IN THE CASE OF: BOARD DATE: 3 May 2016 DOCKET NUMBER: AR20140021050 BOARD VOTE: _________ _______ ________ GRANT FULL RELIEF ________ ________ ________ GRANT PARTIAL RELIEF ________ ________ ________ GRANT FORMAL HEARING ____X____ ___X_____ ___X_____ DENY APPLICATION 2 Enclosures 1. Board Determination/Recommendation 2. Evidence and Consideration IN THE CASE OF BOARD DATE: 3 May 2016 DOCKET NUMBER: 20140021050 BOARD DETERMINATION/RECOMMENDATION: The evidence presented does not demonstrate the existence of a probable error or injustice. Therefore, the Board determined the overall merits of this case are insufficient as a basis for correction of the records of the individual concerned. _____________X____________ CHAIRPERSON I certify that herein is recorded the true and complete record of the proceedings of the Army Board for Correction of Military Records in this case. IN THE CASE OF: BOARD DATE: 3 May 2016 DOCKET NUMBER: AR20140021050 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 of a former service member (FSM), requests correction of her son's line-of-duty (LOD) determination to read "in the LOD." 2. The applicant states: a. The errors made in her son's records include: * a not in the LOD determination for a motorcycle accident that occurred on 17 April 2010 where post-traumatic stress disorder (PTSD) was a major contributing factor * he was denied full compensation in the form of his disability rating for retired pay and benefits for injuries sustained in the accident * he was denied full compensation in the form of traumatic injury protection under the Servicemember's Group Life Insurance for injuries resulting from the accident b. The rating of "not in the LOD" for the motorcycle accident on 17 April 2010 is unjust because her son was suffering from PTSD at the time. He had just returned from a deployment in Iraq the same week. While serving in Iraq, he was exposed to combat conditions that left him with PTSD. c. His military records show proof of his PTSD being combat-related. He received permanent disability retirement for PTSD from the Army. d. When he returned from Iraq he was withdrawn, restless, on edge, and unable to sleep. He was distant, numb, irritable, and angry. In the early hours of 17 April 2010, he was working on his motorcycle and trying to find something to help him calm down. He was trying to avoid the nightmares that sleep brought. It was these factors that led to the accident on 17 April 2010. Therefore, his LOD determination should be reversed to "in the LOD" due to PTSD. e. Since PTSD was a major contributor to the accident, all injuries and related costs should be covered as "in the LOD." In addition, her son should be awarded all compensations currently being denied to him (i.e., 100-percent retired pay, 100-percent payment of Traumatic Servicemember's Group Life Insurance, and full payment of his medical expenses). 3. The applicant provides: * undated self-authored statement * power of attorney documentation * retirement orders * DA Form 199 (Informal Physical Evaluation Board (PEB) Proceedings) * DA Form 2173 (Statement of Medical Examination and Duty Status) * DD Form 261 (Report of Investigation LOD and Misconduct Status) * undated self-authored statement CONSIDERATION OF EVIDENCE: 1. The FSM enlisted in the Regular Army on 5 September 2007 and trained as a radio and communications security repairer. He served in Iraq from 25 April 2009 to 13 April 2010. 2. The applicant provided: a. a State of Georgia Traffic Crash Report, dated 17 April 2010, showing the FSM was involved in a motorcycle accident. The report states he was traveling too fast for conditions, failed to keep in the proper lane, and ran off the roadway; b. a DA Form 2173, dated 30 June 2010, showing the FSM was involved in a motorcycle accident on 17 April 2010 while home on leave. He was ejected from the motorcycle and sustained serious injuries to his leg, head, and internal organs. He was admitted to the hospital; c. medical records showing the FSM's injuries sustained from the motorcycle accident; d. a memorandum from the Commander, Bravo Company, U.S. Army Garrison, Fort McPherson, GA, dated 12 August 2010, showing an LOD investigation was initiated; e. a DD Form 261, dated 24 September 2010, showing an LOD investigation determined the FSM's motorcycle accident was not in the LOD due to his own misconduct. This form shows the FSM was intoxicated, driving erratic or reckless, and was not wearing a helmet; and f. a memorandum from the Fort McPherson Adjutant General, dated 18 October 2010, showing the formal LOD investigation was reviewed for completeness. 3. The FSM's medical evaluation board proceedings are not available for review. 4. On 20 June 2013, an informal PEB recommended his placement on the Temporary Disability Retired List (TDRL) with a 50-percent disability rating for PTSD. He concurred with the findings and recommendation of the informal PEB and waived a formal hearing of his case. 5. On 4 September 2013, he retired by reason of temporary disability (enhanced) and was placed on the TDRL effective 5 September 2013. 6. On 5 September 2014, a reevaluation by an informal PEB found him physically unfit due to PTSD. The PEB found the following conditions unfitting, but determined to be not in the LOD and therefore not compensable/not rated: * right hemipelvectomy with right leg amputation, removal of right pelvis and right abdominal muscles * spinal shock with weak anal sphincter/neurogenic bowel * spinal shock with neurogenic bladder * left leg compartment syndrome status post fasciotomy with residual scar and neuropathy with left lower extremity pain and weakness * scar status post emergency fasciotomy 7. The PEB recommended his permanent disability retirement with a 50-percent disability rating for PTSD. On 6 September 2014, he concurred with the findings and recommendation of the informal PEB and waived a formal hearing of his case. 8. On 17 September 2014, he was removed from the TDRL and permanently retired due to PTSD effective 18 September 2014 with a disability rating of 50 percent. 9. The applicant provided an undated self-authored statement wherein she states: * she is the FSM's natural mother * before her son went to Iraq he was a happy, fun-loving, easy-going young man * he got along with everyone * he loved children and was patient and tolerant * since her son returned from Iraq he has been withdrawn, angry, and confused * he is so cold and distant * he is not the same person * now he can't deal with children, they make him nervous * he gets easily frustrated and aggravated * he is struggling with comprehension * many people have taken advantage of him * his nightmares are intense and scary * she never knows what to do * her son served in the Army and honored it * he came home broken 10. On 4 March 2016, an advisory opinion was obtained from the Agency Legal Advisor, U.S. Army Physical Disability Agency. The opinion states: a. A PEB found the FSM unfit for PTSD and awarded a 50-percent disability rating with placement on the TDRL. Numerous other physical conditions related to the motorcycle accident were also unfitting, but found to be non-compensable. The FSM concurred with the PEB findings and waived his right to a formal hearing. He was removed from the TDRL on 17 September 2014 and permanently retired with a 50-percent disability rating for PTSD. b. A formal LOD investigation found the FSM had injured himself in a motorcycle incident while intoxicated and because of erratic or reckless conduct on his part. This LOD determination has not been overturned by the U.S. Army Human Resources Command and is still in effect. As noted above, disabilities caused by any intentional misconduct or willful neglect are not authorized to receive any compensation for any injuries/disabilities as a result of those actions. The U.S. Army Physical Disability Agency has no authority to overturn or change a finding of not in the LOD. c. A review of the case files provides no basis or evidence to support any conclusion that the FSM's PTSD caused him to ride his motorcycle while intoxicated and injure himself through willful negligence. d. The PEB findings of no compensation for all unfitting conditions as the result of the not in the LOD incident was required by statute and supported by a preponderance of the evidence. e. The U.S. Army Physical Disability Agency recommends no changes to the FSM's military records. 11. The advisory opinion was forwarded to the applicant for information and to allow her the opportunity to submit comments or a rebuttal. On 23 March 2016, she responded and stated: a. Her son had just completed a deployment less than 5 days before the accident occurred. He had been released to take leave by his commanding officer less than 24 hours after reaching the United States. He had suffered a traumatic event during his deployment in which he witnessed a man burn to death during a rescue attempt. He suffers from nightmares, has trouble in public, and is easily taken advantage of because of his PTSD. He was suffering from PTSD severely when he left the base. b. Her son does not remember drinking that night. However, according to Army regulations, because he was suffering from PTSD it makes the issue of whether he was drinking or not a moot point. He was released from base too soon. He was suffering from PTSD and needed help. He didn't receive help which resulted in the accident. REFERENCES: 1. Army Regulation 600-8-4 (LOD Policy, Procedures, and Investigations), appendix B (Rules Governing LOD and Misconduct Determinations), rule 3, states that injury, disease, or death that results in incapacitation because of the abuse of alcohol and other drugs is not in the LOD. 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. 2. Army Regulation 600-8-4, appendix B, rule 9, states injury or death because of erratic or reckless conduct, without regard for personal safety or the safety of others, is not in the LOD. It is due to misconduct. This rule has its chief application in the operation of a vehicle but may be applied with any deliberate conduct that risks the safety of self or others. 3. Army Regulation 635-40 (Physical Evaluation for Retention, Retirement, or Separation) governs the evaluation of physical fitness of Soldiers who may be unfit to perform their military duties because of physical disability. Under the laws governing the Army Physical Disability Evaluation System, Soldiers who sustain or aggravate physically unfitting disabilities must meet several LOD criteria to be eligible to receive retirement and severance pay benefits. One of the criteria is that the disability must have been incurred or aggravated while the Soldier was entitled to basic pay or the proximate cause was while performing active duty or inactive duty training. DISCUSSION: 1. The applicant contends the not in the LOD determination for her son's motorcycle accident on 17 April 2010 is unjust because he was suffering from PTSD at the time. 2. According to the DD Form 261 and police report, the FSM was intoxicated, speeding, and driving erratically without a helmet, causing his injuries. 3. He was found to be not in the LOD due to his own misconduct. 4. The applicant's contentions were carefully considered. However, since the governing regulation states that any injury resulting in incapacitation because of the abuse of alcohol or because of erratic or reckless conduct without regard for personal safety or the safety of others is misconduct, it appears the investigating officer and approval authorities made a proper LOD determination. 5. There is insufficient evidence on which to base any compensation for the injuries incurred as a result of his misconduct. //NOTHING FOLLOWS// ABCMR Record of Proceedings AR20150000953 Enclosure 1 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS ABCMR Record of Proceedings (cont) @#!CASENUMBER 2 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 1 ABCMR Record of Proceedings (cont) AR20140021050 2 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 2