IN THE CASE OF: BOARD DATE: 18 April 2023 DOCKET NUMBER: AR20220009970 APPLICANT REQUESTS: reconsideration of her previous request for correction of her late husband's records to show his death occurred in the line of duty (LOD). APPLICANT'S SUPPORTING DOCUMENT(S) CONSIDERED BY THE BOARD: * DD Form 149 (Application for Correction of Military Record under the Provisions of Title 10, U.S. Code, Section 1552) * Marriage License, 3 July 2008 * Certificate of Death, 31 July 2015 * Excerpts from Service Member's (SM) Medical Records FACTS: 1. Incorporated herein by reference are military records which were summarized in the previous consideration of the applicant's case by the Army Board for Correction of Military Records (ABCMR) in Docket Number AR2019 0009506 on 12 February 2021. 2. The applicant, the surviving spouse of a service member (SM) who died on active duty, states she wants her husband's records to show his death occurred in the LOD. She indicates he was suffering from post-traumatic stress disorder (PTSD). She further states: a. Given all of the information in the police report, there is a lack of evidence to prove that he did this to himself. There is proof that the police did not test his hands for gunshot residue, nor did the medical examiner. The female with him at the time of his death did not have her hands tested for gunshot residue. There is enough suspicious behavior and statements given by that person that show his case should have been investigated more. The female wasted approximately 15 minutes calling her mother two times before calling 911. All that is evident is that her husband was drunk in his own home, which is not illegal. b. There were no repercussions against the female who was an Army Reservist at the time. She had no clothing on from the waist down and her hair was wet. She made very strange statements, which are in the police report, indicating that "IF" she has gunpowder residue on her hands, it's because she moved the gun. She said she was afraid of guns and moved the firearm away from her when she checked on her husband. The drawing provided within the police report shows the gun was moved down to her husband's left foot; her husband was a right-handed shooter. The female is a left-handed shooter as shown in the pictures she found of her holding a firearm. One of the odd statements the female provided to the police without them asking was that she was a right-handed shooter. There are pictures of the female holding one of her husband's firearms in her left hand, showing she is a left-handed shooter. She questions how the female can be afraid of firearms when she is serving in the military, she went to the shooting range with her husband, and she obtained a permit to carry a weapon, even prior to her husband's death. c. It is her opinion that the diagram, which the police drew, would show the female could have possibly used the weapon and she set it down at his left hand after she shot him. If she moved it away from her, and if her husband had fired the gun, it would have landed by his right side, not down by his left foot. The police department and the Department of the Army spent very little time investigating. There are many holes in the female's story and actions, and the police department did a terrible job investigating. All that is evident is that her husband was drunk. Being drunk in one's own home is not a crime. Her husband NEVER played with firearms. The female said it was an accident. She doesn't think this female is very smart, but she outsmarted the police. d. She was given the Army Substance Abuse Program (ASAP) record showing proof that her husband went through the ASAP three times. Being twice the legal limit for blood alcohol content at his own home is not a crime. She can attest that her husband could function just fine because he has been getting drunk since he was 14 years old. His records reflect this, he himself stated it, and he was raised in that kind of environment. The Army failed her husband many times and she is very disappointed in the way the Army has handled his case. When presenting this information to retired detectives and firearms experts, they agree the handling of her husband's death was terrible and there are many holes in the female's story. Everyone just wants to keep brushing this case off, even though her husband's case is lacking proof that he definitively did this to himself. e. Her husband was an alcoholic and he had alcohol in his system when he passed away in his own home, but that is the only definitive information here. There is no proof that he did this to himself because the case was handled so poorly. 3. On 29 October 2005, the SM was awarded the Combat Action Badge for actively engaging or being engaged by the enemy on 15 September 2005. 4. The SM's Standard Form 600 (Chronological Record of Medical Care), 5 February 2007, shows the Mental Health Clinic diagnosed him with chronic PTSD.? 5. The applicant's marriage license, 3 July 2008, shows her marriage to the SM. 6. Headquarters, 1st Advise and Assist Brigade, 3d Infantry Division, Orders 115-022, 25 April 2010, promoted the SM to the rank/grade of staff sergeant/E-6 effective 1 May 2010. 7. On 17 November 2013, the SM was awarded the Bronze Star Medal for exceptionally meritorious service in support of Operation Enduring Freedom. His dedication to duty during combat operations in Afghanistan contributed to the overwhelming success of the command's mission during the period 4 November 2012 to 6 August 2013. 8. The SM's 11 Standard Forms 600 (Chronological Record of Medical Care) covering the period 21 June 2007 through 11 December 2014 noted his diagnosis of alcohol abuse/dependence (alcoholism). 9. The SM's DA Form 2166-8 (Noncommissioned (NCO) Officer Report) covering the period 16 January 2014 through 15 January 2015 shows in: a. Part I (Administrative Data), he was assigned to Headquarters and Headquarters Company, Warrior Transition Battalion, Fort Knox, KY; b. Part III (Duty Description), he was assigned the principle duty title of Squad Leader; c. Part IV (Army Values/Attributes/Skills/Actions), his rater marked "Yes" for all Army Values and commented: * gives maximum personal effort to the unit in order to accomplish the mission * performs well under pressure and stress * completes all tasks assigned to him in a timely and professional manner d. Part IV (Values/NCO Responsibilities), his rater marked "Excellence" in four of the five categories; e. Part V (Overall Performance and Potential), his rater rated his "Overall Potential for Promotion and/or Service in Positions of Greater Responsibility" as "Among the Best"; f. Part Vc (Senior Rater), his senior rater rated his "Overall Performance" as "Successful/1" and his "Overall Potential for Promotion and/or Service in Positions of Greater Responsibility" as "Superior/1"; g. Part Ve (Senior Rater Bullet Comments), his senior rater commented: * promote to Sergeant First Class now; NCO is already performing at this level * send to the Senior Leader's Course now * NCO possesses unlimited potential to serve at higher levels; exhibits the skills and temperament of a Senior Leader in today's Army * extremely versatile NCO who responds positively to changes; consistently dependable and excels in any environment 10. The Incident Based Reporting System, 26 April 2015, listed the SM as the victim of an apparent self-inflected gunshot wound to the head. The report states: a. Synopsis: At approximately 0135 hours, 26 April 2015, police officers were dispatched to the scene of a self-inflicted gunshot wound to the head. Once on scene they saw a female crying to the right of a white male lying on his back in the middle of the floor with a gunshot wound to the head. b. Investigation: (1) At approximately 0135 hours, 26 April 2015, police officers were dispatched to the scene of a self-inflicted gunshot wound to the head. The police officers arrived and saw the door to the apartment was completely open. Once inside the residence, the police officer saw a Hispanic female sitting on the floor crying and sobbing in front of a chair. A white male was lying in the middle of the room with what appeared to be a gunshot wound to the head with a large amount of blood around his head. (2) The police officer told the female to step outside of the room with another police officer. When she stood up, she was undressed from the waist down. He told her to get dressed. She continued to cry and state that "he was trying to show me how to use it." Once the female got dressed, she was escorted out of the residence and the scene was secured. At approximately 0145 hours, Emergency Medical Services arrived and pronounced the victim deceased. At approximately 0204 hours, the coroner arrived on scene and pronounced the victim deceased. The scene was secured and a detective was contacted. (3) Detective advised the police to conduct a canvass. The police officer spoke to the apartment manager who stated Ms. comes to visit the SM for a while and then she will not be back for a short period of time. She also stated the two drink heavily on the weekends and she only had one noise complaint about that residence. (4) After completion of processing the scene, the body was removed and transported to the County Coroner's Office.? c. Narrative, in part: (1) The police officer could see what appeared to be a bullet entry wound on the right side of the SM's head, just forward of his right ear in his temple. Lying on the floor several inches from the SM's left foot was a .40-caliber Smith and Wesson Military and Police semi-automatic handgun. (2) Ms. was asked if she would submit to a gunshot residue test; she complied. The gunshot residue test analysis was performed on 20 August 2015 and found there were no gunshot residue particles present on/in the samples. 11. The DD Form 1300 (Report of Casualty), 27 April 2015, reported the SM's death on 26 April 2015. 12. The Office of the Chief Medical Examiner Final Diagnosis, 1 June 2015, shows the SM's postmortem peripheral blood toxicology ethanol (alcohol) level as 0.279 percent and his vitreous ethanol level as 0.273 percent. He opined the SM's death in this case was due to a gunshot wound to the head. 13. The State Certificate of Death, 31 July 2015, shows the SM died on 26 April 2015 and describes the cause of death as a gunshot wound to head. The applicant is named as the surviving spouse. 14. The Central Laboratory Branch Report of Forensic Laboratory Examination, 20 August 2015, stated the results and conclusions as no gunshot residue particles were found on the lifts from Ms. . The absence of gunshot residue on a subject's hands does not eliminate the possibility that the subject discharged a firearm, handled an object with gunshot residue on it, or was in the proximity of a discharged firearm. 15. The DD Form 261 (Report of Investigation LOD and Misconduct Status), 3 February 2016, found the SM's death was "Not in Line of Duty – Due to Own Misconduct." Based upon the Radcliff Police Department's initial report and witness statements, the findings indicate the SM died by an accidental self-inflicted gunshot wound to the head. Laboratory reports indicate the SM's blood alcohol level was 0.279 percent and no other drugs were identified. The final approval was the Commanding General, Fort Knox. 16. The U.S. Army Human Resources Command (HRC) memorandum from the Director, Casualty and Mortuary Affairs Operations Center (LOD Determination), 17 February 2016, states this office made an LOD determination that the SM, who died in Radcliff, KY, on 26 April 2015 as a result of a gunshot wound to the head, was "Not in Line of Duty – Due to Own Misconduct" at the time of death. 17. The HRC letter, undated, responded to the applicant's appeal of the LOD determination wherein The Adjutant General stated: a. After a thorough administrative review of the LOD investigation, HRC determined the finding of "Not in Line of Duty – Due to Own Misconduct" shall stand. b. The SM was solely responsible for his alcohol toxicity level along with his disregard for the danger of playing with a loaded weapon. Army Regulation 600-8-4 (LOD Policy, Procedures, and Investigations), Rule 3, states injury, disease, or death that results in incapacitation because of the abuse of alcohol and other drugs is not in the LOD; it is due to misconduct. Rule 4 states injury, disease, or death that results in incapacitation because of the abuse of intoxicating liquor is not in the LOD; it is due to misconduct. Rule 6 goes on to state injury or death incurred while tampering with, attempting to ignite, or otherwise handling an explosive, firearm, or highly flammable liquid in disregard of its dangerous qualities is not incurred in the LOD; it is due to misconduct. The fact that the Soldier has been trained or worked with the use or employment of such objects or substances will have an important bearing on whether reasonable precautions were observed. c. Since all other administrative remedies have been exhausted, she may appeal this decision to the Army Review Boards Agency. 18. The applicant's DD Form 149, 5 June 2019, requested amendment of the SM's LOD determination to show his death occurred in the LOD due to the inaccuracies and the completely flawed investigation conducted by the Police Department. She, as well as several other agencies and experts, have noticed the lack of proper protocol, failure to follow the facts, and extreme injustice that led to an unjust verdict, and a potential murderer who is still uninvestigated. 19. On 12 February 2021 after reviewing the application and all supporting documents, the Board found relief was not warranted. The Board concurred with the determination of The Adjutant General, who advised the applicant that the former SM's death was not in the LOD and provided her with the basis for that determination. The Board agreed that the former SM's inebriation, coupled with him handling a weapon, leaves little room for any finding other than not in the LOD under the governing regulation. Based on a preponderance of the evidence, the Board determined the finding that the former SM's death was not in the LOD is not in error or unjust. 20. MEDICAL REVIEW: a. The applicant is the spouse of an FSM and is requesting reconsideration of her previous request for correction of her late husband's records to reflect his death occurred in the line of duty (LOD). The specific facts and circumstances of the case can be found in the ABCMR Record of Proceedings (ROP). Pertinent to this advisory are the following: 1) On 26 April 2015 the FSM was the victim of what was determined an accidental self-inflicted gunshot wound to the head; 2) HRC memorandum dated 17 February 2016, subject: Line of Duty Determination, stated that the LOD determination for the FSM was “not in the line of duty – due to own misconduct” at the time of death; 3) The applicant appealed the determination to HRC and after further consideration, HRC, in a letter, informed the applicant that the FSM’s LOD determination would stand; 4) ABCMR docket number AR20190009506 show the applicant requested the ABCMR direct a change in LOD finding. After consideration and review the Board determined on 12 February 2021 that the previous determination was made without error and wasn’t unjust. The LOD determination was unchanged; 5) The applicant is now seeking reconsideration. b. The military electronic medical record, AHLTA, ROP, and casefiles were reviewed. A review of AHLA shows the FSM first BH-related engagement while on active duty occurred at the Hospital Mental Health Clinic on 5 February 2007. The FSM complained of reoccurring dreams related to specific situations he experienced while deployed to Iraq. He also reported increased anxiety around crowds, exaggerated startle response, avoidance of combat reminders, and sleep difficulties. He reported consuming alcohol only on the weekends. The FSM was diagnosed with Chronic PTSD; however, documentation was void of the diagnostic criteria that was met to render the disorder. Additionally, there appears no evidence the FSM sought follow-up care for PTSD. Encounter note dated 21 June 2007 shows the FSM was seen for an ASAP evaluation. Details related to the encounter were not included in the electronic file, however, the FSM was diagnosed with Substance Use Disorder and appears mandated into treatment. c. Encounter note dated 8 January 2010 showed the applicant was seen by a BH provider while deployed to Iraq and complained of being under pressure from his CoC and not sure why they were “coming down on him”. He reported increased anxiety but did not believe he needed medication or treatment. He was diagnosed with Anxiety NOS and encouraged to return to the clinic when needed. Encounter note dated 7 June 2010 show the applicant presented to the clinic with complaints of sleep difficulties. He was diagnosed with Insomnia and prescribed Ambien. d. Encounter note dated 14 February 2012 show the FSM self-referred for alcohol treatment with concerns about his alcohol consumption. He reported his first drink at age 11-years-old and began drinking regularly at age 14. He reported a history of 2 DUIs with the most recent occurring in 2007. He reported only drinking on the weekend and noted that when he drinks, he sometimes has combat related memories and experiences guilt. He also noted his wife thinks he has PTSD. He was diagnosed with Alcohol Dependence and scheduled for follow-up. Records show the FSM presented again to ASAP for an intake on 10 September 2014. Details of the encounter was not included in the electronic record however the record does show the FSM was diagnosed with Alcohol Abuse and scheduled for follow-up. Records suggest he remained in outpatient care with ASAP through December 2014. e. The FSM’s spouse is requesting reconsideration of her previous request to have the FSM’s records to show his death occurred in the line of duty. While a review of the records shows the applicant with a diagnosis of PTSD (2007), Anxiety (2010), and Insomnia (2010), there is no evidence that the applicant’s death was related to either disorder, and there is insufficient evidence in the records that symptoms of the disorders significantly impacted the FSM, as the he didn’t seek ongoing treatment for either despite routine visits to the BH clinic for ASAP related treatment. The applicant was also diagnosed with Substance Use Disorder and received treatment through ASAP on multiple occasions, with his last mandated treatment period ending in December 2014. While the applicant clearly had a Substance Use Disorder and alcohol use was clearly indicated in the applicant’s death, AR 600-8-5, rule 3, states “injury, disease, or death that results in incapacitation because of the abuse of alcohol and other drugs is not in the line of duty, it is due to misconduct”. Additionally, rule 4 of the same regulation states “injury, disease, or death that results in incapacitation because of the abuse of intoxicating liquor is not in the line of duty, it is due to misconduct. Further, records showed FSM reported he chose to drink on the weekends, which demonstrated capacity to exert a reasonable degree of control over his alcohol use, and to make informed decisions as when to use alcohol. It appears from the line of duty report a decision was made that evening, by the FSM and his companion, to begin drinking which eventually resulted in a fatal accident. The FSM’s death appears to have been the unfortunate result of an accidental gunshot wound, while in an inebriated state, and per regulation, it is classified as line of duty no. Given the above, there is no evidence the LOD determination was improper or unjust. Kurta Questions: 1. Does any evidence state that the applicant had a condition or experience that may excuse or mitigate a discharge? Yes. The applicant contends the FSM’s misconduct was related to PTSD and the applicant had a PTSD diagnosis. 2. Did the condition exist or experience occur during military service? Yes. f. Does the condition or experience actually excuse or mitigate the discharge? No. The FSM’s spouse is requesting reconsideration of her previous request to have the FSM’s records to show his death occurred in the line of duty. While a review of the records shows the applicant with a diagnosis of PTSD (2007), Anxiety (2010), and Insomnia (2010), there is no evidence that the applicant’s death was related to either disorder, and there is insufficient evidence in the records that symptoms of the disorders significantly impacted the FSM, as the he didn’t seek ongoing treatment for either despite routine visits to the BH clinic for ASAP related treatment. The applicant was also diagnosed with Substance Use Disorder and received treatment through ASAP on multiple occasions, with his last mandated treatment period ending in December 2014. While the applicant clearly had a Substance Use Disorder and alcohol use was clearly indicated in the applicant’s death, AR 600-8-5, rule 3, states “injury, disease, or death that results in incapacitation because of the abuse of alcohol and other drugs is not in the line of duty, it is due to misconduct”. Additionally, rule 4 of the same regulation states “injury, disease, or death that results in incapacitation because of the abuse of intoxicating liquor is not in the line of duty, it is due to misconduct. Further, records showed FSM reported he chose to drink on the weekends, which demonstrated capacity to exert a reasonable degree of control over his alcohol use, and to make informed decisions as when to use alcohol. It appears from the line of duty report a decision was made that evening, by the FSM and his companion, to begin drinking which eventually resulted in a fatal accident. The FSM’s death appears to have been the unfortunate result of an accidental gunshot wound, while in an inebriated state, and per regulation, it is classified as line of duty no. Given the above, there is no evidence the LOD determination was improper or unjust. BOARD DISCUSSION: After reviewing the application, all supporting documents, and the evidence found within the SM's military records, the Board found that relief was not warranted. The applicant's contentions, the SM's military records, and regulatory guidance were carefully considered. The evidence of record shows the SM died on 26 April 2015, in, as a result of a gunshot wound to the head. HRC officials determined his death was "Not in Line of Duty – Due to Own Misconduct." a. The Board reviewed the medical advisor’s finding that the SM had a diagnosis of PTSD (2007), Anxiety (2010), and Insomnia (2010); however, there is no evidence that his death was related to these disorders, and there is insufficient evidence in the records that symptoms of the disorders significantly impacted him, as he didn’t seek ongoing treatment despite routine visits to the BH clinic for ASAP related treatment. The SM was also diagnosed with substance use disorder and received treatment through ASAP on multiple occasions, with his last mandated treatment period ending in December 2014. While he clearly had a substance use disorder and alcohol use was clearly indicated in his death, the regulatory rules are clear: “injury, disease, or death that results in incapacitation because of the abuse of alcohol and other drugs is not in the line of duty, it is due to misconduct” and “injury, disease, or death that results in incapacitation because of the abuse of intoxicating liquor is not in the line of duty, it is due to misconduct. c. Based on the preponderance of the evidence, the Board determined the FSM’s death appears to have been the unfortunate result of an accidental gunshot wound, while in an inebriated state, and per regulation, it is classified as line of duty no. Given the above, there is no evidence the LOD determination was improper or unjust. 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 to amend the decision of the ABCMR set forth in Docket AR2019 0009506 on 12 February 2021. 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 15-185 (Army Board for Correction of Military Records) prescribes the policies and procedures for correction of military records by the Secretary of the Army, acting through the ABCMR. The ABCMR will decide cases on the evidence of record; it is not an investigative body. Applicants do not have a right to a hearing before the ABCMR. The Director or the ABCMR may grant a formal hearing whenever justice requires. Additionally, applicants may be represented by counsel at their own expense. 2. Army Regulation 600-8-4 (LOD Policy, Procedures, and Investigations), 4 September 2008, prescribed policies and procedures for investigating the circumstances of disease, injury, or death of a Soldier. It provided standards and considerations used in determining LOD status. a. Paragraph 2-3 (Requirements for LOD Investigations) stated LOD investigations are conducted essentially to arrive at a determination of whether misconduct or negligence was involved in the disease, injury, or death and, if so, to what degree. Depending on the circumstances of the case, an LOD investigation may or may not be required to make this determination. Subparagraph b stated that in all other cases of death or injury, except injuries so slight as to be clearly of no lasting significance (for example, superficial lacerations or abrasions or mild heat injuries), an LOD investigation must be conducted. b. Paragraph 2-6 (Standards Applicable to LOD Determinations) stated decisions on LOD determinations will be made in accordance with the standards set forth in this regulation. (1) Injury, disease, or death proximately caused by the Soldier's intentional misconduct or willful negligence is "not in the LOD due to own misconduct." Simple or ordinary negligence or carelessness, standing alone, does not constitute misconduct. (2) An injury, disease, or death is presumed to be in the LOD unless refuted by substantial evidence contained in the investigation. (3) 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, considering: (a) all direct evidence, that is, evidence based on actual knowledge or observation of witnesses; and/or (b) 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. (4) No distinction will be made between the relative value of direct and indirect evidence. In some cases, direct evidence may be more convincing than indirect evidence. In other cases, indirect evidence may be more convincing than the statement of an eyewitness. The weight of the evidence is not determined by the number of witnesses or exhibits but by the investigating officer and higher authorities accomplishing the following actions: (a) considering all the evidence; (b) evaluating factors such as a witness's behavior, opportunity for knowledge, information possessed, ability to recall and relate events, and relationship to the matter to be decided; and (c) considering other signs of truth. (4) The rules in appendix B will be considered fully in deciding LOD determinations. These rules elaborate upon, but do not modify, the basis for LOD determinations. c. Paragraph 3-8b (Investigation) stated the investigating officer (IO) must be free from bias or prejudice. The IO should never begin the investigation with predetermined ideas as to the cause of the injury, disease, or death. To make a thorough and impartial investigation, the IO should determine the actual facts, not as reported, but as they actually occurred, as far as possible. The IO should then be able to make an intelligent and accurate determination. Promptness is crucial in conducting and completing the investigation. Delays often result in the failure to secure important information. d. Paragraph 3-8e(2)(g) stated evidence regarding the state of intoxication and the extent of impairment of the physical or mental faculties of any person involved and connected with the incident, when relevant. Evidence as to the general appearance and behavior, clear and rational speech, coordination of muscular effort, and all other facts, observations, and opinions of others bearing on the question of actual impairment shall be made to determine the quantity and nature of the intoxication agent used and the period of time over which used by the person. Results of any blood, breath, urine, or tissue tests for the intoxicating agent should also be obtained and submitted as exhibits. e. Paragraph 4-10c (Intoxication and Drug Abuse) stated development of a disease that may be a result of the abuse of alcohol or other drugs is not intentional misconduct within the meaning of Title 10, U.S. Code, section 1207. It would be considered "in the LOD." e. Paragraph 4-13c (LOD Policy and Procedures for Active Duty Deaths on or after 10 September 2001) stated for purposes of rendering an LOD determination in death cases, a Soldier's death will be considered to have occurred in the LOD unless: (1) the death occurred while the Soldier was not serving on active duty, or (2) the death was the result of the Soldier's intentional misconduct or willful negligence, or (3) the death occurred during a period of unauthorized absence. f. Appendix B (Rules Governing LOD and Misconduct Determinations) stated 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 "in the LOD." To arrive at such decisions, several basic rules apply to various situations. The specific rules of misconduct are listed below. (1) B-1 (Rule 1). Injury, disease, or death directly caused by the individual's misconduct or willful negligence is not in the LOD. 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 the LOD; and (2) whether it was due to misconduct. (2) B-3 (Rule 3). Injury, disease, or death that results in incapacitation because of the abuse of alcohol and other drugs is not in LOD. It is due to misconduct. This rule applies to the effect of the drug on the soldier's conduct, as well as to the physical effect on the soldier's body. 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. (3) B-4 (Rule 4). Injury, disease, or death that results in incapacitation because of the abuse of intoxicating liquor is not in the LOD. It is due to misconduct. The principles in Rule 3 apply here. While merely drinking alcoholic beverages is not misconduct, one who voluntarily becomes intoxicated is held to the same standards of conduct as one who is sober. Intoxication does not excuse misconduct. While normally there are behavior patterns common to persons who are intoxicated, some, if not all, of these characteristics may be caused by other conditions. For example, an apparent drunken stupor might have been caused by a blow to the head. Consequently, when the fact of intoxication is not clearly fixed, care should be taken to determine the actual cause of any irrational behavior. (4) B-6 (Rule 6). Injury or death incurred while tampering with, attempting to ignite, or otherwise handling an explosive, firearm, or highly flammable liquid in disregard of its dangerous qualities is incurred not in the LOD. It is due to misconduct. Unexploded ammunition, highly flammable liquids, and firearms are inherently dangerous. Their handling and use require a high degree of care. A Soldier who knows the nature of such an object or substance and who voluntarily or willfully handles or tampers with these materials without authority or in disregard of their dangerous qualities, is willfully negligent. This rule does not apply when a Soldier is required by assigned duties or authorized by appropriate authority to handle the explosive, firearm, or liquid, and reasonable precautions have been taken. The fact that the Soldier has been trained or worked with the use or employment of such objects or substances will have an important bearing on whether reasonable precautions were observed. 3. On 3 September 2014, the Secretary of Defense directed the Service Discharge Review Boards (DRBs) and Service Boards for Correction of Military/Naval Records (BCM/NRs) to carefully consider the revised PTSD criteria, detailed medical considerations, and mitigating factors when taking action on applications from former SMs 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 applicants' service. 4. On 25 August 2017, the Office of the Undersecretary of Defense for Personnel and Readiness issued clarifying guidance for the Secretary of Defense Directive to DRBs and BCM/NRs when considering requests by veterans for modification of their discharges due, in whole or in part, to: mental health conditions, including PTSD; traumatic brain injury; sexual assault; or sexual harassment. Boards are to give liberal consideration to veterans petitioning for discharge relief when the application for relief is based, in whole or in part, on those conditions or experiences. The guidance further describes evidence sources and criteria, and requires boards to consider the conditions or experiences presented in evidence as potential mitigation for misconduct that led to the discharge. 5. On 25 July 2018, the Under Secretary of Defense for Personnel and Readiness issued guidance to Service BCM/NRs regarding equity, injustice, or clemency determinations. Clemency generally refers to relief specifically granted from a criminal sentence. BCM/NRs may grant clemency regardless of the court-martial forum. However, the guidance applies to more than clemency from a sentencing in a court- martial; it also applies to any other corrections, including changes in a discharge, which may be warranted on equity or relief from injustice grounds. This guidance does not mandate relief, but rather provides standards and principles to guide BCM/NRs in application of their equitable relief authority. In determining whether to grant relief on the basis of equity, injustice, or clemency grounds, BCM/NRs shall consider the prospect for rehabilitation, external evidence, sworn testimony, policy changes, relative severity of misconduct, mental and behavioral health conditions, official governmental acknowledgement that a relevant error or injustice was committed, and uniformity of punishment. Changes to the narrative reason for discharge and/or an upgraded character of service granted solely on equity, injustice, or clemency grounds normally should not result in separation pay, retroactive promotions, and payment of past medical expenses or similar benefits that might have been received if the original discharge had been for the revised reason or had the upgraded service characterization. //NOTHING FOLLOWS// ABCMR Record of Proceedings (cont) AR20220009970 1 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1