Search Decisions

Decision Text

ARMY | BCMR | CY1997 | 9711247
Original file (9711247.rtf) Auto-classification: Denied
APPLICANT REQUESTS: That he be awarded the Purple Heart Medal.

APPLICANT STATES : That he received a combat related injury received in the line of duty as a direct result of armed conflict and incurring during a period of war, as reflected in the physical evaluation board (PEB) proceedings.

EVIDENCE OF RECORD : The applicant's military records show:

The applicant enlisted in the Army National Guard for eight years on 30 January 1987, completed basic and advanced training and returned to his National Guard unit in October 1988. He was discharged from the Army National Guard of California on 7 March 1989.

On 8 March 1989 the applicant enlisted in the Regular Army for four years. On 30 December 1992 he reenlisted for three years.

The applicant served with an artillery battalion in Germany from March of 1989 until April of 1992, interrupted by a five month tour in Saudi Arabia from January to June of 1991. He returned to the United States at Fort Lewis, Washington in April 1992.

On 20 July 1995 a PEB determined that the applicant suffered from fibromyalgia syndrome manifested by irritable bowel syndrome, fatigue, headaches, musculoskeletal pain, poor sleep quality, with some complication from obstructive sleep apnea, mild, rated as moderate, analogous to brucellosis (an infectious disease characterized by an acute febrile state and by a chronic state with relapses of fever, weakness, sweats, and vague aches and pains); and post traumatic stress disorder (PTSD), chronic, with symptoms including major depressive disorder, moderate, improved with treatment and psychological factors affecting musculoskeletal system, mild, rated as mild impairment social and industrial adaptability.

That board found him unfit to perform the duties of his grade and specialty and recommended that he be separated with severance pay with a combined rating of 20 percent. The board made a recommended finding that his retirement (discharge) is based on disability from injury or disease in the line of duty as a direct result of armed conflict or caused by an instrumentality of war and incurring in line of duty during a period of war as defined by law; and the disability did result from a combat related injury as defined by law.

The applicant was discharged at Fort Lewis, Washington, on 10 October 1995 and received $18513.60 in severance pay. He had 6 years, 7 months, and 3 days of service.

Army Regulation 635-40, paragraph 4-19, provides that prior to the Tax Reform Act (TRA) of 1976, (title 26, United States Code (USC), section 104, military disability retired pay or disability severance pay was excluded from gross income for Federal tax purposes. With the passage of
TRA 76, tax exemption is provided only for those individuals whose disability pay is awarded by reason of a combat-related injury which is defined in title 26, USC 104 as an injury resulting from actual armed conflict or conditions simulating war, e.g., a tactical exercise, bayonet training, or grenade and live fire weapons practice.

Army Regulation 600-8-22 provides that the Purple Heart is awarded for a wound sustained as a result of hostile action. Substantiating evidence must be provided to verify that the wound was the result of hostile action, the wound must have required treatment, and the medical treatment must have been
made a matter of official record.

That regulation also states, in pertinent part, that battle fatigue and post traumatic stress disorders clearly do not qualify for award of the Purple Heart.

DISCUSSION : Considering all the evidence, allegations, and information presented by the applicant, together with the evidence of record, applicable law and regulations, and advisory opinion(s), it is concluded:

1. A wound as a result of hostile action and a PEB determination of a combat related disease or injury are not necessarily concordant. For example, a PEB finding of combat-related is derived from a law which provides that an individual injured in a training accident in the United States can be considered combat-related for PEB purposes. On the other hand, the Purple Heart is awarded for wounds incurred only in combat against an enemy of the United States. There is no evidence that the applicant was wounded as a result of hostile action against an enemy of the United States. He is not entitled to award of the Purple Heart.

2. The applicant has submitted neither probative evidence nor a convincing argument in support of his request.

3. In order to justify correction of a military record the applicant must show to the satisfaction of the Board, or it must otherwise satisfactorily appear, that the record is in error or unjust. The applicant has failed to submit evidence that would satisfy the aforementioned requirement.

4. In view of the foregoing, there is no basis for granting the applicant's request.

DETERMINATION : The applicant has failed to submit sufficient relevant evidence to demonstrate the existence of probable error or injustice.

BOARD VOTE :

GRANT

GRANT FORMAL HEARING

DENY APPLICATION




                                                      Karl F. Schneider
                                                      Acting Director

Similar Decisions

  • ARMY | BCMR | CY2002 | 2002068126C070402

    Original file (2002068126C070402.rtf) Auto-classification: Denied

    This Board also noted that the ABCMR in Docket Number AC88-07647 on 6 September 1989 determined that the applicant's DA Form 199 should be amended to show in item 10c that his disability resulted from a combat related injury based on the same "benefit of doubt" stated in the PDA's advisory opinion. The Board noted that indicating in item 10c that the service member's disability resulted from a "combat related injury" does not mean that he was wounded or injured as a result of hostile action...

  • ARMY | BCMR | CY2010 | 20100011152

    Original file (20100011152.txt) Auto-classification: Denied

    Title 26, U.S. Code, section 104, states that the term "combat-related injury" means personal injury or sickness which is incurred as a direct result of armed conflict, while engaged in extra hazardous service under conditions simulating war, or which is caused by an instrumentality of war. A determination that a disability is the result of an instrumentality of war may be made if the disability was incurred in any period of service as a result of such diverse causes as wounds caused by a...

  • ARMY | BCMR | CY2014 | 20140014850

    Original file (20140014850.txt) Auto-classification: Approved

    His unit was awarded the MUC and it should be added to his records and his retirement orders should be corrected to show his disabilities were incurred as a result of armed conflict. Although not present in the available records and the applicant has not provided his PEB proceedings, the applicant was placed on the Temporary Disability Retired List (TDRL) in the pay grade of E-6 effective 21 October 1995 with a 30% disability rating. While it is true that the applicant was granted 100%...

  • ARMY | BCMR | CY2012 | 20120022347

    Original file (20120022347.txt) Auto-classification: Approved

    Application for correction of military records (with supporting documents provided, if any). The PEB stated that the applicant's PTSD was a result of a mortar attack in Iraq. Qualified military retirees must be an active duty or Reserve retiree with 20 or more years of creditable service or a Title 10 USC Chapter 61 medically retiree, be receiving military retired pay, have a 10 percent or greater VA rating for a combat related injury, and have their military retired pay reduced by receipt...

  • ARMY | BCMR | CY2008 | 20080015503

    Original file (20080015503.txt) Auto-classification: Approved

    The applicant requests correction of his 16 December 1971 (1 November 1969 edition) AGPZ Form (Data for Retired Pay) to show in Item 29 (Physical Disability Information Pertinent to the Dual Compensation Act of 1964) that he was “retired for disability caused by an instrumentality of war and incurred in line of duty during a period of war.” In effect, the applicant seeks to qualify for Combat-Related Special Compensation (CRSC). Following the 18 October 1971 PEB, a new AGPZ Form 977, dated...

  • ARMY | BCMR | CY2010 | 20100011593

    Original file (20100011593.txt) Auto-classification: Denied

    The applicant requests correction of her retirement orders to show the following entries as "Yes" instead of "No": a. Her records also show she served in Kuwait from 13 January 2003 to 16 May 2003. The applicant's DA Form 199 (PEB Proceedings) contains the following entries in Item 10 (If Retired Because of Disability, the Board Makes the Recommended Finding that): * The Soldier’s retirement is not based on disability from injury or disease received in the line of duty as a direct result...

  • ARMY | BCMR | CY2009 | 20090003466

    Original file (20090003466.txt) Auto-classification: Denied

    Therefore, absent any evidence of error or injustice in the applicant's PDES processing or evidence that shows he requested COAD (and would have been found qualified for retention) or actually performed additional active duty service subsequent to retirement, there is an insufficient evidentiary basis to credit him with 20 years of active duty service for retirement purposes. However, the evidence of record confirms that the applicant was properly processed through the Army's PDES and that...

  • ARMY | BCMR | CY2010 | 20100021017

    Original file (20100021017.txt) Auto-classification: Denied

    He provides: * a DA Form 3947 (Medical Evaluation Board (MEB) Proceedings), dated 2 August 1996 * a DA Form 3349 (Physical Profile), dated 5 May 1994 * an addendum addressed to the President, Physical Evaluation Board (PEB), dated 23 September 1994 * a DA Form 199 (PEB Proceedings), dated 18 October 1994 * Orders D220-9, issued by U.S. Total Army Personnel Command, Alexandria, VA, dated 15 November 1994, retiring him by reason of permanent physical disability, effective 13 December 1994 *...

  • ARMY | BCMR | CY2012 | 20120016669

    Original file (20120016669.txt) Auto-classification: Denied

    The applicant requests correction of his DA Form 199 (Physical Evaluation Board (PEB) Proceedings) under Items 10a to 10c to show his right hip injury as a disability that was incurred in the line of duty (LOD) as a result of an instrumentality of war. The regulation states in: a. Paragraph 4-19(2)(b) states in block 10C the board will record its determination of whether the injury was combat-related as defined by Title 26, U.S. Code, section 104. b. Paragraph 4-19j that in making a...

  • ARMY | BCMR | CY2007 | 20070013149

    Original file (20070013149.TXT) Auto-classification: Denied

    Item 13 of the applicant's DD Form 214 does not show award of the Purple Heart and the applicant's records do not contain an order awarding the applicant the Purple Heart. This period of active military service is correctly shown in Item 12d of the DD Form 214, dated 28 August 2006. Evidence of record further shows that the applicant enlisted in the Regular Army (entered active duty) on 5 April 1989 and was discharged (temporary disability retirement) on 28 August 2006.