IN THE CASE OF: BOARD DATE: 21 October 2021 DOCKET NUMBER: AR20200010155 APPLICANT REQUESTS: a favorable Line of Duty (LOD) determination. APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: * DD Form 149 (Application for Correction of Military Record) * self-authored statement * U.S. Army Human Resources Command (HRC) LOD Decision * Standard Form (SF) 600 (Chronological Record of Medical Care) * LOD Behavioral Health Evaluation dated 5 October 2017 * Excerpt from Army Regulation (AR) 600-8-4 (Line of Duty Policy, Procedures, and Investigations) * three letters of support FACTS: 1. The applicant did not file within the three-year time frame provided in Title 10, United States Code, section 1552(b); however, the Army Board for Correction of Military Records (ABCMR) 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 he respectfully requests a reevaluation of his LOD appeal which was initially conducted by HRC. It initially read “Not in Line of Duty, Not Due to Own Misconduct,” and was changed to read “Not in Line of Duty, Existed Prior to Service (EPTS), Not Service Aggravated.” He strongly feels that applicable regulations at the time of his suicide attempt and his Behavioral Health Evaluation support that his LOD should have been “In Line of Duty”. a. The letter from HRC states that his history of depression and subsequent hospitalization dated back to 2013 and his temporary profile for depression terminated in November 2013, after significant improvement. His SF 600 indicated his profile had been terminated or downgraded to a P2; however, Dr., Behavioral Health Coordinator, knew he was still on antidepressants which resulted in him being removed from flight status. The applicant was unable to return to flight status until he was stable without medication and he worked with the physicians to manage his condition. He had many ups and downs with the depression, but in May of 2016, after becoming stable with Lexapro, he requested to come off of the medication with the Department of Veterans Affairs (VA) physician. It was the only mediation that kept him from regaining his flight status. The depression returned 3 months later and instead of placing him back on antidepressants, the physician wanted to observe him before prescribing Lexapro, 10 mg. b. The applicant admitted himself to the VA hospital in in September 2016 after he realized the Lexapro, 10 mg, was not helping with his depression. His medication was increased to 20 mg during his short hospital stay, but did not provide an improvement in his depression. The HRC letter further stated there was no evidence that he informed his chain of command of his hospitalization and that he was not placed on a temporary psychiatric profile. Dr. documented on his SF 600, on three different occasions between 5 October 2016 and 20 October 2016, that he was on a temporary S3 (Psychiatric/Stability) profile. She was also responsible for conducting his LOD Behavioral Health Evaluation following his suicide attempt. She documented in the evaluation that his chronic mental health disorder, increased depression, negative and irrational thinking, reintroduction to antidepressant treatment, and suicidal ideation with attempt, rendered the applicant of unsound mind and therefore, it was considered in the line of duty. There was no evidence to conclude his condition existed prior to service. c. The applicant references AR 600-8-4 and further noted that the regulation was applicable at the time of his LOD investigation and by regulation, she was the only person in the medical command qualified to conduct his evaluation. The National Guard Bureau (NGB) and HRC both appeared to disagree with her findings. The applicant requests that the behavioral health evaluation conducted by Dr. be reviewed in consideration of the LOD, in addition to the written statements from his commander, military technical supervisor, and his retired command chief warrant officer. 3. The applicant provides: a. An HRC LOD decision, dated 7 January 2020, indicated that after a thorough administrative review, a determination was made of “Not in Line Duty-Not Due to Own Misconduct,” would be changed to read “Not in Line of Duty-EPTS-Not Service Aggravated.” According to the applicant’s case file, he had a history of depression and subsequent hospitalization dated back to at least 2013. He was placed on a temporary profile following an inpatient hospitalization in 2013 and the profile was also terminated in 2013. He was never placed on profile for the condition again; however, his VA records indicted he continued to be seen for depression although he was stable on medication. In the spring of 2016 he requested to come off the mediation because he was feeling much better; however, his symptoms worsened and he was admitted by the VA inpatient facility at the end of September for worsening symptoms and suicidal ideations. There was no evidence he informed his chain of command and he was not placed on a temporary psychiatric profile following his hospitalization, which suggests he did not report the incident. On 23 October 2016, while on IDT orders, he attempted suicide by driving his car into a guardrail. There was no evidence presented that his military duties precipitated or aggravated his depressive symptoms which resulted in his suicide attempt. b. An SF 600 contained several entries from 4 October 2016 to 28 November 2016 which outlined the applicant’s follow-up visits with Dr. . The applicant indicated the document noted his temporary S3 profile on three separate occasions; however, it was annotated numerous times: * 5 October 2016 * 17 October 2016 * 18 October 2016 * 20 October 2016 * 9 November 2016 * 10 November 2016 * 15 November 2016 * 21 November 2016 * 28 November 2016 c. A LOD Behavioral Health Evaluation, dated 5 October 2017, included a summary of data based on several sources of information in forming the opinion provided. Dr. concluded that the applicant freely admitted that he attempted suicide when he veered off the highway on his way to IDT. Three factors significantly contributed to the incident which include a long history of depression with mental instability, a lack of judgement at discontinuing psychotropic medication for chronical mental health disorder, and increased depression after resuming medication. She further noted, AR 600-8-4, Chapter 4-11, states that "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 applicant’s chronic mental health disorder, increased depression, negative and irrational thinking, reintroduction to antidepressant treatment, and suicide ideation with attempt, rendered him of unsound mind, and therefore it was in the line of duty. There was no evidence to conclude that these conditions existed prior to service. There was no indication that substances played a role in his suicide. d. An excerpt from AR 600-8-4 wherein the applicant highlighted paragraph 4-11 (Mental responsibility, emotional disorders, suicide, and suicide attempts), referenced by Dr. . e. Three letters of support from members of the applicant unit: (1) Chief Warrant Officer Five (CW5), Retired, wrote in his statement dated 12 April 2020, he has known the applicant since September, 1992 and they served in various capacities together through his retirement in July 2018. It is his opinion that the National Guard did not do well with behavioral health issues due to very unclear support and funding for non-Title 32 Soldiers, as well as convoluted guidance as to when the non-Title 32 Soldiers are “on duty.” If the applicant was removed from his temporary profile or not given a permanent profile after 6 months, it was clearly a clerical error on the part of the unit or state. His treatment was still ongoing. He can personally attest to the fact that the chain of command was aware of the applicant’s ongoing mental health challenges. Major General (MG) , The Adjutant General (TAG) personally requested the applicant and his wife speak at a senior staff meeting to encourage those that may be afraid to come forward in fear of losing their positions. He also personally noted and was in communication with the applicant’s commander, administrative officer, facility commander, flight surgeon, and the TAG following his suicide attempt in 2016. The incident was reported and he believes that his condition was aggravated by military service. (2) A statement from CW5 , dated 22 April 2020, indicated he had known the applicant since November 2001. He reiterates much of what was referenced above by CW5 (Ret) . He further adds that he was also personally in communication with the applicant’s commander, administrative officer, facility commander, flight surgeon, and the TAG following his suicide attempt in 2016. The letters are both similar in context. (3) A letter from Command Sergeant Major (CSM) Retired, , dated 27 April 2020, requesting a favorable review of the applicant’s LOD appeal. He addressed some concerns noted in the HRC decision of the applicant’s LOD investigation and he believed that the suicide attempt happened while on duty and that his duty requirements, along with the suspension of medication (with physician approval), aggravated the applicant’s depressive condition and led to a second suicide attempt in 2016. He can also attest to the chain of command being notified of the applicant’s hospitalization at the end of September 2016. The immediate chain of command and the brigade chain of command were informed with a Commander’s Critical Incident Report (CCIR) the morning following the applicant’s admittance. The applicant was his top performing first sergeant (1SG) and on track to attend the Sergeants Major Academy and replace him as the Battalion Command Sergeant Major. 4. A review of the applicant’s service record shows: a. He enlisted in the Regular Army on 22 October 1982. b. He served in Korea from 1 September 1984 to 1 October 1985. c. He was honorably released from active duty on 20 October 1985. His DD Form 214 (Certificate of Release or Discharge from Active Duty) shows he completed 2 years, 11 months, and 29 days of active service. He was assigned separation code LBK and the narrative reason for separation listed as “Expiration Term of Service.” d. He enlisted in the West Virginia Army National Guard (WVARNG) on 21 March 1986. e. He served on three honorable periods of active service: * 3 October 1988 to 20 January 1989 * 21 November 1990 to 29 May 1992 with service in Southwest Asia from 7 January 1991 to 4 May 1991 * 7 July 2006 to 24 October 2006 with service in Peru from 11 July 2006 to 7 October 2006 f. A Physical Profile Record, dated 24 February 2017, shows the applicant was given a permanent physical profile rating of “3” for psychiatric stability due to depressive disorder. Block 27 (Medical Instructions to Unit Commander) further noted the applicant was currently in the Physical Evaluation Board (PEB) process. g. An SF 600, dated 24 February 2017, indicated the applicant was not administratively fit for retention based upon the Standards of Medical Fitness (AR 40- 501), Chapter 3, paragraph 33. The applicant should be processed for separation. h. A DA Form 2173 (Statement of Medical Examination and Duty Status), dated 24 August 2017, indicated the applicant was injured when he hit a guard rail trying to commit suicide in route to IDT. The applicant has a history of depression. A formal investigation was required and the injury was considered to have been incurred in the line of duty. i. On 11 September 2017, the WVARNG State Surgeon evaluated and determined the applicant was not retainable in accordance with AR 40-501, Chapter 3. The applicant would undergo separation proceedings. j. On 11 September 2017, the applicant’s immediate commander notified the applicant of his intent to separate him under the provisions of AR 40-501, Chapter 3. On 25 October 2017, the applicant acknowledged the following: * his condition was not incurred in Line of Duty * he waived his right to a non-duty related (NDR) PEB * he has 15 or more creditable years and he elects to transfer to the Retired Reserve and begin to draw retirement pay at the age of 60 k. On 25 October 2017, the applicant waived consultation with legal counsel; however, requested copies of all documents. The applicant further acknowledged: * he had 5 or more years of total active and/or reserve service and waived his right to a hearing before an administrative separation board * waived his right to submit written statements l. The immediate commander initiated separation action against the applicant because he was medically unfit for retention. The commander recommended the applicant receive an honorable characterization of service. m. Orders 306-610, dated 2 November 2017, discharged the applicant from the Army National Guard effective 24 November 2017. Orders 331-600, dated 27 November 2017, amended Orders 306-610 to assign the applicant to The Retired Reserve. n. On 24 November 2017, the applicant was honorably released from the WVARNG and transferred to The Retired Reserve. The NGB Form 22 (National Guard Report of Separation and Record of Service) shows he completed 31 years, 8 months, and 4 days of net service for the period. o. On 2 March 2018, the National Guard Bureau’s Surgeon noted that based on his review of the applicant’s LOD investigation, he was unable to make a medical assessment due to lack of required documentation. He was unable to render a decision on the diagnosis/finding of major depressive disorder, recurrent, mild and suicidal ideations because there was no documentation as to the cause of the depression and the suicide attempt was a symptom of the depression. Suicide attempt itself was not a diagnosis and therefore, further documentation was required about the depression and its cause. The depression would have to be associated with the military service for an “in-line of duty (ILD)” finding. 5. On 7 September 2021, the HRC Deputy, Adjutant General, rendered an advisory opinion in the processing of this case. He opined there was clear and unmistakable evidence that the applicant’s major depressive disorder existed prior to service in October 2016, in part, as evidenced by his hospitalizations in 2013 and September 2016 and his self-declared history of depression dating back to 2013. According to Army Regulation 600-8-4, Line of Duty Policy, Procedures, and Investigations, paragraph 4- 12(c), a Soldier may not be held for his actions if he was unable to comprehend the nature and quality of his actions as a result of mental defect or disease. However, it also states that this rule does not apply if the mental defect or disease existed prior to service and was not aggravated by military service. In the applicant’s case, evidence shows his condition of depression with suicidal ideation existed prior to service, and there is no evidence that his depression and subsequent suicide attempt were incurred or aggravated by military service at the time of the incident. It was also incumbent upon the applicant to report conditions to their unit which the applicant failed to do which was borderline negligence for a senior non-commissioned officer in his position. 6. On 13 September 2021, the advisory opinion was forwarded to the applicant for acknowledgment and/or response. On 20 September 2021, the applicant provided an email response and three Physical Profiles for psychiatric stability dated 1 September 2013, 5 November 2013, and 24 February 2017. He wanted to address five key areas in his email. a. On 5 November 2013, his profile was extended from an existing profile, dated 1 September 2013 (see attached profiles). Part of his stabilization plan after his initial hospitalization was counseling and medication management, those services were conducted by the VA to ensure that he remained stable. He will continue to receive medication and management for the rest of his life. b. On 27 April 2020, Retired CSM wrote a memorandum that confirmed his immediate chain of command was notified of his hospitalization with a CCIR following the morning of his admittance. c. He was discharged from the VA inpatient facility on 30 September 2016 and 3 working days after his hospitalization, he was placed on a temporary S3 profile on 5 October 2016. According to the SF 600, he was on temporary S3 profile the day of his suicide attempt. Additionally, on 24 February 2017, an S3 profile appeared for his depressive disorder. Block 22 referred to his total days of temporary profile in the last 12 months, 147 days and in the past 24 months, 149 days. That date correlates back to the day he was released from the VA hospital on 30 September 2016. d. He does not believe AR 600-8-24, published 28 months after his discharge, should determine the outcome of his LOD. AR 600-8-4, dated 4 September 2008, was used in both of his LOD investigations and his behavioral health evaluation. e. There is nothing in his medical records that shows his depression with suicidal ideations existed before military service or that it happened between periods of active service. In his behavioral health evaluation, Dr. stated, “there is no evidence to conclude that the condition existed prior to service.” 7. By regulation (AR 600-8-4), the worsening of a pre-existing medical condition over and above the natural progression of the condition as a direct result of military duty is considered an aggravated condition. Commanders must initiate and complete LOD investigations, despite a presumption of Not In the Line of Duty, which can only be determined with a formal LOD investigation. 8. MEDICAL REVIEW: The Army Review Board Agency (ARBA) Medical Advisor reviewed the supporting documents and the applicant’s military service records. The Armed Forces Health Longitudinal Technology Application (AHLTA) & Health Artifacts Image Solutions (HAIMS) was not in use at the time of his service. His hardcopy military medical record was not available for review. A review of WVNG LOD evaluation and other supporting documents indicated the applicant had become severely depressed after stopping his medication (under doctor’s care). He was working as a federal military technician as part of his NG job. Prior to his suicide attempt he was psychiatrically hospitalized due to suicidal ideation and missing work. While his temporary psychiatric profile was allowed to expire, he was consistently in treatment to address his suicidal ideation and depressed mood. Statements from his supervisors indicate he struggled with administrative workload which exacerbated his depression and anxiety. A review of JLV indicates the applicant was evaluated on 21 May 2013 due to suicidal ideation. He was brought to the emergency room by his wife and NG supervisor. The applicant was involuntarily committed in March 2013 for 12 days due to symptoms associated with an acute psychotic episode. He was prescribed Remeron and Risperdal while hospitalized. He was stable on these medications until his regular psychiatrist tapered the Risperdal to start him on Buspar. He reported symptoms of depression and guilt over addition to pornography. He reported some past delusional thoughts and felt increased responsibility since his promotion to 1SG in December 2012. He denied symptoms of mania or PTSD. He served on active duty from 1982 to 1985 and then joined the National Guard and works as a technical inspector. He reported serving in Desert Storm in a combat zone. He was diagnosed with Major Depressive Disorder (MDD) with psychotic features and Generalized Anxiety Disorder. On 12 Jan 2015, he reported a positive response to medications with a stable mood and reduction in anxiety. His provider noted that MDD and Panic Disorder were stable with treatment. He also noted a diagnosis of Alcohol Use Disorder. He was psychiatrically hospitalized from 28-30 Sept 2016 due to suicidal ideation and increased depressed mood. His most recent behavioral health appointment was on 23 Jul 2021. His treating diagnosis was MDD and he was stable on his medications. He completed Compensation and Pension examinations in July 2021 but does not currently have a service connected disability rating. The applicant’s suicide attempt was a result of his MDD. His suicidal ideation and depression worsened while attempting to switch medications to be able to return to flight status. MDD was exacerbated by occupational stress he experienced including difficulty coping with increased administrative workload and associated anxiety. Consistent with AR 600-8-4, 4-11, the applicant’s suicide attempt was line of duty and there is no evidence that his psychiatric conditions existed prior to service and his symptoms were exacerbated by military service. In addition, the state surgeon indicates on 24 Feb 2017 that the applicant did not meet retention standards. He should have been referred to the MEB to determine disability rating for his MDD. Recommend his case be referred to the Integrated Disability Evaluation System office for their consideration. BOARD DISCUSSION: 1. The applicant's request for a personal appearance was carefully considered. In this case, the evidence of record was sufficient to render a fair and equitable decision. As a result, a personal appearance before the Board is not necessary to serve the interest of equity and justice in this case. 2. After reviewing the application, all supporting documents, and the evidence found within the military record, the Board determined that relief was warranted. The Board carefully considered applicant’s contentions, military record, and regulatory guidance. The Board reviewed and concurred with the Human Resource Command advisory finding sufficient evidence for referral to the Integrated Disability Evaluation System for evaluation. Based on the preponderance of evidence available for review, the Board determined the evidence presented sufficient to warrant a recommendation for relief. BOARD VOTE: Mbr 1 Mbr 2 Mbr 3 :X :X :X GRANT FULL RELIEF : : : GRANT PARTIAL RELIEF : : : DENY APPLICATION 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 referring him to the Integrated Disability Evaluation System Integrated Disability Evaluation System for their consideration. 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. Title 10, United States 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 ABCMR to excuse an applicant's failure to timely file within the 3 year statute of limitations if the Army Board for Correction of Military Records (ABCMR) determines it would be in the interest of justice to do so. 2. Army Regulation 600-8-4 (Line of Duty Policy, Procedures, and Investigations) in effect at the time, prescribes policies and procedures for investigating the circumstances of disease, injury, or death of a Soldier providing standards and considerations used in determining LOD status. a. A formal LOD investigation is a detailed investigation that normally begins with DA Form 2173 (Statement of Medical Examination and Duty Status) completed by the medical treatment facility and annotated by the unit commander as requiring a formal LOD investigation. The appointing authority, on receipt of the DA Form 2173, appoints an investigating officer who completes the DD Form 261 (Report of Investigation Line of Duty and Misconduct Status) appends appropriate statements and other documentation to support the determination, which is submitted to the General Court Martial Convening Authority for approval. b. The worsening of a pre-existing medical condition over and above the natural progression of the condition as a direct result of military duty is considered an aggravated condition. Commanders must initiate and complete LOD investigations, despite a presumption of Not In the Line of Duty, which can only be determined with a formal LOD investigation. c. An injury, disease, or death is presumed to be in LOD unless refuted by substantial evidence contained in the investigation. LOD 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. d. The term "EPTS" is added to a medical diagnosis. It shows that there is substantial evidence that the disease or injury, or underlying condition existed before military service or it happened between periods of active service. Included in this category are chronic diseases with an incubation period that clearly precludes a determination that it started during short tours of authorized training or duty. The doctor, during examination and treatment of the Soldier, usually determines an EPTS condition. The doctor annotates the Soldier’s medical records as to whether the condition existed prior to service. If an LD determination is required, information from the medical records will be used to support a determination that an EPTS condition was or was not aggravated by military service. If an EPTS condition was aggravated by military service, the determination will be "in LD." If an EPTS condition is not aggravated by military service, the determination will be "not in LD—not due to own misconduct." e. For mental responsibility, emotional disorders, suicide, and suicide attempts: (1) 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 EPTS. (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 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. (3) If the Soldier is found mentally unsound, the mental health officer should determine whether the soldier’s mental condition was an EPTS condition aggravated by Service or was due to the soldier’s own misconduct. Those conditions occurring during the first six months of AD may be considered as EPTS, depending on history. (4) In cases of suicide or attempted suicide during AWOL, mental soundness at the inception of the absence must also be determined. (5) 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. //NOTHING FOLLOWS// ABCMR Record of Proceedings (cont) AR20200010155 1 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1