PROCEEDINGS


         IN THE CASE OF:
        

         BOARD DATE: 20 May 2003
         DOCKET NUMBER: AR2003084281


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

Mr. Carl W. S. Chun		Director
Mr. Luis Almodova		Analyst

The following members, a quorum, were present:

Mr. Melvin H. Meyer		Chairperson
Ms. Deborah S. Jacobs		Member
Mr. Jose A. Martinez		Member

         The applicant and counsel if any, did not appear before the Board.

         The Board considered the following evidence:

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

FINDINGS :

1. The applicant has exhausted or the Board has waived the requirement for exhaustion of all administrative remedies afforded by existing law or regulations.

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2. The applicant requests, in effect, that he be awarded the Purple Heart for his service in the Persian Gulf War.

3. The applicant states, In effect, that he was on a semi-truck supervising the unloading of supplies and food for our front-line troops in the Persian Gulf War. They were shelled by salvos of shells, and in most cases, they could jump for cover. On this particular day, the salvos were doubled and difficult to figure, which would come close to them. They heard one coming in and went for cover. They came back to work and another was on its way. So they jumped for cover once again. The salvo was close and the concussion caught him in mid air and slammed him to the ground. He hit hard on his back and legs and could barely move. Because he was the noncommissioned officer in charge, he could not go on sick call until 24 hours later; then, he had to wait all day to get medically checked and all he got was pain pills.

4. He adds that his service-connect injuries, then and now, were so intense he was unable to send in his request previously.

5. In support of his application, the applicant submitted a copy of two letters directed to a Veteran's Service Center Manager in Jackson, Mississippi, protesting cuts in his disability income, requesting back pay that he says he is due, and action on those "qualified, registered, medical reports" that he claims to have submitted to that agency pertinent to his disability claim.

6. The applicant’s military records show that the applicant was honorably discharged from the Army National Guard on 3 December 1997 in the rank and pay grade, Sergeant First Class, E-7, under the provision of Paragraph 8-26BB, National Guard Regulation 600-200, based on his attainment of maximum allowable age, and was assigned to the Retired Reserve. On 4 December 1997, he was placed on the retired list in the rank and pay grade, Master Sergeant,
E-8. On his retirement date, he had 41 years, 10 months, and 24 days total service for pay. Throughout his service in the National Guard, the applicant earned the following awards and decorations which are shown in Block 15 of his National Guard Bureau (NGB) Form 22: Army Service Ribbon; National Defense Service Medal with 1 bronze service star; Armed Forces Reserve Medal with 4 Hour Glass Devices; Army Reserve Components Achievement Medal with 5 Oak Leaf Clusters; Humanitarian Service Medal with 1 bronze service star; Southwest Asia Service Medal with 2 bronze service stars; Meritorious Unit Commendation; Army Commendation Medal; Mississippi Medal of Efficiency; Mississippi Commendation Medal, Mississippi Longevity Medal (9 Awards); Mississippi War Medal; Mississippi Emergency Service Medal; and the Army Reserve Components Overseas Training Ribbon.

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7. The DD Form 214, Certificate of Release or Discharge from Active Duty, with an effective date of 23 August 1991, issued the applicant on his honorable release from active duty following his return from deployment to Southwest Asia has the following awards and decorations shown in Block 13 (Decorations, Medals, Badges, Commendations, Citations and Campaign Ribbons Awarded or Authorized) and continued in Block 18 (Remarks): Army Service Ribbon; National Defense Service Medal with 1 bronze service star; Armed Forces Reserve Medal; Army Reserve Components Achievement Medal with 3 Oak Leaf Clusters; Humanitarian Service Medal with 1 bronze service star; Army Reserve Components Overseas Training Ribbon; and the Southwest Asia Service Medal with 2 bronze service stars

8. There are no orders in the applicant's service personnel records, and the applicant has provided none, indicating that he was awarded or that he was recommended for award of the Purple Heart while he was on active duty in the Persian Gulf War.

9. The applicant was awarded the Army Commendation Medal for outstanding service for the period 6 January 1991 through 22 July 1991 by Permanent Orders 162-10 published by the 593rd Area Support Group, dated 23 July 1991. The Army Commendation Medal does not appear in Block 13 of the applicant's DD Form 214.

10. Item 9, of the applicant's DA Form 2-1, shows that he was awarded the Kuwait Liberation Medal awarded by the Government of Kuwait (KLM-K) and the Kuwait Liberation Medal awarded by the Kingdom of Saudi Arabia (KLM-SA) for his service in the Persian Gulf War. These awards were omitted from his NGB Form 22 and from the applicant's DD Form 214.

11. There is no entry in Item 4 (Assignment Considerations), of his DA Form 2-1, Part 2, Personnel Qualification Record, to support his contention that he was wounded in action against a hostile enemy. Item 9 (Awards, Decorations and Campaigns) of the DA Form 2-1, is void of an entry reflecting award of the Purple Heart.

12. In a Standard Form (SF) 93, Report of Medical History, dated 20 August 1972, which was completed by the applicant while he was undergoing a periodic physical examination, he reported that he had been hospitalized and treated for strained back muscles in Hattiesburg, Mississippi, in 1956.

13. The applicant visited the 820th Station Hospital, Camp Shelby, Mississippi, on 4 June 1985, after he reportedly fell off his feet when bringing a patient to the hospital. The SF 600, Chronological Record of Medical Care, which was

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prepared to chronicle this visit to the treatment facility, does not show the level of treatment or medications that were prescribed, if any, in response to this complaint.

14. On 5 August 1989, the applicant received treatment for a pinched nerve in the left hip, which allegedly was incurred in a fall. No other detail about this alleged injury was entered in medical records. Tylenol was prescribed for the pain, as was a non-steroidal anti-inflammatory drug.

15. The applicant was ordered to active duty and deployed in support of the Persian Gulf War. He served in Operation Desert Shield/Desert Storm during the period 5 January 1991 through 23 July 1991. There are no entries in his medical records to indicate that he sought treatment for any injury or illness during this period.

16. On 25 July 1991, the applicant underwent a demobilization physical examination at Lyster Army Hospital, Fort Rucker, Alabama. A DA Form 4700, Medical Record – Supplemental Medical Data, was completed. To the question, what disease or injuries did you have while in the Southwest Asia region? The applicant responded, left knee injury; on running, pain resolving. Neither the specific cause of the alleged injury nor the date of the alleged injury was given. The applicant's complaint of pain in his left knee with exercise was evaluated. An X-Ray was taken of his knee. The X-Ray showed an increase in the degenerative joint disease with Southwest Asian Service under line of duty. The applicant made no report to attending medical personnel of an injury sustained while under attack by enemy artillery or other weapons fire.

17. Following the examination, conducted on an outpatient basis, for a "left ACL [anterior cruciate ligament] deficient knee.", a DA Form 2173, Statement of Medical Examination and Duty Status, was prepared on 25 July 1991. Block 15 of the form has the following entry; "Activated National Guard member who related chronic left knee pain since activation. No prior history of known problems. He was sent to Ortho for consultation from the demob site." Neither the specific cause of the alleged injury nor the date of the alleged injury was given. The applicant made no report to attending medical personnel to relate the injury being incurred while under attack by enemy artillery or other weapons fire. This examination was treated as an informal line of duty investigation with the conclusion being, "In the line of duty."

18. On 12 August 1991, the applicant went to the Primary Care Clinic, Keesler Air Force Base, Mississippi. He went there seeking treatment for a painful left knee which he stated had worsened while he was in Saudi Arabia. On examination, the knee was found with mild effusion/swelling from mild/moderate

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crepitus. Mild anterior cruciate ligament (ACL) laxity was noted. The attending physician opined that the left knee pain was probably from degenerative joint disease and ACL laxity. The applicant made no report to the attending physician of the injury being sustained in combat or otherwise while he was deployed to Southwest Asia.

19. On 21 August 1991, the applicant went to the Primary Care Clinic, Keesler Air Force Base, Mississippi. While there to receive treatment for another complaint, he added that his left knee was still painful. The SF 600 that was prepared to document the clinic visit states that the "lower back pain is getting better. Spinal strain resolving."

20. On 25 August 1991 the applicant was seen again on a follow up basis at the US Air Force Medical Center, Keesler Air Force Base, Mississippi. The notation on the SF 600 indicates that this follow up is for his back (EPT). It continues, "Aggravated by strenuous work while in Southwest Asia." No report of injury related to an enemy artillery or other weapons attack was made.

21. On 18 September 1991, a second DA Form 2173 was completed. According to information recorded in Block 9 (Hour and Date Examined), the applicant had been examined on 6 August 1991 for "Right sacroiliac strain; diarrhea, possible parasitic in nature, and left knee strain." Block 15 of the form has the following entry, in Feb 91, "AD soldier jumped from back of truck in Saudi Arabia and injured left knee….is awaiting orthopedic evaluation." The specific reason that prompted the applicant to jump from the back of a truck was not given. The applicant made no report to attending medical personnel to relate the injury being incurred while under attack by enemy artillery or other weapons fire. This examination was treated as a formal line of duty investigation with the conclusion being, "In the line of duty."

22. On 10 April 1994, the applicant underwent a periodic physical examination. An entry appears on the SF 93, Report of Medical History, which he completed which states, "December 26, 1979, Right Knee, Coast Medical Center." An SF 88 of the same date shows an entry that corresponds to the above. The entry made by the examining physician, states that the applicant has a right knee medial surgical scar. An added entry is found in Item 25 (Physician's summary and elaboration of all pertinent data) of the SF 93 that states he had injured his left knee in Desert Storm. The physician imposed a T-3 (Temporary 3) profile under the P and L of the PULHES Series and noted that an orthopedic evaluation be made and that the applicant was not to participate in physical training until the evaluation was completed.

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23. Army Regulation 600-8-22 (Military Awards) provides, in pertinent part, that the Purple Heart (PH) is awarded for a wound sustained as a result of hostile action. Substantiating evidence must be provided to verify that: (a) the wound was the result of hostile action; (b) the wound required medical treatment; and (c) the medical treatment was made a matter of official record.

24. Army Regulation 40-501, chapter 7, physical profiling, provides that the basic purpose of the physical profile serial system is to provide an index to the overall functional capacity of an individual and is used to assist the unit commander and personnel officer in their determination of what duty assignments the individual is capable of performing, and if reclassification action is warranted. Four numerical designations (1-4) are used to reflect different levels of functional capacity in six factors (PULHES): P-physical capacity or stamina, U-upper extremities, L-lower extremities, H-hearing and ears, E-eyes, and S-psychiatric. Numerical designator 1 under all factors indicates that an individual is considered to possess a high level of medical fitness and, consequently, is medically fit for any military assignment. Numerical designators 2 and 3 indicate that an individual has a medical condition or physical defect which requires certain restrictions in assignment within which the individual is physically capable of performing military duty. The individual should receive assignments commensurate with his or her functional capacity. Numerical designator 4 indicates that an individual has one or more medical conditions or physical defects of such severity that performance of military duty must be drastically limited. The numerical designator 4 does not necessarily mean that the individual is unfit because of physical disability as defined in Army Regulation 635-40.

CONCLUSIONS:

1. There is no evidence, and the applicant has provided none, that would indicate that the applicant was wounded in action against a hostile enemy. In the absence of evidence that the applicant was wounded as a result of hostile action or treated for wounds sustained as a result of hostile action, there is insufficient evidence upon which to base award of the Purple Heart in this case.

2. The applicant reported on a SF 93, dated 20 August 1972, that he had been hospitalized and treated for strained back muscles in Hattiesburg, Mississippi, in 1956. The actual date and circumstances were not given. The applicant enlisted in the National Guard on 9 January 1956.

3. The applicant was treated and released at the 820th Station Hospital, Camp Shelby, Mississippi, on 4 June 1985, after he reportedly fell off his feet when bringing a patient to the hospital.

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4. On 5 August 1989, the applicant received treatment for a pinched nerve in the left hip that allegedly was incurred in a fall.

5. The evidence of record shows that the applicant experienced pain in his back in varying degrees throughout his military career, beginning in 1956. The evidence of record also shows that the injury or injuries that he sustained on 4 June 1985 may have been aggravated while he served in Operation Desert Shield/Desert Storm. There is no evidence of new injuries caused as a direct result of enemy activity on the battlefield.

6. The applicant was awarded the Army Commendation Medal for outstanding service. The Army Commendation Medal does not appear in Block 13 of the applicant's DD Form 214. It would be appropriate to add this award to the DD Form 214 at this time.

7. The applicant was awarded the Kuwait Liberation Medal, awarded by the Government of Kuwait (KLM-K), and the Kuwait Liberation Medal, awarded by the Kingdom of Saudi Arabia (KLM-SA), for his service in the Persian Gulf War. These awards are not shown on his NGB Form 22 and DD Form 214. These service awards should also be added to the above forms at this time.

8. In view of the foregoing, the applicant’s records should be corrected as recommended below.

RECOMMENDATION:

1. That all Department of the Army records related to this case be corrected by adding the already awarded Army Commendation Medal and the Kuwait Liberation Medal, awarded by the Government of Kuwait (KLM-K), and the Kuwait Liberation Medal, awarded by the Kingdom of Saudi Arabia (KLM-SA), to the applicant's DD Form 214 with an effective date of 23 August 1991.

2. That insofar as records of the Mississippi Army National Guard are concerned, the Army Board for the Correction of Military Records recommends that the Adjutant General of the State of Mississippi correct all records related to this case by adding the Kuwait Liberation Medal, awarded by the Government of Kuwait (KLM-K), and the Kuwait Liberation Medal, awarded by the Kingdom of Saudi Arabia (KLM-SA), to Block 15 of the NGB Form 22 that was issued to the applicant on his separation from the Army National Guard of Mississippi on 2 December 1997.

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3. That so much of the application as is in excess of the foregoing be denied.

BOARD VOTE:

__mhm___ __dsj___ __jam___ GRANT AS STATED IN RECOMMENDATION

________ ________ ________ GRANT FORMAL HEARING

________ ________ ________ DENY APPLICATION



                           Melvin H. Meyer
                  ______________________
                  CHAIRPERSON

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INDEX

CASE ID	AR2003084281
SUFFIX
RECON
DATE BOARDED	20030520
TYPE OF DISCHARGE
DATE OF DISCHARGE
DISCHARGE AUTHORITY
DISCHARGE REASON
BOARD DECISION	GRANT
REVIEW AUTHORITY
ISSUES 1.	107.0000
2.	107.0015
3.
4.
5.
6.