MEMORANDUM OF CONSIDERATION

THE CASE OF:
        


         BOARD DATE: 1 July 2003
         DOCKET NUMBER: AR2002081162

         I certify that hereinafter is recorded the record of consideration of the Army Board for Correction of Military Records in the case of the above-named individual.

Mr. Carl W. S. Chun		Director
Ms. Antoinette Farley.		Analyst

The following members, a quorum, were present:

Mr. Ted S. Kanamine		Chairperson
Mr. Melvin H. Meyer		Member
Ms. Karen Y. Fletcher		Member

         The Board, established pursuant to authority contained in 10 U.S.C. 1552, convened at the call of the Chairperson on the above date. In accordance with Army Regulation 15-185, the application and the available military records pertinent to the corrective action requested were reviewed to determine whether to authorize a formal hearing, recommend that the records be corrected without a formal hearing, or to deny the application without a formal hearing if it is determined that insufficient relevant evidence has been presented to demonstrate the existence of probable material error or injustice.

         The applicant requests correction of military records as stated in the application to the Board and as restated herein.

         The Board considered the following evidence:

         Exhibit A - Application for correction of military
records
         Exhibit B - Military Personnel Records (including
         advisory opinion, if any)

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APPLICANT REQUESTS: The applicant requests that the Purple Heart be included on his DD Form 214 (Certificate of Release or Discharge from Active Duty).

APPLICANT STATES: That he was separated by discharge Orders 101-1 dated 27 May 1992 from Active Duty due to a physical disability with severance pay, resulting from a combat-related injury. He therefore, feels he is entitled to be awarded the medal.
        
EVIDENCE OF RECORD: The applicant's military records show:

He served in the Army National Guard (ARNG) from 27 September 1987 to
8 October 1990.

On 9 October 1980, the applicant enlisted in the Regular Army (RA) for
3 years and completed his training as a Petroleum Supply Specialist.

He served in Southwest Asia from 30 October 1990 to 20 April 1991. Upon his return from overseas he was assigned to duty at Fort Sam Houston, Texas.

Medical evidence of record shows that the applicant was in good health until February 1991, when he first complained that he fell off of a truck and landed on a brick. He initially had pain in his lower back. He was able to get up and recover from this and was able to stay in the Southwest Asia Theater. However, he continued to have difficulty with pain in his back. He returned from Saudi Arabia and between February and September of 1991, had intermittent back pain, which was mildly restricting. In September of 1991, he attempted to lift a heavy box and experienced extreme pain in his lower back. He found that his back pain increased with sitting, standing in one position for a long period of time, lifting objects of any significant weight and running.

In February 1991, the applicant stated that he injured his back during an air attack while conducting re-supply operations to the 27^th MSB during Operation Desert Storm. He further stated that he fell from a stake and platform trailer injuring his back after falling on top of a rock on the ground. Sworn statements from the applicant’s three Platoon Leaders, clearly show he had not reported the incident to them or that he had been assigned to sick call for a back injury. However, there is one SGT who remembers him complaining about back problems from October 1990 through April 1991, but does not recall the reason due to falling off an M871 trailer. The LODI also included a medical summary from the applicant’s physician. The physician states that the applicant suffers from Spondylolysis, which is a deficiency in the spine. He further states, that the applicant may have had the problem before the alleged fall in Southwest Asia, which may have aggravated the situation.
On 15 November 1991, the applicant was diagnosed by a medical evaluation board (MEB) as having Symptomatic Lumbar Spondylolisthesis and Chronic Eczema. The MEB further determined that he was unfit for retention and recommended that his case be referred to the Physical Evaluation Board (PEB).
On 9 April 1992, the LODI concluded that he incurred his injury in the line of duty and a formal LODI was required.

On 27 April 1992, a PEB found the applicant physically unfit due to Spondylolisthesia, Grade I, L5/S1, manifested by pain on activity, VA Schedule for Rating Disabilities (VASRD) Code 5293. MEB diagnosis Chronic Eczema
was found not unfitting and was not rated. The PEB recommended a rating of
10 percent and that the applicant be separated from the service with severance pay. The applicant concurred with the findings on the same day.

On 3 June 1992, the applicant was separated under the provisions of Army Regulation 635-40, paragraph 4-24e(3), by reason of physical disability with severance pay with an honorable discharge. He had completed 1 year
7 months and 25 days of total active service under his current enlistment,
2 years, 8 months and 2 days of prior inactive service and 4 months and 13 days of prior active service. The highest rank he attained was pay grade E-3.

The applicant's DD Form 214 (Certificate of Release or Discharge from Active Duty) shows in Item 13 (Decorations, Medals, Badges, Citations and Campaign Ribbons Awarded or Authorized) award of the National Defense Service Medal, the Southwest Asia Service Medal with three bronze service stars, the Army Service Medal and the Kuwait Liberation Medal. The Purple Heart award is not shown. Additionally, the applicant’s personnel records do not contain any evidence that he was wounded or treated for wounds as a result of hostile action.
Army Regulation 600-8-22 (Military Awards) provides, in pertinent part, 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.

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

1. The applicant’s record shows that he received extensive medical treatment for a lower back injury as documented in his MEB dated 15 November 1991. He was eventually separated by reason of physical disability with severance pay based on the PEB findings, which show that his (lower back injury) disability resulted from a combat related injury as defined in 26 U.S.C. 104.
2. However, the Board concludes that the injury to his lower back was not the result of hostile action. No evidence is available to the Board, which shows that the applicant was wounded or treated for an injury attributed to hostile enemy action while stationed in Saudia Arabia.

3. Based on the foregoing and in the absence of records which show the applicant was wounded as a result of hostile enemy action, the applicant’s injury does not meet the criteria under Army Regulation 600-8-22, for award of the Purple Heart. He therefore, is not entitled to award of the Purple Heart.

4. 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 this requirement.

5. 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

KTS MHM KYF DENY APPLICATION

                  Carl W. S. Chun
                  Director, Army Board for Correction
of Military Records

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INDEX

CASE ID	AR2002081162
SUFFIX
RECON	YYYYMMDD
DATE BOARDED	YYYYMMDD
TYPE OF DISCHARGE	(HD, GD, UOTHC, UD, BCD, DD, UNCHAR)
DATE OF DISCHARGE	YYYYMMDD
DISCHARGE AUTHORITY	AR . . . . .
DISCHARGE REASON
BOARD DECISION	(NC, GRANT , DENY, GRANT PLUS)
REVIEW AUTHORITY
ISSUES 1.
2.
3.
4.
5.
6.

INDEX

CASE ID	AR2002081162
SUFFIX
RECON
DATE BOARDED	20030701
TYPE OF DISCHARGE	(HD, GD, UOTHC, UD, BCD, DD, UNCHAR)
DATE OF DISCHARGE	YYYYMMDD
DISCHARGE AUTHORITY	AR . . . . .
DISCHARGE REASON
BOARD DECISION	(NC, GRANT , DENY, GRANT PLUS)
REVIEW AUTHORITY	DIRECTOR
ISSUES 1.	A107.0015
2.	A108.0700
3.
4.
5.
6.