IN THE CASE OF: BOARD DATE: 25 October 2021 DOCKET NUMBER: AR20210005632 APPLICANT REQUESTS: correction of DD Form 261 (Report of Investigation - Line of Duty (LOD) and Misconduct Status), 14 July 2017 to show the death of her husband, a deceased service member, was "In Line of Duty" instead of "Not in Line of Duty - Due to Own Misconduct." APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: * DD Form 149 (Application for Correction of Military Record under the Provisions of Title 10, U.S. Code, Section 1552) * Amended State Certificate of Death, * Counsel's Memorandum (LOD Appeal in Reference to (Applicant) and Substantial New Evidence), 29 October 2020, with four binders of supporting documents: * Binder 1 - Endorsements * Binder 2 - Substantial New Evidence * Binder 3 - New and Pertinent Medical Records * Binder 4 - Service Records FACTS: 1. The applicant is the spouse of a deceased service member (SM). 2. The applicant states: a. She is requesting correction of the administrative error and the injustice in the military record of her deceased spouse be corrected from Not in Line of Duty (NLOD) to "In Line of Duty" based on substantial new evidence. b. Post-Traumatic Stress Disorder (PTSD) was the proximate cause of her spouse's death, as supported by multiple expert mental health specialist, all of whom conducted a thorough psychiatric review of his complete medical and service records. c. At the time of his death, he was suffering from chronic, untreated, although diagnosed PTSD as a result of his two combat deployments in support of Operation Iraqi Freedom and Operation Enduring Freedom. d. New substantial evidence is provided to show his final autopsy report and death certificate were amended in April 2020, listing PTSD as a condition (due to military service), that substantially contributed to his cause of death. Based on this substantial new evidence, the Department of Veterans Affairs (VA) reversed their LOD decision to "In the Line of Duty" in May 2020. e. Finally, and most importantly, the LOD reviewing general officer, Brigadier General (BG) and the LOD investigating officer, Major both reversed their initial NLOD to "In the Line of Duty" based on review of the substantial new evidence. Her spouse was not of sound mind on the date of his death based on amended official records and his accidental death should be found "In the Line of Duty." 3. Counsel's Memorandum (LOD Appeal in Reference to (Applicant) and Substantial New Evidence), 29 October 2020, states: a. The deceased SM was a decorated combat veteran and a highly distinguished Soldier, who died while on active duty (Honorable discharge), on 28 November 2017, after having served nearly 18 honorable years of service in the Army and his nation. Records show he deployed to Iraq in support of Operation Iraqi Freedom (OIF) from January 2003 through January 2004, and again from June 2006 through June 2007. At the time of his death, on 28 November 2017, his service was interrupted as a consequence of a chronic, untreated, although diagnosed mental illness/injury of PTSD that resulted in his involuntary, unintentional, and accidental death from mixed drug intoxication. b. The investigating officer's LOD investigation made the recommendations "Based on the autopsy report of multiple drug toxicity" and "based on my findings with review of all available evidence, I make the recommendations that (Applicant's) death be found not in the line of duty due to own misconduct." c. The state autopsy examination report stated the applicant died as a result of mixed drug intoxication. The physical examination found no evidence of previous use of any illegal or unauthorized drug use. The pathologist's independent medical conclusion was that the ingestion was a one-time isolated event and accidental. d. A reconsideration request to U.S. Army Human Resources Command (HRC), 6 November 2019, resulted in a decision by HRC on 13 January 2020, to retain the initial "Not in the Line of Duty" stating the applicant's service records were devoid of psychological damage from his combat experiences despite after providing an independent 35-page mental health evaluation from an U.S. Army physician with over 50 years of psychiatric experience diagnosing and treating service members. HRC cited the same conclusion as the LOD's investigating officer, who concluded, without having completed a thorough review, that since his death was a result of drug ingestion, it was drug abuse, and therefore the result of misconduct, as identified in Army Regulation 600-8-4 (LOD Policy, Procedures and Investigations), appendix D-3 (Rule 3). e. The LOD investigating officer failed to correctly follow the standards in accordance with Army Regulation 600-8-4, chapter 3 (The Line of Duty Investigation Process." The provisions were not correctly addressed, which, if they were, it would have been readily apparent that the deceased SM was in fact suffering from chronic untreated PTSD at the time of his death, and did not receive any medical treatment from the military medical community, which ultimately led to his death. f. The LOD reviewing psychiatrist should have reviewed all the medical records, both electronic and non-electronic, he would have concluded that the deceased SM did in fact have a documented medical diagnosis of PTSD. His titration and polysomnography records documented his chronic insomnia, headaches, anxiety, bruxism, and temporomandibular joint dysfunction pain, for which he was repeated prescribed Baclofen, Flexerial and Nortriptyline. Neuropsychologist, Dr. confirms in her expert clinical opinion that elevations such as those of the deceased SM are often indicative of restlessness during sleep and associated with intense nightmares and active dream states, indicating PTSD induced sleep disorder. g. The only real evidence the LOD investigating officer and reviewing psychiatrist presented in making their "NLOD" determination was based on conjecture and conclusion from the deceased SM's autopsy report. Army Regulation 600-8-4 stresses the indispensability of sworn statements, that they carry more weight and are the preferred form of evidence; however, there were "zero" statements included in the LOD investigation. The investigating officer did not contact anyone in the investigative process, including the deceased SM's spouse or his leadership. h. Both the investigating officer and the reviewing psychiatrist knew that the deceased SM deployed to a combat zone twice, or at least that information was readily "available" in his post deployment heath records, yet there is no mention of reviewing his service record and military background. i. Many of those who deployed with him support the fact that his mental state was seriously decompensating after returning from his deployments right up until his death. All of the statements of those who deployed with him are remarkably consistent, both in terms of the witnessed symptoms and also in terms of the timeline of when they noticed his behavioral changes. His spouse provided letters he wrote while stationed in Iraq, highlighting the portions where he attests to combat stress and increased anxiety. From the tone of his letter, it is very obvious that he was greatly affected by his time in theater and began suffering from PTSD while on deployment. Additional statements from those who knew him well, had reason to believe he was experiencing mental health problems. j. Substantial new medical evidence, since the initial LOD determination, shows several expert mental health specialists who have reviewed the extensive electronic and non-electronic medical records, state that there was other available evidence inside of his military medical records, which clearly identifies that he was suffering from PTSD and he was not of sound mind on the date of his death. PTSD was a direct result of his military assignments to war zone area of "imminent danger" and not the result of his own misconduct. k. Contrary to the initial NLOD determination, the additional medical evidence and documentation that has now been presented is substantial and supports the contention that an administrative error was made on the deceased SM's military record, and it would be in the interest of justice to correct his record. Not only does the findings supported by a greater weight of evidence, but the credible medical evidence, supported by six expert mental health specialists, all of who collectively and unanimously established a degree of medical/clinical certainty, beyond a reasonable doubt, that he was not of sound mind on the date of his death. That his untreated, although diagnosed chronic mental illness/injury of PTSD (as a result of two combat deployments to Iraq), were the proximate cause of his drug overdose death on 28 November 2017 and is further supported by DSM-5, criteria E2. l. This conclusion is overwhelmingly supported by 15 affidavits from those that knew him, complete medical records for his time of service, as well as an amended final death certificate and autopsy report, and the VA final "In Line of Duty" determination. m. An email from the LOD investigating officer, 15 September 2020, sent to the applicant, confirming that, had a complete medical records review been conducted by the LOD reviewing psychiatrist and had he had spoken to her and those that knew and worked with the deceased SM, the his LOD recommendation would have been different. He also confirmed that substantial new evidence warrants reconsideration. n. Army Regulation 600-8-4, paragraph 4-17(1) states that "The approval authority may change his previous determination of NLD to ILD if there is substantial new evidence to warrant it." A letter of endorsement from the LOD reviewing Brigadier General (BG) 14 October 2020, after careful review of substantial new evidence provided to him by the applicant, he states "Recommend reversing the initial determination and establishing that (Applicant's) death was "in line of duty" and "I believe an administrative error was made on (Applicant's) record resulting in an unfair injustice to his surviving spouse." o. Additional letters of endorsement from senior government officials, including general officers (current and retired), that reviewed the supplemental new medical evidence and humbly request a redetermination. 4. He enlisted in the Regular Army on 18 May 2000. 5. His DA Form 2166-8 (Noncommissioned Officer (NCO) Evaluation Report (NCOER)), covering the period March 2003 through August 2003, shows in: * Part I(c) (Rank) - Sergeant * Part I(d) (Date of Rank) - 1 March 2003 * Part I(e) (PMOSC (Primary Military Occupational Specialty Code)) - 31U (Signal Support System Specialist) * Part I(f) (Unit, Organization, Station, Zip Code, or APO, Major Command) - he was assigned to a unit at Ba'Qubah, Iraq * Part III(a) (Principal Duty Title) - Forward Signal Support NCO * Part IV (Army Values/Attributes/Skills/Actions) in part comments - "his physical and mental toughness allowed him to continue mission for over 96 hours of convoy operations OIF" and "serves as a gunner for the 1SG [First Sergeant] HMMWV [High-Mobility Multipurpose Wheeled Vehicle], a job reserved for a combat arms soldier" 6. On 1 December 2003, he was awarded the Bronze Star Medal, for exceptionally meritorious achievement while assigned as the brigade retransmission team chief and communications security NCO during Operation Iraqi Freedom, during the period 6 April 2003 to 15 December 2003. 7. His DA Form 1059 (Service School Academic Evaluation Report), 23 September 2006, shows he successfully graduated from Basis NCO Course and exceeded course standards. His rater marked "Superior" in his demonstrated abilities for oral communications, leadership skills, and for his research ability. 8. His DA Form 2166-8 (NCOER), covering the period 1 April 2006 through 31 March 2007 shows in: * Part I(c) (Rank) - Staff Sergeant * Part I(d) (Date of Rank) - 1 May 2005 * Part I(e) (PMOSC (Primary Military Occupational Specialty Code)) - 25B (Information Technology Specialist) * Part I(f) (Unit, Organization, Station, Zip Code, or APO, Major Command) - he was assigned to a unit at Al Asad, Iraq * Part III(a) (Principal Duty Title) - Group Communications Chief * Part IV (Army Values/Attributes/Skills/Actions) - his rater marked "Excellence" in 4 of 5 categories and commented in part "scored a 285 on his last Army Physical Fitness Test" and "displayed a can do attitude and maintained outstanding military bearing at all times" * Part V (Overall Performance and Potential) - his rater marked is overall potential as "Among the Best" and his senior rater marked "Successful/1" for Overall Performance, "Superior/1" for Overall Potential for Promotion and/or Service in Positions of Greater Responsibility, and commented: * promote now * send to ANCOC [Advanced NCOs' Course] immediately to take advantage of this outstanding NCO's drive to exceed the standards * challenge this stellar NCO with greater responsibility and tougher positions in order to constantly test his unlimited potential * led from the front in a combat environment * embodies the words and spirit of the NCO Creed and Warrior Ethos 9. On 28 May 2007, he was awarded the Army Commendation Medal for meritorious service while serving as the 593rd Corps Support Group Communications Chief in support of Operation Iraqi Freedom for the period 15 October 2006 to 27 June 2007. 10. His Standard Form 2808 (Report of Medical Examination), dated 20 June 2008, shows the examining physician assistant noted no medical defects or diagnoses and determined he was qualified for service for the Warrant Officer Candidate. 11. His service record shows he was promoted to sergeant first class on 1 November 2008. 12. His DA Form 2166-8 (NCOER), covering the period 31 March 2008 through 30 March 2009 shows in: * Part I(c) (Rank) -Sergeant First Class * Part I(d) (Date of Rank) - 1 November 2008 * Part I(e) (PMOSC (Primary Military Occupational Specialty Code)) - 25B (Information Technology Specialist) * Part IV (Army Values/Attributes/Skills/Actions) - his rater marked "Excellence" in 4 of 5 categories and commented in part "scored a 298 on his last Army Physical Fitness Test" and "calm demeanor in time of great mental and physical stress directly reflected his professionalism and toughness" * Part V (Overall Performance and Potential) - his rater marked is overall potential as "Among the Best" and his senior rater marked "Successful/1" for Overall Performance, "Superior/1" for Overall Potential for Promotion and/or Service in Positions of Greater Responsibility, and commented: * unlimited potential; promote now; already selected for Warrant Officer Candidate * continue to assign to positions of greater responsibility * assign as communication's chief of a maneuver brigade combat team now * a total self-starter dedicated to the Army Values; readily accepts responsibility and can be counted upon to always do what's best 13. On 11 May 2009, he was awarded the Meritorious Service Medal for exceptionally meritorious service assigned as communications chief and senior data systems integrator, for the period 19 October 2005 to 10 June 2009. His leadership and expertise were instrumental during the Sustainment Brigade's successful deployment to Iraq. 14. He was honorably discharged from active duty to accept commission as warrant officer in the U.S. Army on 16 July 2009. His DD Form 214 (Certificate of Release or Discharge from Active Duty) shows in: * item 12c (Net Active Service This Period) - 9 years,1 month, 29 days * item 13 (Decorations, Medals, Badges, Citations and Campaign Ribbons Awarded or Authorized) - * Bronze Star Medal * Army Commendation Medal with oak leaf cluster * Army Achievement Medal with two oak leaf clusters * Army Good Conduct Medal with two oak leaf clusters * National Defense Service Medal * Global War on Terrorism Expeditionary Medal * Global War on Terrorism Service Medal * Iraq Campaign Medal with campaign star * Noncommissioned Officer Professional Development Ribbon with number "2" * Army Service Ribbon * Overseas Service Ribbon * Item 18 (Remarks) - * Served in a Designated Imminent Danger Pay Area * Service in Iraq 29 January 2003 to 28 January 2004 * Service in Iraq 27 June 2006 to 15 June 2007 15. The Headquarters, U.S. Army Garrison, Fort Rucker Orders 198-348-A-956, 17 July 2009, ordered him to active duty in the rank/grade of Warrant Officer/WO1, with an effective date of appointment as 17 July 2009. 16. The HRC Order 171-012, 20 June 2011, promoted him to the rank/grade of chief warrant officer two/CW2, with an effective dated of 17 July 2011. 17. On 15 August 2011, the American Military University conferred upon him the degree of Bachelor of Science Information Systems Security. 18. On 15 August 2014, the American Military University conferred upon him the degree of Master of Science Information Technology, with Honors. 19. The Integrated Neurology Service medical document, 1 January 2016, showed his current symptoms as: headache, pain, and sleeping problems, snoring. 20. His Sleep Questionnaire, 28 October 2016, he stated that his ulcerative colitis diagnosis symptoms caused weight loss. He was seeking treatment for his snoring, difficulty falling asleep, excessive daytime sleepiness, difficulty staying asleep, and disruptive behaviors during sleep, stating his sleep problems start over 8 years ago. 21. The Integrated Sleep Services, 29 October 2016, shows the results of his polysomnography showing a diagnosis of mild obstructive sleep apnea. 22. The State Certificate of Marriage Registration, 30 March 2016, shows the applicant and the deceased SM were married on 30 March 2016. 23. His DA Form 67-10-2 (Field Grade Plate Officer Evaluation Report), covering the period 9 June 2015 through 7 June 2016, shows in: a. Part IVe (This Officer's Overall Performance is Rated as) - his rater rated his performance as "Excels" and commented "(Applicant) is easily the best cyberspace officer and the #1 Warrant Officer I have worked with in my 22 years of service. His is the most competent Warrant Officer in the Division at assimilating and integrating cybersecurity capabilities. He is a rising star in the signal and cyber fields, and a natural at simplifying and explaining complex technological situations which demonstrates his level of mastery of Information Protection and Network Defense over seniors and peers." b. Part VI (Senior Rater) - his senior rater rated his potential as "Highly Qualified" and commented in part: "A truly Multi-talented, multi-faceted, and exceptional network defender. (Applicant) is without a doubt, one of the smartest Warrant Officers with whom I served." 24. On 21 June 2016, he was awarded the Meritorious Service Medal for exceptionally meritorious service while serving as the senior information protection technician for the period 5 August 2013 to 18 July 2016. 25. The Sleep Note, 28 June 2017, review of systems included psychiatric: anxiety. 26. The HRC Orders 203-056, 21 July 2016, promoted him to the rank/grade of chief warrant officer three/CW3, with an effective date of 1 August 2016. 27. The Andrew Rader Primary Care Clinic, Patient Care Plan, 6 September 2016, shows the deceased SM was diagnosed with ulcerative colitis, sleep disorder and PTSD and was referred for sleep disorder and gastro. 28. The DD Form 2173 (Statement of Medical Examination and Duty Status), 29 November 2017, shows on 28 November 2017, the deceased SM was found unresponsive by his spouse at his residence. The Emergency Services and police department responded to the residence and the deceased SM was pronounced deceased at 1612 hours. A formal LOD was required and the deceased SM's commander or unit advisor marked that the injury is not considered to have been incurred in the line of duty. 29. The North American Aerospace Defense Command memorandums (Appointment Order for Line of Duty Investigation Officer), 29 November 2017 and 18 January 2018, appointed an investigation officer to obtain details pertaining to the death of the applicant's spouse. 30. The Headquarters, 4th Infantry Division and Fort Carson memorandum (LOD Investigation Mental Health Evaluation for (Deceased SM)), 17 January 2018, a review of medical data concerning the psychiatric diagnosis of the deceased SM, the psychiatrist states: a. Final autopsy findings indicate the he died as a result of a mixed drug intoxication and his manner of death was determined to be an accident. The substances which were found in his system at autopsy included methamphetamine, cocaine, benzoylecgonine (a metabolite of cocaine), oxycodone (an opiate pain medication), hydrocodone (another opiate pain medication), THC (marijuana), levamisole (a medication used to treat parasitic infections), naproxen (an anti-inflammatory medication, nicotine, and cotinine (a metabolite of nicotine). b. Electronic medical records show that he did not have a documented history of mental illness. There is no evidence that he was ever diagnosed with a behavioral health disorder. c. He was seen by a clinical pharmacist for polypharmacy in May 2017, because of met the criteria for polypharmacy as a result of his prescriptions which included hydrocodone/acetaminophen (an opiate pain medication) ibuprofen (an anti-inflammatory medication), chlorhexidine (an antiseptic antibacterial agent), baciofen (a muscle relaxant), and nortriptyline (an anti-depressant often used as a sleep aid). d. Autopsy examination lists the manner of death as accidental. There was no evidence in the medical record or the evidence provided by LOD investigating officer or any mental defect, disease, or derangement, nor was there any evidence that the Soldier was unable to comprehend the nature of his acts or to control his actions. e. Based on all available evidence, this Soldier was likely of sound mind on the date of his death, 28 November 2017. Furthermore, his mental condition was likely the result of his own misconduct. His mental condition does not appear to have existed prior to military service. 31. The North American Aerospace Defense Command memorandum (Findings and Recommendations for LOD Investigation regarding the death of (Deceased SM)), undated, the investigating officer states he was tasked to determine whether misconduct or negligence was involved in the deceased SM and if so, to what degree, stating: a. An autopsy was conducted on 29 November 2017, indicating that he died as a result of a mixed drug intoxication. The substances which were found in his system at autopsy included amphetamine, methamphetamine, cocaine, benzoylecgonine (a metabolite of cocaine), oxycodone (an opiate pain medication), hydrocodone (another opiate pain medication), THC (marijuana), levamisole (a medication used to treat parasitic infections), naproxen (an anti-inflammatory medication), nicotine, and cotinine (a metabolite of nicotine). The autopsy also determined that all of his vital organs were healthy and not indicative of any preexisting disease or defect. b. According to his medical records, he had six prescribed medications in his file (two active, three expired). Current active medications included: baclofen (muscle relaxant) and nortriptyline (antidepressant). Expired medications included hydrocodone (narcotic), ibuprofen (pain medication), and chlorhexidine (mouthwash). c. He did not interview the deceased SM's spouse because she was interviewed by law enforcement and he determined there was no further benefit to interviewing her. d. Based on the facts, he made the following findings: (1) Based on the autopsy report of multiple drug toxicity, including the illegal use of Meth-Amphetamines, Marijuana, and Cocaine, this led him to determine that he deliberately ingested multiple prescriptions and illegal drugs (voluntary intoxication) while on leave, causing his death; as a result of his own misconduct. (2) A psychiatric review of his medical record was screened to determine his likely state of mind at the time of his death. From the psychiatric review, there was no documented evidence that would indicate he suffered from any form of mental defect, disease, or behavioral health disorder and that he was likely of sound mind on the date of his death. (3) Based on comparing the toxicology report to the Department of Defense instruction, it is evident that he had multiple illegal drug levels in his system that were above the threshold for a positive drug test result for a Department of Defense military member. The methamphetamine level was 4.5 times higher than the initial cutoff levels. The Cocaine (Metabolite) levels were more than ten times above the initial positive drug test result level. (4) Army Regulation 600-8-4, Appendix B, Rule 3 states "Injury, disease, or death that results in incapacitation because of the abuse of alcohol and other drugs in 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." e. Based on the findings, with a review of all available evidence, he made the recommendation that his death be found not in the line of duty due to his own misconduct. 32. The DD Form 261 (Report of Investigation LOD and Misconduct Status), shows in item 10g (Remarks), on 28 November 2017, the deceased SM was discovered unresponsive by his spouse and was pronounced dead. The autopsy examination determined the cause of death to be multiple drug toxicity, including the illegal use of Meth-Amphetamines, Marijuana, and Cocaine. On 2 April 2018, the LOD investigation appointing authority approved the investigating officer's findings. 33. The HRC memorandum (LOD Determination), 13 November 2018, notified Defense Finance and Accounting Service that a LOD determination was made in the case of the deceased SM, who died as the result of a drug overdose was "Not in Line of Duty - Due to Own Misconduct" at the time of his death. 34. The HRC letter, 14 November 2018, notified the applicant that after a careful review of the LOD Investigation, a final determination was made that her spouse was "Not in Line of Duty" at the time of his death. Further explaining, adverse findings in LOD cases may result in the loss of certain benefits such as (but not limited to) Survivor Benefit or Dependency and Indemnity Compensation from the VA. 35. The VA's initial Administrative Decision, 21 December 2018, is not in evidence for the Board's review. 36. The counsel's memorandum (Appeal of Findings in Reference to Not in Line of Duty Determination of (Deceased SM)), 6 November 2019, to HRC, the applicant's counsel states: a. The LOD Investigation was flawed, as it did not follow Army regulations and that the deceased SM was suffering from untreated PTSD at the time of his death due to his in-service combat experiences. b. The mental health opinion obtained by the investigating officer indicated that he was mentally sound at the time of his death. However, the mental health officer did not speak to his spouse. According to his spouse, she witnessed a steep decline in his mental health. She provided text messages exchanged between the two of them that substantiate her claims of deteriorating mental health. Of particular interest is the note he wrote two days prior to his death, which seems to indicate that he was beginning to seriously decompensate. c. Additional statements were provided by those who know the deceased SM well and had reason to believe that he was experiencing mental health problems. d. The deceased SM did seek treatment for a mental health condition, even though he told several friends that he was afraid of losing his Top Secret Clearance and what the effect would be on his military career. He visited his primary care provider on 6 September 2016 and receive diagnosis of ulcerative colitis, sleep disorder, and PTSD. The doctor provided referrals for his sleep disorder and ulcerative colitis, but no follow-up for his PTSD or anxiety. e. The unredacted page from the police department report indicates that the deceased SM's spouse reported that he was suffering from sleep apnea, temporomandibular joint dysfunction pain, and PTSD at the time of his death. There was ample evidence available to the investigating officer and the mental health examiner to make a determination the he was not of sound mind at the time of his death. The investigating officer did not speak with the spouse during the course of the LOD Investigation and she would have intimate knowledge of his mental state immediately prior to his death. f. The deceased SM had an untreated mental health condition at the time of his death. He was not mentally sound at the time of his death and his death should be considered as being in the line of duty. 37. The HRC memorandum (LOD Appeal (Deceased SM)), 13 January 2020, The Adjutant General states: a. After a thorough administrative review of the LOD Investigation, we have determined the finding of "Not in Line of Duty - Due to Own Misconduct" will stand. b. Any actions that are induced by voluntary ingestion of alcohol or drugs that cause injury, illness, disease, or death are misconduct and are "Not in Line of Duty." 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. c. The deceased SM passed away on 28 November 2017. The autopsy revealed he passed as a result of mixed drug intoxication and the manner of death was accidental. The toxicology results revealed positive for illicit drugs which included a toxic level of benzoylecgonine (cocaine's major metabolite). d. The appeal addresses untreated PTSD due to the deceased SM's in-service combat experience. Medical records pulled from the Armed Forces Health Longitudinal Technology Application and electronic medical records reveals no diagnosis of any mental health condition. None of his medical encounters during his 12.5 years contain a behavioral health diagnosis from a licensed behavioral health specialist. e. The statements submitted by his spouse, do indeed describe erratic behavior that may or may not be associated with PTSD and she reports that he told her of things that he saw, did and experienced, that she believes qualifies him for a diagnosis of PTSD. She is not a credentialed mental health provided and simply experiencing, seeing and doing things is not enough to warrant a PTSD diagnosis. There is no way of knowing how the deployments impacted him; however, when we review his medical record, he consistently denied mental health concerns. 38. The Office of the Coroner letter, 28 March 2020, the Chief Medical Examiner stated to the applicant: following a physical autopsy, a full medical and psychological autopsy was conducted on the deceased SM's complete medical and service records. As a physician and Medical Examiner, it is his expert medical opinion that PTSD associated with prior military service contributed to his cause of death. The abuse of these drugs indicates within a reasonable degree of certainty that he was not of sound mind at the time of his death. 39. The amended autopsy report, 20 April 2020, shows the diagnosis of mixed drug intoxication and added PTSD. The Chief Medical Examiner opined: it is my opinion that the deceased SM, died as a result of a mixed drug intoxication. It is also my opinion that PTSD associated with prior military service contributed to the cause of death. The manner of death is shown as accident. 40. The amended State Certificate of Death, 24 April 2020, shows the cause of death as mixed drug intoxication and significant conditions contributing to death but not resulting in the underlying cause is shown as PTSD. (Note: the original State Certificate of Death is not in evidence for the Board's review.) 41. The VA Decision Review Officer Decision, 19 May 2020, states they received a Notice of Disagreement on 12 November 2019, and based on a review of the evidence they made the decision, service connection for the cause of death is granted. The reason for the decision shows: a. The applicant submitted additional evidence to include a private medical opinion. The examiner explained the veteran was exposed to severe trauma during his two deployments to Iraq. It is documented that the area to which he was deployed was an area that was under heavy enemy contact with mortars, and other direct and indirect fire. The examiner noted a treatment record in which the Veteran was diagnosed with PTSD but was given no follow up treatment for the mental condition. He further noted official statements from 11 witnesses who had direct interaction with him and the official documents of the case, it is demonstrated that the Veteran also met the criteria for Major Depressive Disorder, which is known to be a common co-morbid condition with PTSD. Depression is frequently a progression of untreated PTSD. b. The examiner opined "It can be said with reasonable medical certainty that (Deceases SM) was NOT in a sound state of mind at the time of his death. It can be said with reasonable medical certainty that (Deceases SM) was suffering from untreated PTSD at the time of his death. His untreated PTSD/depression/insomnia/and likely TBI resulted in impaired coping mechanisms and impaired decision making, ultimately resulting in his accidental death. The prescribed medications Nortriptyline and Baclofen would likely have minimal effect on his state of mind at the time of his death. These medications can cause sedation. The doses of cocaine and methamphetamine would likely have counteracted any noticeable sedation. Combination of Nortriptyline and any stimulant effect can lead to an arrhythmia {abnormal heartbeat) and death. As stated above, (Deceases SM's) untreated PTSD, Major Depressive Disorder and Traumatic Brain Injury appear to be causative and proximate cause of utilizing drugs to cope with his symptoms. His use does not meet the criteria of Substance Use Disorder, as evident from his 18-year stellar career. His accidental, death suggests that his use was that of inexperience and impulsivity, a hallmark symptom of Traumatic Brain Injury and chronic insomnia from the untreated PTSD and Major Depressive Disorder. One could make a case that it may have been a suicide attempt versus an attempt to experience a drug-induced euphoria. This is evidence for NOT being in the right mental state of mind at the time of his death." c. The examiner has opined that the Veteran's use of drugs was not to enjoy the intoxicating effects but to cope with a military related military disability. Based upon the above information, reasonable doubt has been resolved in the applicant's favor. It is determined that the Veteran's death on 28 November 2017 incurred in the line of duty. 42. The five expert medical/forensic/clinical/psychiatric opinions, 4 August 2020 through 22 August 2020, stood in agreement with the VA's final decision of "In the Line of Duty" and listing PTSD as a condition contributing to the deceased SM's death. 43. The email exchange, the applicant and the Investigating Officer, (Surviving Spouse - Requesting Assistance), 8 September 2020 through 15 September 2020: a. The applicant emailed the Investigating Officer, stating she would have like to spoken to him during the investigation so that he could have gained a better understanding on the events leading up to his accidental death as an OIF combat veteran. She also provided additional medical evidence from several psychiatrists and mental health specialist, amended autopsy and death certificate, and letters of endorsements form general officers and her congressman. b. He believes, based on the applicant's email, that she has new evidence that should be considered. Her email clearly stated other military medical records were available and accessible at the time of the investigation. Based on that information, it appears a complete medical records review was not conducted by the U.S. Army psychiatrist that would have shown the deceased SM was in fact diagnosed with a mental health illness in service and not of sound mind at the time of his death. c. He encouraged her to appeal the "Not in the Line of Duty" determination to the approval authority, the Army Review Board Agency. 44. The applicant's affidavit and 16 statements of those who deployed with him and of those who knew him well, 8 February 2019 through 10 October 2020, attest to the deceased SM's behavior and their observations. 45. The six letter of endorsements from five general officers and the applicant's congressman, 27 July 2020 through 14 October 2020, at the request of the applicant, request favorable consideration of the applicant's request. Of note, the Reviewing General Officer of the initial LOD Determination, states: a. Based on the new and substantial evidence presented to him by the applicant, he believes the significance of the information warrants a redetermination of the deceased SM's death as to be "In the Line of Duty." b. Key information not available to him at the time of his LOD determination includes the PTSD diagnosis with no medical follow-up plan or support; detailed mental health evaluations that PTSD was the proximate cause of his death and that the deceased SM was not of sound mind on his date of death; amended final death certificate and autopsy report that lists PTSD associated with military service as a substantial condition contributing to his cause of death; and the VA final LOD decision that overturned their initial determination. c. As the LOD reviewing General Officer, he believes an administrative error was made on the deceased SM's record resulting in an unfair injustice to his surviving spouse. Based on his review of substantial new medical evidence, he strongly recommends the Board's reconsideration of his LOD determination to "In the Line of Duty." 44. MEDICAL REVIEW: Military medical records (AHLTA), VA medical records (JLV), applicant-provided medical documentation reviewed. A handwritten military medical note dated 6 Sep 2016 confirms that the applicant was diagnosed with PTSD. This note also indicates that applicant suffered a TBI when a garage door came down on his helmeted head. After reviewing all of the pertinent records, it is the opinion of the Agency BH advisor that the applicant was not in a sound state of mind at the time of his death given that he was likely suffering from untreated PTSD and TBI. According to AR 600-8-4, paragraph 4-11, a SM may not be held responsible for his/her acts...if at the time of commission of such acts, as the result of mental defect, disease or derangement, the SM does not have the ability to form intent to undertake the underlying conduct, then the SM is mentally unsound and therefore not mentally responsible, for the purpose of LOD investigations. Conclusion: the applicant was not in his right mind at the time of his death and was not responsible for his actions. Accordingly, his drug ingestion and consequent death should rightfully be considered "In the Line of Duty" as per AR 600-8-4, paragraph 4-11. BOARD DISCUSSION: After reviewing the application and all supporting documents, the Board found that relief was warranted. Based on the documentation available for review, to include the Chief Medical Examiner's opinion that the applicant had PTSD associated with his prior military service and an ARBA Medical Review, the Board found that his death was not due to his own misconduct but the result of his efforts cope with his symptoms. In applying the principals of equity and compassion, the Board concurred with the medical opinion that the applicant's death was in the line of duty. BOARD VOTE: Mbr 1 Mbr 2 Mbr 3 :X :X :X GRANT FULL RELIEF : : : GRANT PARTIAL RELIEF : : : GRANT FORMAL HEARING : : : 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 be corrected to reflect that the death of the deceased service member was in the line of duty. 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 begins its consideration of each case with the presumption of administrative regularity. The applicant has the burden of proving an error or injustice by a preponderance of the evidence. 2. Army Regulation 600-8-4 (LOD Policy, Procedures and Investigations) prescribes policies and procedures for investigating the circumstances of injury, illness, disease, or death of a Soldier. It provides standards and considerations used in making LOD determinations. a. Paragraph 2-4 (Standards Applicable of LOD Determinations) states a Soldier's injury, illness, disease, or death is presumed to have occurred ILD unless rebutted by the evidence. Injury, illness, disease, or death proximately caused by the Soldier's misconduct or gross negligence is "not in line of duty-due to own misconduct." Simple negligence, alone, does not constitute misconduct and is, therefore, still considered to be ILD. Standard of proof, unless another regulation or directive, or an instruction of the appointing authority, establishes a different standard, the findings of investigations governed by this regulation must be supported by a greater weight of evidence than supports a contrary conclusion. b. Paragraph 4-10 (Intoxication and Drug Abuse) states if an injury is incurred as the proximate cause of voluntary intoxication, it is incurred as the result of misconduct. For intoxication alone to be the basis for determining misconduct with respect to a related injury there must be a clear showing that the Soldier's physical or mental faculties were impaired due to intoxication at the time of the injury, that the impairment was voluntary, and that the impairment was the proximate cause of the injury. c. Paragraph 4-11 (General Ruled Regarding Mental Responsibility) states a Soldier may not be held responsible for his or her acts and their foreseeable consequences if, at the time of commission of such acts, 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. That is, if the Soldier does not have the ability to form the intent to undertake the underlying conduct, then the Soldier is mentally unsound, and therefore not mentally responsible, for the purposes of LOD investigations. d. Paragraph 4-12 (Suicide or Attempted Suicide) states suicide refers to a death resulting from purposeful action to result in one's own death. In order for suicide to constitute misconduct, the act of self-destruction must be intentional. A Soldier who is not mentally sound is incapable of forming intent, which is an essential element of intentional misconduct. e. Appendix D-3 (Rule 3) states incapacitation because of the abuse of alcohol or other drugs that results in injury, illness, disease, or death is due to misconduct and is "Not in the Line of Duty." 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. 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 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 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) AR20210005632 18 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1