MEMORANDUM OF CONSIDERATION


         IN THE CASE OF:
        

         BOARD DATE: 26 August 2003
         DOCKET NUMBER: AR2003090067

         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
Mr. Joseph A. Adriance		Analyst

The following members, a quorum, were present:

Mr. Raymond J. Wagner		Chairperson
Mr. Robert L. Duecaster		Member
Ms. Marla J. Troup		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: In effect, that he be awarded the Purple Heart (PH).

APPLICANT STATES: In effect, that he received an injury to his back while serving in Operation Desert Storm. He claims that he fell into an enemy trench and his injury was treated at a field hospital. In support of his application, he provides the first page of a Report of Medical Examination (SF 88), copies of military medical treatment records for the period between January and March 1991, a Department of Veterans Affairs (DVA) rating decision, and a letter of support from the National Service Office of the Disabled American Veterans (DAV).

EVIDENCE OF RECORD: The applicant's military records were not made available to the Board for review. However, there were sufficient documents in the reconstructed record to allow the Board to conduct a fair and impartial review of the case.

The available evidence includes the applicant’s separation document (DD Form 214) that was issued to him at the completion of his 5 month and 5 day period of active duty service from 3 January through 7 June 1991. This document shows that while serving as a member of the Army National Guard (ARNG), he was ordered to active duty in support of Operation Desert Shield/Storm.

The DD Form 214 as amended also confirms that he served in Southwest Asia from 26 January through 14 May 1991, and that based on this service he earned the Southwest Asia Service Medal with 2 bronze service stars. The PH is not included in the list of earned awards contained in Item 13 (Decorations, Medals, Badges, Citations, and Campaign Ribbons Awarded or Authorized) of the original DD Form 214 or in the corrected Item 13 entries contained in a corrected separation document (DD Form 215) issued on 26 January 1996.

The applicant authenticated the DD Form 214 with his signature in Item 21 (Signature of Member Being Separated) on the date of his release from active duty, thereby verifying that the information contained therein, to include the list of earned awards, was correct at the time the document was prepared and issued on 7 June 1991. There is no indication that he raised the PH issue at that time he was separated.

The applicant provides copies of medical treatment records and of the first page of his separation physical examination. These medical documents confirm that he was treated for a back injury he received on 27 February 1991 as a result of his having fell into a trench. The initial treatment record and subsequent records of treatment for this back injury do not indicate it was caused by or received as a result of enemy action.

The applicant also provides a copy of a DVA rating decision, dated 25 May 1995, which indicates he received a 10 percent disability rating for a service connected injury to his lumbar spine.

On 3 October 2002, a National Service Officer of the DVA provided a letter that supports the applicant’s claim that he received his back injury while engaged in action against the enemy.

Army Regulation 600-8-22 (Military Awards) prescribes Army policy and criteria concerning individual military awards. Paragraph 2-8 contains the regulatory guidance pertaining to awarding the PH. It states, in pertinent part, that the PH is awarded to any member of an Armed Forces who, while serving in any capacity with one of the Armed Services after 5 April 1917, has been wounded or killed as a result of hostile action by an enemy. A wound is defined as an injury to any part of the body from an outside force or agent sustained as a result of enemy action.

Paragraph 2-8b(5) of the awards regulation provides the following examples of injuries or wounds which clearly do not qualify for award of the PH. Included in this list of examples are being wounded or injured as a result of accidents not related to or caused by enemy action.

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 Board notes the applicant’s contention that he is entitled to the PH for a back injury he received while serving in Southwest Asia during Operation Desert Storm. However, it finds insufficient evidence to support this claim.

2. By regulation, in order to support award of the PH the wound or injury on which the award is based must have been the result of enemy action. The regulation also provides examples of injuries or wounds which clearly do not qualify for award of the PH. Included in this list are accidental wounds or injuries received that are not related to or caused by enemy action.

3. The Board also carefully considered the DVA rating decision and the DAV letter of support provided by the applicant. However, while these documents confirm the applicant’s back injury, neither provide any independent evidence that confirms that the back injury was directly caused by or related to enemy action.

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4. The evidence of record confirms that the applicant was treated for a back injury he received while serving in Southwest Asia during Operation Desert Storm. However, none of the medical treatment records pertaining to this injury contain any indication that the injury was caused by or related to enemy action.

5. The Board also finds no evidence that shows that the applicant was recommended for or awarded the PH at the time, when both the members of his chain of command and medical treatment officials would have been very much aware of the circumstances and events surrounding his injury. Further, the applicant signed his separation document on 7 June 1991, and there is no indication that he raised the PH issue at the time.

6. The Board wishes to advise the applicant that it does not question the veracity of his claim or that he was injured while in the performance of his duty during Operation Desert Storm. However, based on the lack of supporting records and evidence to confirm his injury was the result of enemy action, it regrettably concludes that the regulatory burden of proof necessary to support award of the PH has not been satisfied in this case. Thus, the Board finds insufficient evidence to support the applicant’s claim of entitlement to the PH, and it is regrettably compelled to deny the requested PH in the interest of all those who served during Operation Desert Storm and who faced similar circumstances.

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

__RJW__ __MT__ __RLD _ DENY APPLICATION

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

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INDEX

CASE ID	AR2003090067
SUFFIX
RECON
DATE BOARDED	2003/08/DD
TYPE OF DISCHARGE	HD
DATE OF DISCHARGE	1991/06/07
DISCHARGE AUTHORITY	AR 635-200
DISCHARGE REASON	Completion of Required Service
BOARD DECISION	DENY
REVIEW AUTHORITY
ISSUES 1. 61	107.0015
2.
3.
4.
5.
`6.