by military service. Personality disorders by their nature are considered as existed prior to service. Line of duty investigations of suicide or attempted suicide must determine whether the soldier was mentally sound at the time of the incident. The question of sanity can only be resolved by inquiring into and obtaining evidence of the soldier’s social background, actions and moods immediately prior to the suicide or suicide attempt, troubles that might have motivated the incident, and examinations or counseling by specially experienced or trained persons. Personal notes or diaries of a deceased Soldier are valuable evidence. In all cases of suicide or suicide attempts, a mental health officer will review the evidence collected to determine the bio-psychosocial factors that contributed to the Soldier’s desire to end his or her life. The mental health officer will render an opinion as to the probable causes of the self-destructive behavior and whether the soldier was mentally sound at the time of the incident. If the Soldier is found mentally unsound, the mental health officer should determine whether the Soldier’s mental condition existed prior to service and was aggravated by service or was due to the Soldier’s own misconduct. Those conditions occurring during the first six months of active duty may be considered as existed prior to service, depending on history. 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. b. Appendix B provides for Rules Governing Line of Duty and Misconduct Determinations. 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 in this Appendix. Rule 8, Injury or death caused by a Soldier driving a vehicle when in an unfit condition of which the Soldier was, or should have been aware, is not in line of duty. It is due to misconduct. A Soldier involved in an automobile accident caused by falling asleep while driving is not guilty of willful negligence solely because of falling asleep. The test is whether a reasonable person, under the same circumstances, would have undertaken the trip without expecting to fall asleep while driving. Unfitness to drive may have been caused by voluntary intoxication or use of drugs. DISCUSSION: 1. By regulation, an applicant is not entitled to a hearing before the ABCMR. Hearings may be authorized by a panel of the ABCMR or by the Director of the ABCMR. In this case, the evidence of record and independent evidence provided by the applicant is sufficient to render a fair and equitable decision at this time. 2. On 17 December 2013, the Veteran departed his Korea-based unit on mid-tour leave. On 21 December 2013, he was involved in a motor vehicle accident in Colton, OR. He was operating a jeep that left the highway and rolled over a few times until it came to rest upside down wedged between two trees at the bottom of a gully. He was airlifted and admitted to a hospital. His body was analyzed for alcohol which was at .17 percent BAC. Clearly, he was under the influence of alcohol. 3. An IO conducted an investigation and initially concluded that based on the facts of the accident, the Veteran's exact level of intoxication at the time of the accident was unknown. At the close of the original line of duty, the IO determined that he did not have enough facts to establish the Veteran's injury was the proximate result of specific and voluntary intoxication based on other potential causes of the accident. The approving authority disagreed and disapproved the results of the line of duty and found the Veteran's injuries to be not in the line of duty. The approving authority's decision was forwarded to the Soldier's father, who hired a civilian attorney and submitted a rebuttal on behalf of his son. 4. The father's rebuttal argued the line of duty investigation did not adequately investigate the Veteran's mental health at the time of the accident. As a result, the approving authority ordered further investigation into the Veteran's mental health at the time of the accident and directed the IO to obtain a mental soundness review from a behavioral health specialist. 5. At that point, the IO obtained copies of all mental health records and requested a mental soundness review from the Department of Behavioral Health at Madigan Army Medical Center. As part of a mental soundness review, the behavioral health provider makes a finding of the proximate cause of the behavior that, in this case, caused the Soldier's injuries. The behavioral health provider determined the behavior that caused the injuries was a result of "acute alcohol intoxication." Additionally, the mental soundness review states the Veteran was able to "comprehend the nature of his acts and to control his actions." 6. Line of duty determinations protect the interests of both the individual concerned and the U.S. Government where service is interrupted by injury, disease, or death. The decision of whether to find a particular injury or illness in line of duty or not in line of duty is a judgment call made by the commander closest to the action and having approval authority. When the CG disapproved the IO's findings, he did so because the mental health issues had not been addressed by the IO. 7. Dr. Re-- had completed the mental health assessment on 21 October 2014. After reviewing the evidence collected and analyzing the biopsychosocial, psychological, and social factors, Dr. Re-- determined the probable cause of the Veteran's self-destructive behavior was acute alcohol intoxication. The psychological factors identified during the mental health assessment were a history of episodic alcohol abuse to include incidents of underage drinking and treatment at ASAP in or around 2006 after receiving a DUI. * the Veteran was also dealing with recent anxiety and depressive symptoms and sleep problems related to adjustment issues for which he was receiving behavioral health treatment * the social factors identified were history of being involved in a motor vehicle accident in or around 2005 that resulted in the Veteran sustaining multiple injuries * marital problems began prior to his assignment to Korea * financial issues related to the Veteran owing money for coursework and disappointment related to not attending recruiting school * the mental health assessment determined there was no evidence from the data reviewed in this case to suggest the Veteran was unable to comprehend the nature of his act or to control his actions as a result of mental defect, disease, or derangement at the time of the incident * during his behavioral health treatment, the Veteran denied experiencing psychotic symptoms such as hallucinations or delusional beliefs 8. The advising psychiatrist in this case opined that the conclusion that “voluntary intoxication is the proximate cause of the accident” is not accurate. The advising psychiatrist noted the Veteran's unspecified trauma and stressor related disorder and major depressive disorder with anxious distress. The advising psychiatrist opined that the presence of these psychiatric diagnoses at the time of the motor vehicle accident indicates the Veteran was not mentally sound at the time of the accident, and the use of alcohol prior to the accident was most likely not due to misconduct. Individuals with trauma and anxiety disorders often self-medicate their symptoms with alcohol. The advising psychiatrist further opined that the Veteran's motor vehicle accident was more likely than not a suicide attempt on part of the Veteran due to both a combat related trauma disorder (unspecified trauma and stressor related disorder) and an anxious depressive disorder (major depressive disorder with anxious distress). 9. The Veteran chose to operate a vehicle while under the influence of alcohol, the Veteran had a history of alcohol abuse and had attended ASAP in 2006, and it appears the Veteran was dealing with alcohol dependency issues. The behavioral health provider made a finding of the proximate cause of the behavior that, in this case, caused the Veteran's injuries. The behavioral health provider determined the behavior that caused the injuries was a result of "acute alcohol intoxication" and the mental soundness review states the Veteran was able to "comprehend the nature of his acts and to control his actions." By regulation, an injury incurred as the "proximate result" of prior and specific voluntary intoxication is incurred as the result of misconduct. The Veteran's impairment and intoxication during the accident on 21 December 2013 was caused by voluntary intoxication in accordance with the definition of proximate cause outlined in AR 600-8-4. 10. An injury, disease, or death that results in incapacitation because of the use of alcohol or other intoxicating substances is not in line of duty. It is due to misconduct. 11. The applicant requested, in the alternative, correction of the Veteran’s records to show his injury was service-connected. This term is used by the VA and defines disability types in the VA system. Service connected means the Veteran is disabled due to an injury or illness that was incurred in or aggravated by military service. Non-service connected means the Veteran is disabled due to injury or illness not related to military service. This term is not used by the Army and determination of VA service-connection is not within the purview of this Board. //NOTHING FOLLOWS// ABCMR Record of Proceedings AR20150000953 Enclosure 1 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS ABCMR Record of Proceedings (cont) AR20150017777 7 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 1 ABCMR Record of Proceedings (cont) AR20150017777 19 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 2