RECORD OF PROCEEDINGS


	IN THE CASE OF:	  


	BOARD DATE:	  15 March 2007
	DOCKET NUMBER:  AR20060011732 


	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.  


	The Board considered the following evidence: 

	Exhibit A - Application for correction of military records.

	Exhibit B - Military Personnel Records (including advisory opinion, if any).


THE APPLICANT'S REQUEST, STATEMENT, AND EVIDENCE:

1.  The applicant requests award of the Purple Heart.

2.  The applicant states, in effect, on 14 August 2003, while a member of a convoy five miles south of Baghdad International Airport, an explosive device was thrown under the vehicle in which he was riding.  The device exploded under the trailer causing the vehicle to be lifted about 6 to 8 feet off the ground.  The force of the landing caused his lower back to be jammed.  The explosion also blew out 8 tires.  He did not notice any serious injuries until a couple of days later when he was unable to get out of bed without help.  He was medically evacuated to Landstuhl, Germany and then to William Beaumont Army Medical Center, El Paso, Texas.  In December 2003, he underwent a decompressive lumbar laminectomy at L4-5.  In November 2004, due to chronic lumbar pain, he had percutaneous placement of neural stimulation trial leads.

3.  The applicant provides statements from two Soldiers who witnessed the incident; copies of his medical records; and a copy of his Department of Veterans Affairs (DVA) Rating Decision, dated 19 November 2004.

CONSIDERATION OF EVIDENCE:

1.  The applicant, a member of the New Mexico Army National Guard (NMARNG), was ordered to active duty in support of Operation Enduring Freedom.  He served in Kuwait and Iraq from 23 April 2003 through 10 October 2003.  

2.  On 20 December 2004, the applicant was returned to active duty for one day and honorably discharged under the provisions of Army Regulation 635-40, paragraph 4-24b(3), by reason of disability, with a severance pay of $56,829.60.

3.  On 21 December 2004, the applicant was discharged from the NMARNG by reason of medically unfit for retention.  A review of his ARNG Current Annual Statement, dated 13 June 2006, shows the applicant has 20 years, 3 months, and 26 days of creditable service for retirement pay.

4.  The applicant provided two witness statements.  These statements indicate that a vehicle pulled along side the applicant's truck, and someone threw an explosive device under it, exploding the 8 tires.  Immediately after the explosion, the following trucks in the convoy gave cover fire in order to continue the mission. After arriving at Baghdad International Airport, the applicant complained of back pain and hearing problems.
5.  Two months after the incident, the applicant was medically evacuated to Landstuhl for treatment of his back condition.  His medical records show he was then transferred to El Paso where he underwent a bilateral decompressive lumbar laminectomy at L4-5.  In April 2004, he received follow-up care at the DVA Clinic in Albuquerque.  In November 2004, he underwent a percutaneous placement of neural stimulation trial leads.  He was subsequently referred to a Medical Evaluation Board (MEB) and discharged.  In the applicant's first surgical medical report from El Paso, the physician indicated "the patient is a 48-year-old male who developed low back and bilateral leg pain aggravated by standing and walking and relieved by rest."

6.  The applicant's MEB narrative summary (NARSUM) indicates that the applicant was activated in February 2003 and, while playing basketball during the course and scope of physical training in April 2003, sustained a low back strain.  While deployed to Iraq, his back pain worsened as a result of the jarring and jostling imparted to his body while driving a truck.  

7.  Item 13 (Decorations, Medals, Badges, Citations and Campaign Ribbons Awarded or Authorized) of the applicant’s DD Form 214 does not show award of the Purple Heart.

8.  There are no medical records in the available military personnel file that show the applicant sustained wounds as a result of hostile action or that show he was treated for wounds sustained as a result of hostile action.  His medical records show he aggravated his previous back sprain from the jarring and jostling of truck driving.

9.  There are no general orders in the applicant's records to show he was awarded the Purple Heart.

10.  Orders 355-0007, Department of the Army, Headquarters, U.S. Army Air Defense Artillery Center and Fort Bliss, Fort Bliss, Texas, dated 20 December 2004, discharged the applicant by reason of disability.  Additional instructions in the orders state, "(d) Disability is based on injury or disease received in the line of duty (LOD) as a direct Result of Armed Conflict or caused by an instrumentality of war and incurred in the LOD during a war period as defined by law:  NO. (e) Disability resulted from a combat related injury as defined in 
26 USC 104:  NO." 


11.  The applicant submitted a copy of his DVA Rating Decision showing that he is service-connected for post-traumatic stress disorder, rated as 70 percent disabling, and that he was granted entitlement to individual unemployability effective 14 June 2004.

12.  Army Regulation 600-8-22 (Military Awards) provides, in pertinent part, that the Purple Heart is awarded for a wound sustained while in action against an enemy or 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 AND CONCLUSIONS:

1.  The applicant requests award of the Purple Heart.

2.  There are no general orders that show the applicant was awarded the Purple Heart.  There is no evidence in his service personnel records which shows he was wounded or injured as a result of hostile action or treated for such wounds.  The applicant was not evacuated to Landstuhl until two months after the vehicle incident.  His medical records do not indicate that he was wounded or injured as a result of hostile action or treated for such wounds.  The physician's statements indicate that "he developed low back and bilateral leg pain" in one instance; in another, the physician noted the applicant strained his back playing basketball, which was aggravated by his truck driving duties in Iraq.  

3.  The applicant's discharge orders indicate that his disability was not a result of a combat related injury and that his disability was not based on injury or disease in the LOD as a direct Result of Armed conflict or caused by an instrumentality of war and incurred in the LOD during a war period as defined by law.

4.  The witness statements were carefully considered and there is no reason to doubt the veracity of the reports.  However, these statements are insufficient as a basis to establish the applicant's back condition was a result of hostile action.  

5.  In the absence of the evidence that the applicant was wounded or injured as a result of hostile action and treated for those wounds, there is insufficient evidence upon which to base award of the Purple Heart in this case.


6.  In order to justify correction of a military record the applicant must show or it must otherwise satisfactorily appear, that the record is in error or unjust.  The applicant did not submit any evidence that would satisfy this requirement.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

__mkp___  __lcr___  __reb___  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

The evidence presented does not demonstrate the existence of a probable error or injustice.  Therefore, the Board determined that the overall merits of this case are insufficient as a basis for correction of the records of the individual concerned.




						Margaret K. Patterson
______________________
          CHAIRPERSON




INDEX

CASE ID
AR20060011732
SUFFIX

RECON

DATE BOARDED
20070315
TYPE OF DISCHARGE

DATE OF DISCHARGE

DISCHARGE AUTHORITY

DISCHARGE REASON

BOARD DECISION
(DENY)
REVIEW AUTHORITY

ISSUES         1.
107.0015
2.

3.

4.

5.

6.