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Family of Brockton’s Elder Fernandes files $25 million malpractice claim against the Army for allegedly not doing enough to save his life

Fort Hood soldier killed himself after being released from hospital with no support or plan

Family and friends mourn during the funeral for US Army Sergeant Elder Fernandes at Melrose Cemetery in Brockton on Sept. 5, 2020.Craig F. Walker/Globe Staff/The Boston Globe

The family of Army Sergeant Elder Fernandes of Brockton has filed a $25 million medical malpractice claim against the Army, alleging that he would be alive today if the military medical center in Fort Hood, Texas, hadn’t discharged him without a treatment plan or supervision just days after he was admitted with suicidal thoughts.

Instead of helping Fernandes, the claim letter alleges, the hospital simply released him “on a street in Killeen, Texas, to fend for himself. As a result, Sgt. Fernandes died in despair, alone, and unsupported by the United States Army that he was serving.”

Fernandes’s body was discovered hanging from a tree eight days later on Aug. 25, 2020, in Temple, Texas, about 30 miles from the sprawling military base. His death helped spur an investigation into the way the base responds to soldiers in crisis, leading to the suspension or firing of more than a dozen Army officials at Fort Hood.

“It is with great sadness that we submit this demand,” attorneys Lenny Kestenand Michael Stefanilo wrote in their Aug. 15 letter to the Army and Department of Defense. “We hope that Sergeant Fernandes’ death will not be in vain and that no other soldier will suffer as he did. The United States owes this much to his memory. This great country can and will do better.”

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Fernandes’s mother, Ailina, said her heart is broken and will “never heal. Not a day goes by that I do not miss my wonderful son, Elder.”

Sergeant Elder FernandesU.S. ARMY/NYT

In an e-mailed statement, US Army spokesman Sergeant First Class Anthony Hewitt called every suicide “one tragedy too many. We remain saddened by the loss of Sgt. Elder Fernandes and for his family.” Hewitt said the US Army Claims Service is investigating the family’s claim, but he could not comment on the details.

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Fernandes’s family may face an uphill fight in seeking compensation for his death. Active members of the military cannot sue the armed services in court, though veterans can. Since December 2019, however, active-duty military and their families have been allowed to file administrative claims with the branch they served. However, few claims have been successful: WUSA, a TV station in Washington, D.C., reported that as of March 9, hundreds of claims had been filed, but only the Air Force had made any offers to victims — and those four offers totaled just $35,325.

Lawyers and politicians have railed against a justice system that gives active service members fewer rights than retired military personnel, who can take the armed services to court.

“These people are serving our country and of all people, this is the worst group of people to exclude from our judicial system,” said Larry Vogelman, a New Hampshire lawyer who in 2015 helped a veteran obtain a $21.5 million judgment against the Manchester VA Medical Center

The administrative claims process “is better than nothing but it’s a long way away from what it should be,” he said.

Congressman Stephen Lynch, whose district includes Brockton and who has traveled to Fort Hood many times to try to help the family, said he has “witnessed their anguish” and “shared their frustration.

“I fully support any and all efforts of their family and their legal counsel to receive some measure of justice and to hold the responsible parties accountable,” he said.

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Assistant House Speaker Katherine Clark, a Democrat from Revere, said Fernandes’s family “deserves justice. We are failing the servicemembers who entrust us with their safety. I stand shoulder to shoulder with the Fernandes family as they seek answers and accountability.”

Congressman Seth Moulton, a Marine veteran from Salem who represents the Sixth Congressional District, called for an investigation into Fernandes’s death, saying, “This will keep happening if we don’t install more accountability here.”

A protest in Brockton in 2020 following the disappearance and death of Elder Fernandes. Jessica Rinaldi/Globe Staff

Fernandes, 23, was suicidal when he checked into the Carl R. Darnall Army Medical Center on Aug. 11, 2020, reporting that he was being bullied after alleging he had been sexually assaulted by another soldier. But that soldier passed a polygraph test and had been cleared by the Army.

Fernandes was discharged after six days, dropped off alone in front of a friend’s house off base, according to police reports.

Up until the alleged sexual assault, Fernandes was happy and loved the Army enough to re-enlist in February 2020, his family said. He was a chemical, biological, radiological, and nuclear specialist assigned to the Headquarters and Headquarters Company, 553rd Combat Sustainment Support Battalion, First Cavalry Division Sustainment Brigade.

He was waiting to return to Germany, where he had worked before being assigned to Fort Hood in January, but the trip was delayed by COVID-19. While he was waiting to return to Europe, the assault took place, his aunt said.

“Sgt. Fernandes sought help from Darnall (medical center) .. because the harassment he had been subjected to by his fellow soldiers after he had reported a sexual harassment incident had become intolerable,” allege Kesten and Stefanilo.

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He said he would kill himself if he had to go back to the unit where the harassment took place, his lawyers said.

His family was very close; he spoke to his mother at least once a day, his aunt said. Though he called her from the hospital each day, his aunt said, he never explained why he was there. The family didn’t know he was suicidal or being treated for emotional problems because he never told them. He promised to call home as soon as he got out of the hospital.

When he didn’t call, his mother grew concerned. She called the base on Aug. 18, the day after his release. He was supposed to return to work, but he didn’t show up. He was supposed to attend a therapy session, but he didn’t show up.

Officials told his mother he was listed as AWOL, and the Army wouldn’t begin looking for him for 30 days, according to Kesten. Dissatisfied with the response, his mother flew to Texas the next day to ask for help in person.

She has said that the military search for her son did not begin until after she arrived in Texas on Aug. 19. She also went to the local police in Killeen, Texas, who agreed to look for Fernandes.

Army officials insisted they started looking for Fernandes much sooner. “Within hours of Sgt. Fernandes’ disappearance, soldiers from his unit on Fort Hood initiated a thorough search for him, both on and off post, which will continue until he is located,” the First Cavalry Division said in a press release Aug. 23.

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But police in Killeen said in a report they were not alerted to Fernandes’s disappearance until his mother asked them to look for him.

The Killeen police report indicates that Fernandes was alive at least three days after he left the hospital. On Aug. 19, he was seen resting on someone’s property eight miles from Killeen.

“It is readily apparent to any reasonable person that the death of Sergeant Fernandes was preventable,” said the family’s lawyers. “If only Darnall had taken him at his word when he reported that he would, in fact, take his own life if he was forced to return to his unit.”

An independent review committee appointed by the secretary of the army found in November 2020 that there was a high risk of sexual assault and harassment at Fort Hood, that the crime rate at Fort Hood was “notably” higher than at other military bases, and that there was “universal fear of retaliation, exposure and ostracism” for reporting such incidents. The report did not reference Fernandes’s death.

In early December 2020, 14 Fort Hood soldiers were fired or suspended after an investigation of a pattern of violence including murders, sexual assaults, and harassment at the base. Two of the suspended soldiers, Major General Jeffrey Broadwater and Command Sergeant Major Thomas C. Kenny, were commanders in Fernandes’s unit, the First Cavalry Division.


Andrea Estes can be reached at andrea.estes@globe.com.