ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS IN THE CASE OF: BOARD DATE: 14 May 2019 DOCKET NUMBER: AR20160018058 APPLICANT REQUESTS: * an honorable characterization discharge * a change to the Former Service Members (FSM) Line of Duty findings from “Not In Line of Duty – due to own misconduct” to “In Line of Duty” APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: * AHRC Form 1569 (Official replacement for DD Form 214) * DD Form 293 (Application for the Review of Discharge from The Armed Forces of The United States) * DD Form 1300 (Report of Casualty) * Line of Duty Determination memorandum dated 1 August 2012 * Mental disorders schedule of ratings * DA Form 2173 (Statement of Medical Examination and Duty Status) * Line of Duty Determination Overturn memorandum dated 1 August 2012 * DD Form 261 (Report of Investigation Line of Duty and Misconduct Status) * Legal Review of Line of Duty Investigation memorandum dated 8 August 2012 and 21 September 2012 * Request for Legal Opinion memorandum dated 6 August 2012 * DA Form 1574 (Report of Proceedings by Investigating Officer/Board of Officers) * Investigator Appointment memorandum dated 13 February 2012 * 15-6 Investigation Executive Summary dated 23 April 2012 * VA Form 21-4138 (Statement in Support of Claim) FACTS: 1. The applicant did not file within the three year time frame provided in Title 10, United States Code (USC), section 1552 (b); however, the Army Board for Correction of Military Records conducted a substantive review of this case and determined it is in the interest of justice to excuse the applicant's failure to timely file. 2. The applicant states the cause of death should not be due to willful misconduct. Her husband served multiple combat tours and suffered several combat injuries. He was 1. still on active duty when he developed severe Post Traumatic Stress Disorder (PTSD) and Traumatic Brain Injury (TBI), which was diagnosed and treated, while he was in the Army. The Veteran Administration (VA) has defined symptoms of PTSD as gross impairment in thought processes, grossly inappropriate behavior, and persistent danger of hurting yourself. 3. A review of the applicant’s service records shows: a. He enlisted in the Regular Army on 27 December 2005 and reenlisted on 4 February 2009. b. He served in Afghanistan from 2 August 2010 to 23 June 2011 and Iraq from 7 September 2007 to 22 October 2008. c. On 8 February 2012, the FSM was found deceased in his home. d. A DA Form 2173 dated 8 February 2012 shows injury was “In Line Of Duty”. e. On 13 February 2012, an officer was appointed to investigate the facts and circumstances surrounding the death of FSM. f. A LOD dated 29 February 2012, shows the approval authority findings as “In Line of Duty. g. A state of Colorado Certificate of Death dated 20 March 2012, states the cause of death was Inhaling Difluoroethane (CRC Dust Off) h. On 6 April 2012, a Report of Casualty was prepared. It states the circumstances surrounding the death of “SGT WD was an Accident from inhaling Difluoroethane, per Certificate of Death”. i. On 23 April 2012, a 15-6 Investigation Executive Summary for the death of SGT WD was submitted. See attached. j. On 1 August 2012, the Casualty and Mortuary Affairs Operations Center overturned the LOD decision and determined SGT XX died as a result of Difluoroethane Intoxication and was “Not in Line of Duty – Due to Own Misconduct”. k. Two legal reviews on the LOD investigation dated 8 August 2012 and 21 September 2012, states “Not in the Line of Duty – Due to Own Misconduct). See attached. 4. The Army Review Boards Agency senior medical advisor reviewed his case and rendered an advisory opinion on 28 September 2017. He reviewed the record for 1. medical condition(s) not considered during medical separation for LOD. The medical advisor stated: a. The available records did not show a diagnosis of PTSD. They did show a history of concussion; however, the concussions were not documented in available records by authorized medical providers at the time of their occurrence. The described symptoms in available records did not describe impairments of judgment from any of his conditions. His peak period of trouble seemed to be during his first marriage during a part of which he was treated in Family Advocacy Program (FAP) and Alcohol Substance Abuse (ASAP). The records showed that the applicant may have attempted to relieve foot pain by using an inhalant. The inhalant was identified as the cause of his death. No account described him as trying to relieve a psychological symptoms. b. The applicant's medical conditions were duly considered during medical separation processing. c. A review of the available documentation found insufficient evidence of a medical disability or condition which would support a change to the finding that he did not die in the line of duty. 5. Army Regulation (AR) 600-8-4 (Line of Duty Policy Procedures, and Investigations), Appendix B, Rule 3 states, “Injury, disease, or death that results in incapacitation because of the abuse of alcohol and other drugs is not in line of duty. 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.” BOARD DISCUSSION: After reviewing the application and all evidence, to include the DoD guidance on liberal consideration when reviewing discharge upgrade requests, the Board determined there is insufficient evidence to grant relief. The applicant’s contentions, the FSM’s medical concerns, and the medical advisory opinion were carefully considered. Based upon r review of all documentary evidence, the Board found the FSM died as a result of using a substance; thus, the Board agreed with the finding of the LOD investigation that it was not in the line of duty. He already has an honorable characterization, so the Board concluded there was no error or injustice which warrants making a correction to the record. BOARD VOTE: Mbr 1 Mbr 2 Mbr 3 : : : GRANT FULL RELIEF : : : GRANT PARTIAL RELIEF : : : GRANT FORMAL HEARING X X X DENY APPLICATION 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. 5/15/2019 X CHAIRPERSON Signed by: 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. REFERENCES: 1. Army Regulation (AR) 600-8-4 (Line of Duty Policy, Procedures, and Investigations) Appx. B, Rule 2, states that the “mere violation of military regulations, 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.” 2. AR 600-8-4, Rule 3 states, Injury, disease, or death that results in incapacitation because of the abuse of alcohol and other drugs is not in line of duty. It is due to misconduct. This rule applies to the effect of the drug on the soldier’s conduct, as well as to the physical effect on the soldier’s body. Any wrongfully drug-induced actions that cause injury, disease, or death are misconduct. That the soldier may have had a pre- existing physical condition that caused increased susceptibility to the effects of the drug does not excuse the misconduct.