BOARD DATE: 30 March 2017 DOCKET NUMBER: AR20150016017 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 BOARD DATE: 30 March 2017 DOCKET NUMBER: AR20150016017 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. BOARD DATE: 30 March 2017 DOCKET NUMBER: AR20150016017 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 requests: * correction of his line of duty (LOD) determination of "not in LOD – due to own misconduct (NLOD-DOM)" to "in the LOD (ILOD)" * a personal appearance before the Board 2. The applicant states: a. An incorrect LOD was completed in October 2009 regarding an incident on 9 October 2009 that was deemed NLOD-DOM. This incident that occurred at Fort Hood, TX, in the operations/barracks complex was in fact an attempt to commit severe bodily harm or suicide after repeated cries for help with post-traumatic stress-disorder (PTSD). This incident left him paralyzed from a completely severed spinal cord, a complete injury at T8-T9 from the waist down. He remains paralyzed to this day. b. He is not attempting to gain any monetary benefits from this. He is already receiving 100 percent disability compensation from the Army and 100% from the Department of Veterans Affairs for PTSD and paraplegia (loss of use of both feet). He is appealing this LOD because it has haunted him to this day; the course of the event that lead to this; and the improper handling of the situation before, during, and after. He is appealing for justice/correction due to the fact that this was an attempted suicide due to suffering with the effects of PTSD from extreme combat. c. He recently recovered from a long mental and physical recovery and a battle for his life with surgeries for the past 5 years. His request to the Board was denied in 2011. He did not believe that he was ready to submit a proper appeal in 2011. However, he felt the need to apply again after he had been placed on the permanent Retired List and read about the changes in policy. d. He is a combat infantryman who served honorably and received the Bronze Star Medal for meritorious achievement in battle in Iraq in November 2004. During the last part of 2008, he began seeking help for combat stress. He was diagnosed with sleep problems, depression, insomnia, and anxiety, etc. At the time he was prescribed dozens of different psychotropic medications and returned to duty to lead troops and continue on combat patrols. He was on a permanent change of station to Fort Hood in January 2009. After arriving at Fort Hood, he continued to see psychiatrists and was prescribed ten different psychiatric medications. He was diagnosed with PTSD and experienced three visits to the emergency room for suicide attempts. e. In October 2009, he was recommended for a medical board for PTSD. His request to receive inpatient treatment at Loral Ridge, San Antonio, TX, was denied. It should be noted that during his deployment to Iraq he witnessed a Soldier's head exploding in front of him from sniper bullets during an uprising in the south near Basra in late 2008, where he had been carelessly standing in the open a minute before. f. When he was first diagnosed with issues and prescribed psychiatric medications he experienced some disciplinary trouble. He began to act very apathetic about life and his self-care. His behavior was erratic and unstable due to the treatment from the psychiatric medications and no medical follow-up or supervision. Up until this point his record had been stellar and he was a decorated, squared-away noncommissioned officer and leader. Also, at this time he was living in the barracks. On the day of the LOD incident, he was taking ten different prescribed medications and was consuming alcohol as well that night. He thought that if he lost his balance and was badly injured it would be a way to receive help and if he died then the pain will be over. He released his hand from holding the railing he sat on and fell 70 feet. He was instantly paralyzed and unconscious. He was medically evacuated to the hospital and later woke up there. g. He was a very proud combat infantryman ashamed that he attempted to commit suicide/hurt himself; however, he did not want people to think he was a coward. He sees how the unit and LOD investigator should be the ones ashamed. They were attempting to make it seem as just a simple drunken accident that just happened all of a sudden. They were just covering their asses. Regardless, the fact remains that he was up on that railing because he was at his breaking point as a result of not receiving help with his PTSD symptoms from anyone at Fort Hood or the 1st Cavalry Division. They witnessed what occurred that night/morning as a way to get help and that he could not handle the guilt and depression of what he experienced from losing friends and all the killing. h. The poor mental health treatment and the medications prescribed by the Army made everything worse. This was a disaster waiting to happen. This was the course of events that led up to this that he believes should have been addressed and could have been prevented. He had not been released from the hospital, was recovering from spinal reconstruction surgery, and was taking powerful pain medications when the LOD investigator had him sign the papers. He feels that he was not mentally ready to properly address his concerns. i. He is providing evidence that extreme combat PTSD as a combat infantryman had a significant bearing on the 9 October 2009 incident and the recommendation for his permanent retirement due to PTSD. He contends that this incident that left him paralyzed was not due to willful misconduct, but was ILOD, possibly even combat related due to PTSD. This error in the LOD investigation results continued to haunt him every day of his life and must be settled in the interest of justice to the United States of America, the Army, and the Soldier. 3. The applicant provides: * DA Form 3975 (Military Police Report) * Appointment of LOD Investigating Officer (IO) and LOD memoranda * LOD determination memoranda * Standard Forms (SF) 600 (Health Record – Chronological Record of Medical Care) * letter from the Army Board for Correction of Military Records (ABCMR) CONSIDERATION OF EVIDENCE: 1. Title 10, U.S. Code, section 1552(b), provides that applications for correction of military records must be filed within 3 years after discovery of the alleged error or injustice. This provision of law also allows the Army Board for Correction of Military Records (ABCMR) to excuse an applicant's failure to timely file within the 3-year statute of limitations if the ABCMR determines it would be in the interest of justice to do so. While it appears the applicant did not file within the time frame provided in the statute of limitations, the ABCMR has elected to conduct a substantive review of this case and, only to the extent relief, if any, is granted, has determined it is in the interest of justice to excuse the applicant's failure to timely file. In all other respects, there are insufficient bases to waive the statute of limitations for timely filing. 2. He enlisted in the Regular Army (RA) on 11 July 2001 and he held military occupational specialty 11B (Infantryman). He was honorably released from active duty on 11 May 2005 and was transferred to the U.S. Army Reserve. His DD Form 214 (Certificate of Release or Discharge from Active Duty) shows he was credited with completing 3 years, 10 months, and 18 days of service. 3. He enlisted in the RA on 1 August 2006 and reenlisted on 8 December 2008. He served in Iraq from 29 October 2007 to 10 December 2008. 4. He provided the following: a. Nine SFs 600, dated between 20 May and 2 October 2009, showing he received medical treatment and was prescribed medications for various medical conditions to include depression; anxiety disorder, not otherwise specified; and PTSD. b. A DA Form 3975 showing he had fallen from a third floor balcony on 8 October 2009. He was transported by emergency medical services to the hospital where he received treatment for head and neck injuries and was admitted for further evaluation. c. An LOD Investigation memorandum, dated 20 October 2009, wherein the Chief, LOD Investigations, forwarded the DA Form 2173 (Statement of Medical Examination and Duty Status) for an appropriate LOD investigation. d. An Appointment of an LOD IO memorandum, dated 22 October 2005, showing an IO was appointed to conduct a formal investigation into the facts and circumstances pertaining to the applicant's injuries on 8 October 2009. The memorandum indicated his injuries were the result of a motor vehicle accident, not a fall from a balcony. e. An LOD Investigation memorandum, dated 3 November 2009, wherein the LOD IO stated the based upon evidence he had collected he believed the applicant's injuries as a result of his accident on 8 October 2009 were incurred NLOD-DOM. He advised the applicant of his rights. f. A Statement, dated 3 November 2009, wherein the applicant acknowledged receipt of the IO's memorandum. The applicant stated that he wished to withdraw his previous statements given on 27 October 2009 relating to that LOD investigation and did not wish to provide a substitute statement. g. A Legal Review of LOD Investigation memorandum, dated 18 November 2009, wherein a Judge Advocate found the investigation to be legally sufficient. The investigation was forwarded to the appointing and final approving authorities for determination. h. An Overdue LOD Investigation memorandum, dated 20 November 2009, wherein the Chief, Fort Hood Casualty Assistance Center (CAC), requested the applicant's LOD investigation. i. A letter, dated 24 August 2011, wherein the ABCMR advised the applicant that a review of his application with attachments did not contain sufficient evidence to support his request for correction of his NLOD-DOM which occurred on 8 October 2009. He was advised he needed to provide a copy of his DD Form 261 (Report of Investigation of LOD and Misconduct Status) with attachments for the Board to consider his application. 5. His records contain the following: * DA Form 2173, dated 14 May 2010, showing he was admitted to the hospital on 25 April 2010 for febrile illness * LOD memorandum, dated 27 May 2010, approving his LOD for febrile illness 6. On 7 October 2010, an informal PEB reconsidered his medical conditions of PTSD, loss of use of both feet, neurogenic bowel and bladder, and unstable scars. The PEB found him physically unfit and recommended his temporary retirement and placement on the Temporary Disability Retired List (TDRL). He concurred. 7. An Army Grade Determination Review Board memorandum, dated 5 November 2010, advised him, in effect, that the Board determined the highest grade in which he served satisfactory for the purpose of computation of disability retirement or separation pay was E-6. 8. He was honorably retired, in pay grade E-6, on 20 February 2011, under the provisions of Army Regulation (AR) 635-40 (Physical Evaluation for Retention, Retirement, or Separation), paragraph 4-24b(2), by reason of temporary disability, and he was placed on the TDRL on the next day. His DD Form 214 shows he was credited with completing 4 years, 6 months, and 18 days of active service. 9. In an advisory opinion, dated 22 April 2016, the Director, Casualty and Mortuary Affairs Operation Center, U.S. Army Human Resources Command (AHRC), stated: a. AHRC could not locate an LOD for the applicant. That office was able to locate an email regarding an AHRC review of an LOD investigation, dated 9 October 2009, where the applicant suffered injuries. That review found the applicant NLOD-DOM and was returned to the Fort Hood CAC on 23 June 2010. His office then contacted the Fort Hood CAC in an attempt to locate that LOD. The Fort Hood CAC found archived records showing six LOD investigations for the applicant, dating from 21 September 2009 to 20 December 2010. The CAC had destroyed all records, as they only maintain a copy for 5 years. b. With the substance of information that was provided to AHRC by the ABCMR, AHRC was unable to render an appropriate and justifiable advisory opinion. Any advisory opinion provided by them would be solely based on opinion rather than evidence. 10. The advisory opinion was provided to the applicant on 22 April 2016 for acknowledgement/rebuttal. He did not respond. REFERENCES: 1. AR 600-8-4 prescribes procedures for investigating the circumstances of disease, injury, or death of a Soldier and standards and considerations used in determining LOD status. The regulation states in: a. Appendix B: (1) Rule 1 – Injury, disease, or death directly caused by the individual’s misconduct or willful negligence is NLOD. 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 ILOD; and (2) whether it was due to misconduct. (2) Rule 2 – Mere violation of military regulation, orders, or instructions, or of civil or criminal laws, if there is no further sign of misconduct, is no more than simple negligence. Simple negligence is not misconduct. Therefore, a violation under this rule alone is not enough to determine that the injury, disease, or death resulted from misconduct. However, the violation is one circumstance to be examined and weighed with the other circumstances. (3) Rule 3 – Injury, disease, or death that results in incapacitation because of the abuse of alcohol and other drugs is NLOD. 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. b. Paragraph 3-6a – The LOD appointing authority must review all informal LOD investigations to determine the proper action to be taken. After the informal LOD investigation had been reviewed, the approving authority would take action. Commanders must initiate and complete LOD investigations, despite a presumption of NLOD. An NLOD determination could only be made with a formal LOD investigation. 2. AR 15-185 (ABCMR), paragraph 2-11, states applicants do not have a right to a hearing before the ABCMR. The Director or the ABCMR may grant a formal hearing (personal appearance) whenever justice requires. DISCUSSION: 1. With respect to correction of the applicant's 2009 LOD Determination of "NLOD-DOM" to "ILOD:" a. The evidence shows he served in Iraq from 29 October 2007 to 10 December 2008. Upon his return, he received medical treatment and was prescribed medications for various medical conditions to include depression; anxiety disorder, not otherwise specified; and PTSD. b. On 8 October 2009, he sustained head and neck injuries after falling from a third floor balcony and was admitted to the hospital. A formal investigation was requested and he acknowledged the proposed action. The LOD investigation determined his actions resulted in misconduct. His case was determined to be "NLOD-DOM." There is no evidence he appealed. c. There is no evidence and he provided none showing this LOD investigation and determination was not accomplished in compliance with applicable regulations then in effect with no indication of procedural errors which would have jeopardized his rights. Absent such evidence, regularity must be presumed in this case. d. The ABCMR operates pursuant to law and begins its consideration of each case with the presumption of administrative regularity. The ABCMR will decide cases on the evidence of record. e. He was found unfit for PTSD, loss of use of both feet, neurogenic bowel and bladder, and unstable scars by a PEB. The PEB recommended his temporary disability retirement. He was honorably retired on 26 February 2011 and placed on the TDRL the next day. 2. With respect to his request for a personal appearance before the Board, by regulation, an applicant is not entitled to a hearing before the Board. Hearings may be authorized by a panel of the Board 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. //NOTHING FOLLOWS// ABCMR Record of Proceedings AR20150000953 Enclosure 1 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS ABCMR Record of Proceedings (cont) AR20150016017 2 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 1 ABCMR Record of Proceedings (cont) AR20150016017 2 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 2