BOARD DATE: 16 May 2017 DOCKET NUMBER: AR20160006018 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: 16 May 2017 DOCKET NUMBER: AR20160006018 BOARD DETERMINATION/RECOMMENDATION: The evidence presented does not demonstrate the existence of a probable error or injustice. Therefore, the Board determined that the overall merits of this case are insufficient as a basis to amend the decision of the ABCMR set forth in Docket Number AR20130015977, on 29 July 2014. ____________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: 16 May 2017 DOCKET NUMBER: AR20160006018 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, spouse of a deceased former service member (FSM), requests reconsideration of her earlier request for correction of the FSM's military records to show his death was "In Line of Duty" instead of "Not in Line of Duty – Due to Own Misconduct." 2. As a new issue, the applicant also requests his discharge be changed from less than honorable to honorable. 3. The applicant states: * physicians determined her husband's death was due to post-traumatic stress disorder (PTSD) * since her last appeal, a former Secretary of Defense demanded that the Army Board for Correction of Military Records (ABCMR) give consideration to Soldiers diagnosed with this disorder * when she first applied for the correction, this change had not been made by the Secretary of Defense; she has already appealed twice and was denied prior to September 2014 * the Department of Veterans Affairs (VA) determined PTSD was the leading cause of death and indicated "service-connected" status as of 1 March 2015 * she wants her case expedited; she has waited 6 years to receive benefits based on the death of her husband 3. The applicant provides: * 2014 Secretary of Defense Memorandum * 2015 VA Summary of Benefits * Printout from the Yale Law Journal pertaining to PTSD * Selected medical records, outpatient notes, and surgery report * Post-Deployment Health Assessment * Line of duty determination * VA Dependency and Indemnity Compensation (DIC) decision CONSIDERATION OF EVIDENCE: 1. Incorporated herein by reference are military records which were summarized in the previous consideration of the applicant's case by the ABCMR in Docket Number AR20130015977, on 29 July 2014. 2. The FSM enlisted in the Regular Army on 17 October 1990 and he held military occupational specialty 21B (Combat Engineer). 3. He served through multiple reenlistments in a variety of stateside or overseas assignments, including Korea, Bosnia (April 1999 to March 200), and Iraq (April 2003 to September 2003), and he attained the rank/grade of staff sergeant/E-6. 4. On 17 December 2008, the FSM participated in a unit urinalysis and his urine sample tested positive for a Schedule II controlled substance. 5. On 30 December 2008, the Chief, Army Substance Abuse Program (ASAP), Fort Benning, notified the FSM’s commander that the FSM required a medical review officer determination in response to a positive urinalysis test for oxycodone and oxymorphone. A mandatory appointment was made for 7 January 2009 with the Medical Review Officer at Martin Army Community Hospital to determine if the positive urinalysis was from legal or illegal use. 6. On 9 January 2009, he was counseled by his chain of command for testing positive on a urinalysis on 17 December 2008. The counseling statement indicated this was the second time he tested positive. The first was for expired medication in May 2008. He had been command-referred to the ASAP for non-prescription medication. A Medical Review Officer determined that here was no legitimate medical use for the identified substance. 8. On 21 January 2009, he accepted nonjudicial punishment under the provisions of Article 15 of the Uniform Code of Military Justice for wrongfully using oxycodone/oxymorphone, a Schedule II controlled substance. He was reduced to E-5. 9. On 7 July 2010, the FSM failed to show up for physical training. One of his senior noncommissioned officers (NCO) went to his apartment and found him unresponsive. Emergency Medical Services were called. He was found with empty bottles of oxycodone and Percocet, as well as empty cans of computer duster air [chemical inhalants tetrafluoroethane or difluoroethane]. He was pronounced dead. A DA Form 2173 (Statement of Medical Examination and Duty Status) was completed and indicated: * the FSM was absent without authority from 0600 hours on 7 July 2010 to 0750 hours the same date * the FSM's duty status was absent without authority (failure to report) * a formal line of duty investigation was required 10. On 23 July 2010, the Casualty and Mortuary Affairs Branch, U.S. Army Human Resources Command (HRC), issued a DD Form 1300 (Report of Casualty) which indicated the FSM died as a result of non-hostile reasons and the determination was pending. The applicant was identified as the next of kin and was entitled to the Servicemembers' Group Life Insurance proceeds at 100 percent ($400,000) as well as the death gratuity at $100,000. 11. Meanwhile, the U.S. Army Criminal Investigation Command (CID) conducted an investigation. The CID Report of Investigation indicates that the Fort Benning Provost Marshall reported the death of a Soldier off post. A CID Report of Investigation (ROI), dated 13 August 2010, shows the FSM accidentally died because of huffing. The report shows: a. The FSM was discovered in his room on his bed with negative vital signs for life. Detectives from the Columbus Police Department assigned to investigate his death found five cans of compressed air in his room with one next to his body, one on the bed, and three on a bedside table. Prescription OxyContin and Percocet were discovered in the room and inside the FSM's car. b. A CID Special Agent conducted a search of the Army Criminal Investigation and Criminal Intelligence database, which revealed the FSM was in the Alcohol and Drug Abuse and Prevention Control Program (ADAPCP) and the FSM was the subject of CID Report of Investigation (last five digits 61893) for testing positive for oxymorphone and oxycodone during a unit urinalysis. c. The initial autopsy conducted by a medical examiner from the Georgia Bureau of Investigation disclosed no trauma other than a superficial abrasion to the FSM's leg. The medical examiner stated that the neck was completely normal and the hyoid bone was intact and the volatile toxicology, which should show the presence of chlorofluorocarbons, was still pending. At that time, everything was pointing to accidental as the manner of death. d. The investigation by Columbus Police Department determined the manner of death was accidental as a result of huffing compressed air and the cause of death was likely due to increased chlorofluorocarbons (CFCs), which may have caused a disruption in the heart rhythm. 12. The State of Georgia issued a death certificate listing the immediate cause of death as "Toxic Effects of Difluoroethane ." An autopsy was conducted and the Medical Examiner determined the manner of death was "Accident." 13. A DD Form 261 (Report of Investigation – Line of Duty and Misconduct Status) was initiated. It shows: a. An investigating officer (IO) was appointed to investigate the circumstances of the FSM's death. The IO completed his investigation and determined the FSM died at 0750 hours, on 7 July 2010, in Columbus, GA, after an accidental death from huffing compressed air. The medical diagnosis was that of toxic effects of difluoroethane. b. The IO remarked that the totality of the events leading to the FSM's death indicated his death was caused due to his conscious decision to inhale the compressed air. This showed blatant as well as willful misconduct on the FSM's part. The IO ruled the FSM's death as "Not in Line of Duty – Due to Own Misconduct." c. The appointing authority, an officer of the 197th Infantry Brigade, approved the findings on 24 November 2010 and the final approving authority approved the IO's findings of "Not in Line of Duty – Due to Own Misconduct" on behalf of the Secretary of the Army. 14. On 17 November 2010, a military attorney completed a legal review for the line of duty investigation regarding the FSM and determined that the investigation complied with the legal requirements of Army Regulation (AR) 600-8-4 (LOD Policy, Procedures, and Investigations). The military attorney opined that the evidence supported the findings and the findings supported the recommendation. 15. On 16 December 2010, the Chief, Casualty and Mortuary Affairs Branch at HRC made a determination that the FSM died on 7 July 2010 as a result of toxic effects of difluoroethane which was "Not in Line of Duty – Due to Own Misconduct" at the time of death. The Army issued a final DD Form 1300 indicating the type of casualty as "Non-hostile" and the category of casualty as "Accident." 16. Previously, the Board forwarded the applicant's case to HRC for review. HRC reviewed the case and rendered an advisory opinion on 13 November 2013. The HRC official stated that HRC rendered a line of duty determination on [the FSM] on 31 December 2010. The determination was "Not in Line of Duty-Due to Own Misconduct" for toxic effects of difluoroethane. · a. The FSM's line of duty appeal case has never been submitted to HRC for review. The December 2010 determination was the Department of the Army review, which is required for all line of duty investigations resulting in an adverse determination. b. Fort Benning CID conducted an investigation regarding the death of the FSM. During the room search conducted by the Columbus Police Department, five (5) cans of compressed air were found. Two (2) of those cans were located on the bed near the FSM and three (3) were located on a bedside table. Prescription OxyContin and Percocet were also discovered in the room and in his vehicle. The cans of compressed air discovered in the FSM's room are indicative of the cause of death listed on the Georgia Death Certificate – toxic effects of difluoroethane. c. Approximately one (1) month before the FSM's passing, he was arrested by the Columbus Police Department for "huffing" after being discovered in his vehicle in a public parking lot. The FSM was also being investigated by the Fort Benning CID for testing positive for oxycodone and oxymorphone during a unit urinalysis. d. The paragraph in AR 600-8-4 that was tested is Appendix B, Rule 3 which states injury, disease or death that results in incapacitation because of the abuse of alcohol or other drugs is not in line of duty. It is due to own misconduct. This rule applies to the effect of the drug on the Soldier's conduct, as well as the physical effect on the Soldier's body. Any wrongfully drug-induced action(s) that cause injury, disease or death are misconduct. In conclusion, based on the above evidence and opinions, HRC found the FSM's passing to be "Not in Line of Duty – Due to Own Misconduct." 17. The Army Review Boards Agency requested a review of this case by a psychiatrist in accordance with the Secretary of Defense memorandum, dated September 2014. As a result, the ARBA psychiatrist reviewed this case and rendered an advisory opinion on 9 February 2017. a. 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 (Active Duty Enlisted Administrative Separations), dated 6 September 2011. b. The psychiatrist restated the FSM’s military history. She then reviewed the application, VA documentation, a Post Deployment Health Assessment and the service member’s previous ABCMR Record of Proceedings. The electronic military medical record (AHLTA) and the VA electronic medical record (JLV) were also reviewed. c. A VA document dated 23 March 2015 supplied by the FSM’s wife indicates she and the children were granted service-connected death benefits (DIC) effective 7 July 2010. A second VA document supplied by the FSM’s wife dated 27 March 2015 indicates that the FSM died as a result of a service-connected disability and was considered to be totally and permanently disabled at the time of death. The FSM’s wife indicates in her 1 March 2016 ABCMR application that the VA “determined PTSD as the leading cause of death and indicated a 'service-connected' status as of March 2015.” However, review of the VA documentation supplied by the service member’s wife does not indicate that the VA determined the service member had PTSD nor does it indicate that the claimed PTSD was the cause of the service member’s death. e. Review of the VA electronic medical record (JLV) indicates that the deceased service member’s records underwent a VA Compensation and Pension Examination on 23 Dec 2014. This examining psychologist concluded “There is no way to know whether the veteran suffered from PTSD without resorting to speculation.” The rationale cited by the examiner was “There are no available mental health records or psychiatric evaluation. The available record does not show any evidence that the Veteran was ever diagnosed with PTSD.” f. The Post Deployment Health Assessment (DD Form 2796) dated 2 February 2004 indicates that the service member deployed to Iraq from 8 April 2003 to 9 Sept 2003. The service member indicated in this assessment that he engaged in direct combat where he discharged his weapon and he felt that he was in great danger of being killed. He also acknowledged entering or closely inspecting destroyed military vehicles. He denied any history of trauma related nightmares, avoidance behaviors, hypervigilance, increased startle reaction or feelings of numbness/detachment. g. Review of the electronic military medical record indicates the following: * service member suffered from chronic pain due to orthopedic problems involving his hips and legs; to manage the pain, he was prescribed opioid medications * on 2 June 2008, he was seen by the ASAP and diagnosed with opioid intoxication; on 4 Feb 2009, this diagnosis was changed to opioid abuse; and on 18 Feb 2009, the diagnosis of alcohol abuse was added * on 19 March 2009, he was diagnosed with insomnia and was prescribed a sedative hypnotic medication, Lunesta (eszopiclone); a note from 1 June 2009 indicates that he continued to take Lunesta for insomnia * a 1 May 2009 ASAP note reports that he lived at Fort Benning while his wife and kids remain at Fort Carson “for medical reasons” * on 22 May 2009, ASAP notes indicate that the service member completed a Brief Mood Survey; according to this note, the results of the mood survey were normal * a 24 June 2009 ASAP note documents “Service member…shared that he has a daughter with lupus and he needs medical benefits to support his family” * on 20 August 2009, the service member successfully graduated from ASAP * the service member was referred to the Pain Clinic on 28 July 2009 for management of his chronic pain h. On 8 April 2009, the service member underwent a command-directed mental status evaluation. During this evaluation, the service member denied irritability, anxiety, depression or sleep issues. No psychiatric illness was identified. i. A Report of Medical History dated 8 April 2009 indicates that the service member endorsed the following two items: frequent trouble sleeping and history of head injury. (The VA C&P exam dated 23 December 2014 documents that the service member was hospitalized after a serious motor vehicle accident on 17 March 1996 during which he sustained a closed head injury, a liver hematoma, a right femur fracture, and scalp lacerations and contusions.) j. On 1 June 2010, the service member was seen in ASAP as a self-referral after being found by civilian police to be inhaling (huffing) canned air in his car. At that time, he denied suicidal or homicidal thoughts or ideations or plans but reported he “is depressed and has a lot of stress… at this time”. He stated that he planned to talk to his unit NCOs about his depression and stressors. At his request, ASAP contacted the NCOs as a part of his command and support team. k. He continued to be followed by ASAP as an outpatient. l. On 7 July 2010, service member did not report for morning formation. He was found dead in his motel room. According to the CID report, there were 5 cans of compressed air in his room, 2 on the bed next to him, and 3 on the bedside table. Various pain medications were also found in the room. An autopsy conducted by the Georgia Bureau of Investigation reported that the immediate cause of death was due to the toxic effects of difluoroethane. There were no signs of trauma on the service member’s body. There was no indication from the toxicology report of any illicit drug use as a contributing factor. It was noted in the report that “huffing is not normally associated with suicide.” The manner of death was felt to be accidental. The death was ruled as not in the line of duty due to the service member’s conscious decision to inhale compressed air. m. There is no indication in his military records that the service member failed to meet military medical retention standards in accordance with AR 40-501, chapter 3, as they were applicable to the service member’s era of service. n. The available records do not support the service member’s wife’s contention that the service member suffered from PTSD and that this PTSD was the cause of his death. In the post deployment assessment completed by the service member, he indicated that he was exposed to combat and fired a weapon in combat but denied experiencing PTSD symptoms upon redeployment. Review of the service member’s medical records indicate he had very few contacts with Behavioral Health. One progress note documents that the service member was diagnosed with and treated for insomnia while on active duty. There is also a brief note dated 1 June 2010 in which it is documented that the service member acknowledged being “depressed and has a lot of stress.” A command directed Mental Status Evaluation dated 8 April 2009 indicates that no psychiatric illness was found. During this exam, the service member denied irritability, anxiety, depression, and sleep issues. o. While there is no evidence the service member suffered from PTSD, there are indicators that other Behavioral Health issues did play a role in the service member’s death: * the service member had a history of a closed head injury incurred during a serious motor vehicle accident in 1996 * the service member was diagnosed with Insomnia on 19 May 2009 for which he received medication. A note from 1 June 2009 documents that he continued to take medication to treat his insomnia * the service member suffered from severe, chronic pain secondary to his orthopedic issues * the service member was separated from his family and lived alone in Fort Benning due to the fact his stepdaughter was ill and required medical care in Fort Carson * the VA C&P examination documents that the service member’s step daughter was very ill at the time of the service member’s death. According to the C & P examiner’s report “There are multiple letters from daughter’s physicians regarding daughter’s lupus, with 'grim prognosis' and end-stage renal disease. Records show that the daughter passed away about a month after the Soldier’s death” p. While there is no way to know for sure, the available documentation strongly suggests that the service member’s death may not have been accidental but, rather, was due to suicide. It appears from the CID report that the medical examiner’s statement that “huffing is not normally associated with suicide” was interpreted by the military authorities to mean that the service member’s death could not have been due to suicide. Given the medical examiner’s statement, the service member’s previous episode of “huffing” and the lack of a suicide note, one can see how the military may have arrived at this conclusion. However, the military authorities do not appear to have been aware of the fact that the service member’s stepdaughter was terminally ill with lupus and renal failure and, in fact, died a month after his death. It is the Agency Psychiatrist’s contention that the service member’s history of severe closed head injury, chronic pain, social isolation and depression in combination with his young stepdaughter’s terminal illness was more than the service member could cope with and, ultimately, led to his suicide by difluoroethane inhalation. q. Of note, the medical examiner’s statement that "huffing is not normally associated with suicide" is correct. However, there are case reports of difluoroethane inhalation being used to commit suicide (Sakai, et al: "Sudden Death Involving Inhalation of 1,1-Difluoroethane with Spray Cleaner" Forensic Science International 2011 March 20;206(1-3):e58-61). Additionally, an article published in Clinical Toxicology dated 28 Feb 2014 entitled "Suicide by Non-Pharmaceutical Poisons in San Diego County" states "Inhaled toxins are the most popular in non-pharmaceutical suicides, likely due to their rapidity of death." (Clinical Toxicology (Philadelphia) 2014 Mar; 52(3):171-5). r. In conclusion, the presence of likely poor impulse control secondary to severe head injury, social isolation, depression, insomnia and chronic pain in combination with his young stepdaughter’s serious illness and impending death more than likely rendered the service member unable to control his actions or to comprehend the foreseeable consequences of his actions leading to his death by suicide via difluoroethane inhalation. 18. The applicant was provided with a copy of this advisory opinion. In response, the applicant responded to each paragraph (numbered 1 through 18 in the advisory opinion; listed as (a) through (r) above). a. References are Psychiatric Services: PTSD Treatment for Soldiers After Combat Deployment, Low Utilization of Mental Health Care and Reasons for Dropout (Volume 65, Issue 8, August 2014); Psychiatric Services: Stigma, Barriers, and Use of Mental Health Services Among Active Duty and National Guard Soldiers After Combat (Volume 61, Issue 6, June 2010); and Yale Law Journal: How the Board for Correction of Military Records is Failing Veterans with PTSD (Volume 123, Number 5, March 2014). b. There is at least one tour of duty not mentioned: In theater; Iraq 2005 – 2006. c. The records cited were partly used to draw the Army Review Boards Agency's psychiatrist's conclusion. The name of the reviewing official was redacted; and the identity and credentials are unknown. d. The document from the VA was primarily sent to show that the determination had been made by a medical team that took the span of the service member's career into consideration. The VA medical team conducted a similar analysis of the FSM's life at the time of death and the span of his career. They determined that PTSD was likely the cause of his death and issued a decision based upon a more comprehensive approach. e. Emphasis by the ARBA psychiatrist is being placed on a specific diagnosis of PTSD in the FSM's medical records, since his enlistment in the United States Army as of 10 October 1990. Extensive studies have shown that Soldiers do not seek the mental health care they desperately require. The FSM is one of many Soldiers who were discouraged (2003 – OIF/OEF era) from seeking mental help for combat-related issues. She lived with him post-deployment and she is well aware of the aftermath. This is her lay opinion, based on personal, real-life facts; not hypothesized. His suffering became mine as well. The ARBA psychiatrist reiterates the findings of the VA examining psychologist: "There is no way to know whether the veteran suffered from PTSD without resorting to speculation." Medical professionals who have treated Soldiers and veterans post deployment have found that "Treatment reach for PTSD after deployment remains low to moderate, with a high percentage of Soldiers not accessing care or not receiving adequate treatment. This study represents a call to action to validate interventions to improve treatment engagement and retention" (Article: "PTSD Treatment for Soldiers After Combat: Low Utilization of Mental Health Care and Reasons for Dropout: August 2014"). f. She reiterates the access to care that was underdeveloped in 2003. The FSM's second Iraq deployment exacerbated existing mental issues. Longitudinal studies proved that Soldiers were less likely to report suspected mental health issues that would have yielded a prognosis of PTSD, due to fear of "stigmas" associated with suffering. Many Soldiers were denied promotions if they were found to have any indication of a mental impairment on their record. Specific findings of the aforementioned study conclude "Despite the high estimated prevalence of mental problems after combat, research has shown that only half of the Soldiers with a mental problem reported seeking care within a year." Further, "This survey-based study examined rates of mental health problems, mental health care utilization, stigma, and organizational barriers to care between active duty and National Guard component Soldiers at 3 and 12 months post deployment ("Stigma, Barriers to Care, and Use of Mental Health Services Among Active Duty and National Guard Soldiers After Combat," June 2010). The FSM denied "history of trauma related nightmares, avoidance behaviors, hypervigilance, increased startle reaction or feelings of numbness/detachment," due to fear of stigmas. At home, he did not hide these symptoms. He frequently awoke in the middle of the night screaming and sweating profusely. She was there; she knows the truth. g. The FSM did suffer from chronic pain and was prescribed opioids to manage the pain and continued to excel at work. ASAP denied release of information to her. The FSM had insomnia for several years. During an examination related to another issue, he indicated that he was suffering from insomnia; Lunesta was prescribed to alleviate the symptoms. The "medical reasons" were directly due to their daughter having access to quality health care that was not available in Georgia. She and the children lived with the FSM at Fort Benning and Bri--- was transferred from Fort Carson to Fort Benning's Exceptional Family Member Program (EFMP) due to lupus. They could not achieve the same level of care at Martin Army Community Hospital (MACH - Fort Benning) or the local Columbus, GA, medical establishment, collectively. After careful consideration, they decided that it was best to move the children and her to Fort Carson/Colorado Springs, CO, to improve that issue. They subsequently applied for a compassionate reassignment so that they could return to Fort Carson, via the EFMP, but were denied; he remained at Fort Benning. They were to visit each other and retire at the location that would best suit their lives. As the Board is aware, that did not occur. In 2009, the FSM was a Senior Bradley Instructor. To that date, he was the only enlisted Soldier to have achieved that position/status and he worked very hard to learn every aspect of the Bradley Fighting Vehicle. She is very proud of his achievements. They stayed up many nights studying and quizzing for him to pass with flying colors. The mental health issues are not completely indicative of who he was. For this line item, she reiterates the "stigma" attached to Soldiers with mental issues and the expectation that they could successfully execute decisions involving over $3.2 million worth of equipment (per unit). He, therefore, did not indicate any issues in said "mood survey." The FSM loved his daughter intensely and did all he could to ensure that she had access to the best medical care he could provide. His mission in the ASAP program was to improve his life, a positive step. He was determined to get the health issues resolved and to achieve a better quality of life. h. Though the FSM denied issues with irritability, anxiety, depression or sleep issues, the previous records indicated he was in the ASAP program for symptoms of a larger issue, untreated PTSD. According to a study conducted at Walter Reed Medical Center, "Over two million service members have deployed to Iraq or Afghanistan since 2001, and these deployments have been strongly associated with an increased risk of mental health problems." ("PTSD Treatment for Soldiers After Combat Deployment: Low Utilization of Mental Healthcare and Reasons for Dropout," August 2014). i. The FSM did sustain a closed head injury. The injury, in and of itself, did not affect his ability to perform his job at top performance. j. The FSM was under stress during the time indicated. He denied intentions of self-inflicted harm or intentions of suicide. k. She has no opinion/response. l. She was not given access to photos and most of the CID report information was redacted. She does not confirm or deny the findings of what was specifically found in the room. According to the autopsy, his death was ruled "accidental." The Army made the determination, completely absolving themselves from any responsibility. In that case, the governing "authority" surmised that 21 years leading up to the FSM's "conscious decision" had only to do with life after last formation, not war, not deployments, not work stress. She officially issues a strong rebuttal to the contrary. m. That prognosis would only have been given had mental health treatment been established and administered and required by his unit. n. She refers the Board to the aforementioned medical studies for further evaluation results as to why "available" records lack this information. o. As for the injuries mentioned here, (a) his closed head injury is confirmed, (b) he continued to suffer from insomnia and took Lunesta until the prescription ran out, and (c) he required a hip replacement. As indicated in her original communication, military doctors tried twice (unsuccessfully) to remove the titanium hardware from his right femur area. He was in excruciating pain. The equipment manufacturer indicated that the screws were not compatible with the hardware installed; a medical oversight (d) is confirmed. Explained in detail above (line item 7c) and (e) confirmed, his Bri---'s condition was being managed. She was at the top of the kidney donor list through the Porter Adventist Hospital, Denver, CO. She had gone for the first appointment to donate one of her kidneys to her. Bri---'s passing was sudden. The FSM was well aware of this fact and Bri---'s prognosis was favorable upon receiving the kidney. He was excited and could not wait to retire and reunite their family. p. She vehemently and categorically denies the theory of "suicide" in the FSM's case given the items she has discussed . They had much to look forward to upon his retirement. The CID drew their own conclusion based on their analysis of the case. The Georgia medical examiner's autopsy findings were a factor. Further, her daughter's passing was not due to lupus or renal failure. It was due to the fact that the hospital missed symptoms of a stroke brought on by being instructed [by an emergency room physician at Memorial North Hospital, Colorado Springs] to double up on the blood thinner Coumadin. The FSM did not commit suicide thinking that his daughter was going to die. No one was aware of what was coming with Bri---. He knew that there were things to look forward to. Bri---'s passing was 100% unexpected and preventable. Had the circumstances by which death was brought on been a self-inflicted gunshot wound to the head, that is a clear indication that one fully intended to end one's life. In the FSM's case, it is clearly indicated by the medical examiner that "huffing" is not a common method of suicide. It is a way by which people are trying to "numb the pain." The ARBA psychiatrist theorized that the FSM's death was brought on by "closed head injury, chronic pain, social isolation and depression in combination with his young step daughter's terminal illness" as the reasons for alleged "suicide." This opinion and suggested post-mortem diagnosis completely exempts even one day of combat in the Army over 21 years. With a 21B and subsequently an 11B (Infantry) MOS, that is an unquantifiable conclusion. The psychiatrist is only considering the recent events that led up to his death and does not give any validity to the deployments. Given the fact that the psychiatrist indicated they didn't have "available" records that specifically diagnose "PTSD," (spanned the last 21 years of this Soldier's military career) there is no way to base such a strong case on "suicide." The FSM was the "boots on the ground" Infantry Soldier, who was involved in dangerous missions in towns such as Mosul and Kirkuk. Does the psychiatrist know what that feels like? Is there any certain number of combat stressors that meet standards to be classified as "inclusive" in a PTSD diagnosis? These are mental obstacles that civilians don't understand. q. In conclusion, the psychiatrist's findings are only based on personal issues and purposely omit any PTSD diagnosis that is likely, given the FSM's MOS. According to a study by an individual at Yale Law School, there has been a history of veterans being given "bad paper" discharges due to similar reasons that she presents to the Board today ("In Need of Correction: How the ABMCR is Failing Veterans With PTSD," March 2014). Though former Secretary of Defense paved the way for improvements in the area of the ABCMR decisions, there are obviously still undissolved barriers to receiving fair consideration ("New Discharge Upgrades and PTSD," 3 September 2014). The VA had the same amount of information that was "available" to the ARBA and made a determination based on his life, overall; professional, personal. They gave careful consideration to factors that involved every facet of his life and made a fair and balanced decision that served the widow and orphans of this Soldier. The FSM served his country dutifully, his entire adult life. He earned the Bronze Star for Military Achievement during deployment. She cannot fully encompass his life by over-explaining his death. She knows that he did not commit suicide. That is her experience with him over 18 years. That is her lay opinion, but it matters. REFERENCES: 1. 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 2-6c states line of duty determinations must be supported by substantial evidence and by a greater weight of evidence than supports any different conclusion. The evidence contained in the investigation must establish a degree of certainty so that a reasonable person is convinced of the truth or falseness of a fact, considering all direct evidence, that is, evidence based on actual knowledge or observation of witnesses; and/or all indirect evidence, that is, facts or statements from which reasonable inferences, deductions, and conclusions may be drawn to establish an unobserved fact, knowledge, or state of mind. b. Glossary Section II defines simple negligence as the failure to exercise that degree of care, which a similarly-situated person of ordinary prudence usually takes in the same or similar circumstances, taking into consideration the age, maturity of judgment, experience, education, and training of the Soldier. c. Glossary Section II defines willful negligence as a conscious and intentional omission of the proper degree of care that a reasonably careful person would exercise under the same or similar circumstances. Willful negligence is a degree of carelessness greater than simple negligence. Willfulness may be expressed by direct evidence of a member’s conduct and will be presumed when the member’s conduct demonstrates a gross, reckless, wanton, or deliberate disregard for the foreseeable consequences of an act or failure to act. d. Appendix B of this regulation states in every formal investigation the purpose is to find out whether there is evidence of intentional misconduct or willful negligence that is substantial and of a greater weight than the presumption of ILD. To arrive at such decisions, several basic rules apply to various situations. e. Appendix B, B-1, Rule 1, states injury, disease, or death directly caused by the individual’s misconduct or willful negligence is NLD. It is due to misconduct. This is a general rule and must be considered in every case where there might have been misconduct or willful negligence. Generally, two issues must be resolved when a Soldier is injured, becomes ill, contracts a disease, or dies: (1) whether the injury, disease, or death was incurred or aggravated in line of duty; and (2) whether it was due to misconduct. f. Appendix B, B-3 Rule 3 states injury, disease, or death that results in incapacitation because of the abuse of alcohol and other drugs is "Not in Line - Due to Own 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. The fact 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. 2. On 3 September 2014 the Secretary of Defense directed the Service Discharge Review Boards and Service Boards for Correction of Military/Naval Records to carefully consider newly revised PTSD diagnostic criteria, detailed medical considerations and mitigating factors when taking action on applications from former service members administratively discharged under other than honorable conditions and who have been diagnosed with PTSD by a competent mental health professional representing a civilian healthcare provider in order to determine if it would be appropriate to upgrade the characterization of the applicant's service. DISCUSSION: 1. There is no more devastating loss than the death of a military spouse. Losing a spouse to death is a disruption in the natural law and order of life. It is a heartbreak like no other and spousal grief is different from other losses—it is intensified, lengthened, and is often devastating to our military families. In that respect, the Board sympathizes with the applicant and regrets the death of her husband. 2. The FSM entered active duty in October 1990. He served as a combat engineer in multiple assignments, including Korea, Bosnia, Southwest Asia, and Iraq. On 7 July 2010, the FSM failed to show up for physical training. One of his senior NCOs went to his apartment and found him unresponsive. Emergency Medical Services were called. The FSM was found with empty bottles of oxycodone and Percocet and empty cans of air. He was pronounced dead. 3. Detectives from the Columbus Police Department found him in his room on his bed with negative vital signs for life. The detectives found five cans of compressed air in his room with one next to his body, one on the bed, and three on a bedside table. Prescription Oxycontin and Percocet were discovered in the room and inside the FSM's car. The Columbus Police Department determined the manner of death was accidental as a result of huffing compressed air and the cause of death was likely due to increased CFCs, which may have caused a disruption in the heart rhythm. CID investigated his death and determined that based on the evidence (investigation and autopsy) the cause of death was huffing. 4. An autopsy conducted by a medical examiner from the Georgia Bureau of Investigation disclosed no trauma other than a superficial abrasion to the FSM's leg. The medical examiner stated at that time everything was pointing to accidental as a manner of death. The State of Georgia issued a Death Certificate listing the immediate cause of death as "Toxic Effects of Diflouroethane." An autopsy was conducted and the Medical Examiner determined the manner of death was "Accident." 5. In determining whether the death was/was not in line of duty, an Army IO was appointed to investigate the circumstances of the death. The IO determined the FSM died on 7 July 2010 after sustaining an accidental death from huffing compressed air. The medical diagnosis was that of toxic effects of difluoroethane. The IO remarked that the totality of the events leading to the FSM's death indicated his death was caused due to his conscious decision to inhale the compressed air. This showed blatant as well as willful misconduct on the FSM's part. The IO ruled the FSM's death was "Not in Line of Duty - Due to Own Misconduct." The appointing authority concurred and the final approving authority approved the IO's findings of "Not in Line of Duty - Due to Own Misconduct" on behalf of the Secretary of the Army. A military attorney completed a legal review and opined that the evidence supported the findings and the findings supported the recommendation. 6. In December 2010, the Casualty and Mortuary Affairs Branch at HRC made a determination that the FSM died on 7 July 2010 as a result of toxic effects of difluoroethane which was "Not in Line of Duty - Due to Own Misconduct" at the time of death. The Army issued a final DD Form 1300 indicating the type of casualty as "Non-hostile" and the category of casualty as "Accident." A Report of Casualty was issued by the Army. 7. Investigating cases of death within military jurisdiction falls in the hands of law enforcement official of the Armed Forces (such as Military Police/CID, Naval Criminal Investigative Service, etc). Determining the cause of death of a service member falls in the hands of medical professionals such as the Medical Examiner. The role of the Army in cases of a Soldier's death is to determine if the death is or is not in the line of duty. In that regard, while the applicant's belief that the FSM did not commit suicide is noted, it must be emphasized here that the Board is bound by the findings of the medical examiner and law enforcement officials and is without authority to change the cause of death, absent medical evidence of a different cause. 8. A line of duty determination is essential for protecting the interest of both the individual concerned and the U.S. Government where service is interrupted by injury, disease, or death. A line of duty determination is an administrative tool for determining a member’s duty status at the time an injury, illness, disability, or death is incurred. On the basis of the line of duty determination, the member may be entitled to benefits administered by the Army, or exposed to liabilities. The key is the nexus between the injury, illness, disability, or death and the member’s duty status 9. Contrary to the applicant's contention that the VA "determined PTSD as the leading cause of death and indicated a 'service-connected' status as of March 2015," a review of the VA documents provided by the applicant does not indicate that the VA determined the FSM had PTSD nor does it indicate that the claimed PTSD was the cause of the service member’s death. 10. Contrary to the applicant's contention that the FSM was diagnosed with PTSD, although he may have displayed some of the symptoms of PTSD that could have been attributed to his military service as well his family affairs, there is no evidence that PTSD affected his ability to perform the duties required of his grade and military specialty. A command-directed mental status evaluation, dated 8 April 2009, indicated that no psychiatric illness was found. During this exam, the FSM denied irritability, anxiety, depression and sleep issues. In fact, the applicant herself talks about the FSM becoming a Senior Bradley Instructor and that he was "the only enlisted Soldier to have achieved that position/status and he worked very hard to learn every aspect of the Bradley Fighting Vehicle." 11. Similar to the thorough review of the FSM's entire career conducted by the VA to determine his service-connected conditions, an ARBA psychiatrist conducted a thorough review of the FSM's records. The psychiatrist did, in fact, consider all available records in reaching the advisory opinion stated here. 12. On 3 September 2014 the Secretary of Defense directed the Service Discharge Review Boards and Service Boards for Correction of Military/Naval Records to carefully consider newly revised PTSD criteria in cases where an applicant had been administratively discharged under other than honorable conditions. The FSM died while on active duty. He was not discharged under other than honorable conditions. As such, this case does not fall under the review criteria outlined in the Secretary of Defense's instructions to this Board. 13. While the FSM's death is tragic, the available medical and forensic evidence does not show that the findings of the Medical Examiner in were in error. Likewise, the evidence does not show error in the findings of law enforcement (Columbus Police or CID). He may have had symptoms of PTSD but those symptoms did not cause his death. 14. By regulation, wrongfully drug-induced actions that cause injury, disease, or death are considered misconduct, and the investigation clearly established misconduct. The FSM's death was found to be "Not in Line of Duty - Due to Own Misconduct," and this finding is supported by the evidence. //NOTHING FOLLOWS// ABCMR Record of Proceedings AR20150000953 Enclosure 1 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS ABCMR Record of Proceedings (cont) AR20160006018 2 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 1 ABCMR Record of Proceedings (cont) AR20160006018 19 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 2