RECORD OF PROCEEDINGS

         AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS


IN THE MATTER OF:      DOCKET NUMBER:  BC-2010-00548

            COUNSEL: NONE

            HEARING DESIRED:  YES

_________________________________________________________________

APPLICANT REQUESTS THAT:

His records be corrected to reflect that he was in a Reserve  status  on  11
Sep 01, to qualify for award of the Purple Heart (PH).

_________________________________________________________________

APPLICANT CONTENDS THAT:

He was in a Reserve capacity when wounded on 11 Sep 01 as a  result  of  the
terrorist attack on the World Trade Center in New York City.

In support of the appeal,  the  applicant  provides  a  personal  statement,
extracts from  his  military  personnel  records,  and  other  documentation
related to his request.

The applicant’s complete submission, with attachments, is at Exhibit A.

_________________________________________________________________

STATEMENT OF FACTS:

The applicant’s military personnel records reflect that he was  commissioned
in the Reserves on 23 May 81.

The remaining relevant facts pertaining to this  application  are  contained
in the letters prepared by the appropriate offices of the Air  Force,  which
are attached at Exhibits C and D.

The PH is awarded for wounds received as a direct result  of  enemy  actions
(i.e., gunshot  or  shrapnel  wounds,  hand-to-hand  combat  wounds,  forced
aircraft bail out injuries, etc.).  In addition, it is necessary  the  wound
required or received treatment by medical personnel.  Indirect  injuries  do
not meet the criteria for award of  the  PH.   These  include  but  are  not
limited to, injuries received while seeking shelter from  mortar  or  rocket
attacks, aircraft bombings, grenades, and injuries  incurred  while  serving
as an aircraft member in a passenger status as a result  of  the  aircraft’s
evasive measures against hostile fire.

From 1942 to 1997, civilians serving or closely affiliated  with  the  Armed
Forces as government employees, Red Cross workers,  war  correspondents  and
the like were eligible to receive the PH.  About 100 men and women  received
the award, the most famous being newspaperman, Ernie Pyle, who  was  awarded
a posthumous Army PH after being killed by  Japanese  machine  gun  fire  in
1945.

The most recent PHs presented to  civilians  occurred  after  the  terrorist
attack at Khobar Towers, Saudi Arabia, in 1996 when about 40  United  States
civil service employees received the award for their injuries.

In 1997, however, at the urging of the Military Order of the  Purple  Heart,
Congress  passed  legislation  prohibiting  future  awards  of  the  PH   to
civilians.

_________________________________________________________________

AIR FORCE EVALUATION:

AFRC/SGP recommends denial of the applicant’s request for award of  the  PH.
SGP states the applicant did not provide any  documents  substantiating  his
military status at the time of the alleged injury on 11 Sep 01.

The complete AFRC/SGP evaluation is at Exhibit C.

AFRC/A1K recommends denial of the applicant’s request for award of  the  PH.
A1K states the applicant was not in a military duty status on  the  day  the
act occurred for which he is seeking the PH.

The complete AFRC/A1K evaluation is at Exhibit D.

_________________________________________________________________

APPLICANT'S REVIEW OF AIR FORCE EVALUATION:

He was a Reservist on 11 Sep 01 who was injured during the terrorist  attack
and is entitled to the PH.  In his capacity as either a Reservist  or  as  a
civilian  he  was  the  Air  Force’s  on-the-ground  asset  operating  under
competent authority, albeit he was also present as a member of the New  York
City Police Department (NYCPD).  During and after the  attack,  he  received
numerous requests for information from  the  Air  Force  Office  of  Special
Investigation (OSI) to obtain local information that  was  used  in  various
reports.

His pay status has nothing to do with award of the PH. He  was  a  Reservist
and a member of the Armed Forces on 11 Sep 01,  when  he  was  injured,  and
meets all the requirements to be awarded the PH.

The applicant’s complete response, with attachments, is at Exhibit F.
_________________________________________________________________

THE BOARD CONCLUDES THAT:

1.    The applicant has exhausted all remedies provided by existing  law  or
regulations.

2.    The application was not timely filed; however, it is in  the  interest
of justice to excuse the failure to timely file.

3.  Insufficient relevant evidence has been  presented  to  demonstrate  the
existence of error or injustice.  In this regard, we note  the  evidence  of
record clearly substantiates the applicant was acting as  a  member  of  the
NYCPD bomb squad during the attack on the World Trade  Center  in  New  York
City and that he was not in a military status.  In addition,  a  NYCPD  Line
of Duty (LOD) determination concluded the applicant acted  properly  in  his
duties as a member of the NYCPD.  This LOD determination  was  weighed  when
he applied and subsequently  approved  for  Accident  Disability  Retirement
from the NYCPD for the injuries he  sustained  from  the  terrorist  attack.
Further, in our view, the fact that he provided  the  OSI  with  information
after the attack does not automatically  place  him  in  a  Reserve  status.
Regarding the applicant’s request for award of the PH, we note the  National
Defense Authorization Act for Fiscal  Year  1998  changed  the  criteria  to
prohibit award of the PH to any civilian national of the  United  States  in
any capacity.  We appreciate and recognize the applicant’s  service  to  our
Nation, however; in our view he is not entitled to the  PH.   Therefore,  in
the absence of evidence to the contrary,  we  find  no  basis  to  recommend
granting the relief sought in this application.

4.  The applicant's case is adequately documented and it has not been  shown
that a personal appearance with or without counsel will  materially  add  to
our understanding of the issues involved.   Therefore,  the  request  for  a
hearing is not favorably considered.

_________________________________________________________________

THE BOARD DETERMINES THAT:

The applicant be notified that the evidence presented  did  not  demonstrate
the existence of a material error or injustice;  that  the  application  was
denied without a personal appearance;  and  the  application  will  only  be
reconsidered upon the submission of newly discovered relevant  evidence  not
considered with this application.

_________________________________________________________________

The following members of the Board considered  Docket  Number  BC-2010-00548
in Executive Session on 20 Jan 11, under the provisions of AFI 36-2603:

      Mr. -----------, Panel Chair
      Mr. -----------, Member
      Ms. -----------, Member

The following documentary evidence was considered:

      Exhibit A. DD Form 149, dated 15 Dec 10, w/atchs.
      Exhibit B. Applicant's Master Personnel Records.
      Exhibit C. Letter, AFRC/SGP, dated 13 Sep 10.
      Exhibit D. Letter, AFRC/A1K, dated 1 Nov 10.
      Exhibit E. Letter, AFBCMR, dated 7 Dec 10.
      Exhibit F. Letter, Applicant, dated 9 Jan 11, w/atchs.





      ------------
      Panel Chair