RECORD OF PROCEEDINGS


	IN THE CASE OF:	  


	BOARD DATE:	  06 May 2008
	DOCKET NUMBER:  AR20080003752 


	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.




Director



Analyst
      The following members, a quorum, were present:




Chairperson



Member



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 to have his records updated to reflect his foreign service, all awards and decorations that he is entitled to receive, such as the Purple Heart for being injured on active duty during a time of war, and to be promoted to the rank of sergeant (SGT) E-5. 

2.  The applicant states that he was injured on active duty during a time of war and should have been awarded the Purple Heart.  He also states that he should have received a field promotion to the rank of sergeant and his records should reflect his foreign service and all awards that he is entitled to receive, such as the Global War on Terrorism Service Medal (GWOTSM).

3.  The applicant provides a copy of his welcome letter to his unit in Italy, a copy of an accident report, a copy of his DD Form 214, a copy of his orders transferring him to Walter Reed Army Medical Center (WRAMC), a copy of his casualty report and a copy of the line of duty (LOD) investigation.  

CONSIDERATION OF EVIDENCE:

1.  Title 10, U.S. Code, section 1552(b), provides that applications for correction of military records must be filed within 3 years after discovery of the alleged error or injustice.  This provision of law also allows the Army Board for Correction of Military Records (ABCMR) to excuse an applicant’s failure to timely file within the 3-year statute of limitations if the ABCMR determines it would be in the interest of justice to do so.  While it appears the applicant did not file within the time frame provided in the statute of limitations, the ABCMR has elected to conduct a substantive review of this case and, only to the extent relief, if any, is granted, has determined it is in the interest of justice to excuse the applicant’s failure to timely file.  In all other respects, there are insufficient bases to waive the statute of limitations for timely filing.

2.  The applicant’s records, though somewhat incomplete, show that he enlisted in the Regular Army in Jacksonville, Florida on 13 August 1993 for a period of 4 years and training as a unit level communications maintainer.  He successfully completed basic, advanced and airborne training and was assigned to an airborne battalion at Fort Polk, Louisiana.  He was advanced to the pay grade of E-4 on 1 May 1995. 

3.  On 20 June 1997, he reenlisted for a period of 3 years, assignment to Fort Irwin, California and a selective reenlistment bonus (SRB).

4.  On 11 August 1999, he reenlisted for a period of 3 years and on 15 February 2000, he was transferred to an airborne battalion in Vicenza, Italy.

5.  On 24 June 2000, while participating in an airborne exchange operation in Kecskemet, Hungary, the applicant was injured in a parachute accident that occurred when he exited the helicopter and executed an improper parachute landing fall (PLF) when he hit the tarmac.  He was dragged approximately 200 meters until another Soldier disengaged his parachute.  He suffered head, hand and leg injuries and was transported to Kecskemetha Hospital and was then medically evacuated to Landstuhl Army Medical Center in Germany, where he was treated before being medically evacuated to WRAMC on 1 July 2000.

6.  He remained at WRAMC until 10 May 2003, when he was released from active duty (REFRAD) due to physical disability and was placed on the Temporary Disability Retired List in the pay grade of E-4, with a physical disability rating of 40%.  He had served 9 years, 8 months and 28 days of total active service and his DD Form 214 issued at the time of his REFRAD shows he was awarded the Army Achievement Medal, the Army Good Conduct Medal, the National Defense Service Medal, the Army Service Ribbon, and the Parachutist Badge.  It also reflects no foreign service.

7.  The applicant served approximately 4 months and 18 days of foreign service before he was medically evacuated to WRAMC.

8.  A review of the available records fails to show any evidence to suggest that he was promoted to the pay grade of E-5 either before he was injured or before his being placed on the TDRL.  It should also be noted that it is standard procedure within the Physical Disability Evaluation System (PDES) to conduct a grade determination of individuals being placed on the TDRL or permanently retired.  

9.  Human Resources Command Message (Date Time Group 17 March 2004) disseminated implementing instructions for award of the Global War on Terrorism Service Medal.  This award is designated for Soldiers who have participated in or served in support of Global War on Terrorism Operations outside of the designated area of eligibility determined for award of the Global War on Terrorism Expeditionary Medal on or after 11 September 2001 to a date to be determined.  All Soldiers on active duty, including Reserve Component Soldiers mobilized or National Guard Soldiers activated, on or after 11 September 2001 to a date to be determined having served 30 consecutive days or 60 nonconsecutive days are authorized this award.  

10.  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 by medical personnel, and the medical treatment must have been made a matter of official record.
  
DISCUSSION AND CONCLUSIONS:

1.  The applicant served 4 months and 18 days of foreign service before he was medically evacuated to WRAMC.  Accordingly, he is entitled to have that service reflected in block 12f. of his DD Form 214.     

2.  The applicant also meets the requirements for award of the GWOTSM by virtue of being on active duty and serving outside the continental United States.  Therefore, it would be in the interest of justice to award him the GWOTSM at this time and add it to his records.  

3.  The applicant has failed to show through the evidence submitted with his application and the evidence of record, sufficient evidence to support his contention that he should be promoted to the pay grade of E-5.  Therefore, in the absence of such evidence, there appears to be no basis to grant his request to be promoted.

4.  While it is regrettable that the applicant was seriously injured in a parachute accident, his injuries were not the result of enemy action and thus do not qualify for award of the Purple Heart.  Therefore, there appears to be no basis to award him the Purple Heart for his injuries.   

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

__XXX __  __XXX__  __XXX__   GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION




BOARD DETERMINATION/RECOMMENDATION:

1.  The Board determined that the evidence presented was sufficient to warrant a recommendation for partial relief.  As a result, the Board recommends that all Department of the Army records of the individual concerned be corrected by showing that the applicant served 4 months and 18 days of foreign service and by awarding him the GWOTSM.

2.  The Board further determined that the evidence presented is insufficient to warrant a portion of the requested relief.  As a result, the Board recommends denial of so much of the application that pertains to promotion to the pay grade of E-5 and award of the Purple Heart.

3.  The Board wants the applicant and all others concerned to know that this action in no way diminishes the sacrifices made by the applicant in service to the United States during the War on Terrorism.  The applicant and all Americans should be justifiably proud of his service in arms.
  




      ___        XXX                ___
                CHAIRPERSON

ABCMR Record of Proceedings (cont)                                         AR20080003752



5


DEPARTMENT OF THE ARMY
BOARD FOR CORRECTION OF MILITARY RECORDS
1901 SOUTH BELL STREET 2ND FLOOR
ARLINGTON, VA  22202-4508