RECORD OF PROCEEDINGS


	IN THE CASE OF:	  


	BOARD DATE:	  4 October 2007
	DOCKET NUMBER:  AR20070005520 


	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.  


Ms. Catherine C. Mitrano

Director

Ms. Joyce A. Wright

Analyst


The following members, a quorum, were present:


Ms. Susan A. Powers

Chairperson

Mr. Edward E. Montgomery  

Member

Mr. Qawiy A. Sabree

Member

	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, as the mother of the deceased former service member (FSM), in effect, that the FSM be awarded the Purple Heart.

2.  The applicant states, in effect, that the FSM was killed in Iraq in May 2005 and that the finding of accidental death should be changed to reflect death as a result of hostile action.  She states that the evidence in the accident investigation report supports the conclusion that the conduct of the Iraqi civilians which caused the vehicle accident was intentional and hostile.  

3.  The applicant provides a self-authored summary of her perception and understanding of the events which led to the death of her son.  

4.  In support of her request the applicant provides several unsigned/unsworn statements from fellow Soldiers who served with her son, the FSM. 

CONSIDERATION OF EVIDENCE:

1.  The FSM's record shows he enlisted in the Regular Army on 19 May 2003.  He successfully completed basic combat training and advanced individual training at Fort Knox, Kentucky.  On completion of his OSUT (one station unit training), he was awarded the military occupational specialty (MOS), 19K, M-1 Armor Crewman.  The FSM was promoted to sergeant (SGT/E-5) on 1 March 2005.

2.  The FSM was deployed to Iraq in support of Operation Iraqi Freedom.  

3.  The DD Form 1300 (Report of Casualty) submitted on 21 July 2005 established that the FSM died outside a medical treatment facility as a result of injuries incurred in a non-hostile, vehicular accident.  

4.  The applicant provided several unsworn and unsigned statements from Soldiers who allegedly served with her son, the FSM.  They describe the events that occurred prior to and on the date of the FSM's death. 

5.  On 25 January 2007, the Chief, Military Awards Branch, U. S. Army Human Resources Command (AHRC), prepared a memorandum to a Member of Congress, in reply to his letter, dated 17 January 2007, on behalf of the applicant concerning her desire to have her late son, the FSM, awarded the Purple Heart for injuries he received during his service in Iraq.  After AHRC reviewed the criteria for award of the Purple Heart and the casualty report for the FSM, they advised her he was ineligible for this award because he died in an incident that had been classified, as "non-hostile."  

6.  AHRC advised the applicant if she felt that the decision was unfair or unjust, she had the right to appeal to the Army Board for Correction of Military Records (ABCMR).  The ABCMR, was the highest authority for adjudicating these matters. 

7.  Army Regulation 600-8-22 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.   The regulation further provided examples of some events or situations that clearly do not justify award of the Purple Heart.  These examples include:  accidents, explosive, aircraft, vehicular, and other accidental wounding not related to or caused by enemy action.

DISCUSSION AND CONCLUSIONS:

1.  The applicant's request for her son, the FSM, to be awarded the Purple Heart and the supporting evidence were carefully considered.  However, by regulation, in order to support award of the Purple Heart, there must be evidence confirming that the wound for which the award is being considered was received as a direct result of, or was caused by hostile enemy action. 

2.  The evidence shows that the FSM died in an incident that was classified as, "non-hostile."  Unfortunately, Soldiers who are accidentally injured or killed in combat zones are not entitled to award of the Purple Heart.  The Board noted that the FSM was not recommended for or awarded the Purple Heart by proper authority at the time of his death.

3.  The applicant contends that the findings in the accident report should be changed to intentional and hostile.  The evidence, she states, supports the conclusions that conduct by Iraqi civilians caused the vehicle accident and their actions were hostile.  

4.  The unsworn and unsigned statements provided by the applicant along with her claim were considered; however, they are inadequate and do not support a change to the information recorded and reported in the report of casualty.  Each of these Soldiers was questioned at the time the accident was being investigated. It is logical to assume they provided a sworn/signed statement at that time. Assuming statements were submitted to investigators by these Soldiers these statements would have more value in deciding the issues(s) before the Board than the currently available statements.

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

6.  In view of the foregoing, there is insufficient basis for granting the applicant's request.

BOARD VOTE:

__SAP___  __EM___  __QS___  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

1.  Notwithstanding the staff DISCUSSION AND CONCLUSIONS above, the Board unanimously determined during their review that the evidence presented was sufficient to warrant a recommendation for relief.  The Board believes that the collision, on 22 May 2005, that resulted in the death of the former service member concerned was cause by hostile action and he is therefore entitled to award of the Purple Heart.

2.  As a result the Board recommends that all Department of the Army Records of the former service member be corrected by posthumously awarding him the Purple Heart for the incident resulting in his death and issuing an appropriate document to reflect this award.




___Susan A. Powers_________
          CHAIRPERSON




INDEX

CASE ID
AR20070005520
SUFFIX

RECON
YYYYMMDD
DATE BOARDED
20071004
TYPE OF DISCHARGE
HD
DATE OF DISCHARGE
20050522
DISCHARGE AUTHORITY
AR . . . . .  
DISCHARGE REASON

BOARD DECISION
GRANT
REVIEW AUTHORITY

ISSUES         1.
107
2.

3.

4.

5.

6.