IN THE CASE OF:	  

	BOARD DATE:	  1 July 2008

	DOCKET NUMBER:  AR20080004787 


THE BOARD CONSIDERED THE FOLLOWING EVIDENCE:

1.  Application for correction of military records (with supporting documents provided, if any).

2.  Military Personnel Records and advisory opinions (if any).


THE APPLICANT'S REQUEST, STATEMENT, AND EVIDENCE:

1.  The applicant requests award of the Purple Heart.

2.  The applicant states that an Iraqi was determined to take his (the applicant’s) weapon and only disengaged after he took the safety off and jammed his rifle in the Iraqi’s face, drawing blood.  The Iraqi did not just walk up to the truck; he was attempting to disarm the applicant.  The Iraqi took him out of action.  As a direct result of the Iraqi’s action he had to have surgery on his spine.  He has a disability rating of 20 percent.

3.  The applicant provides a DA Form 2173 (Statement of Medical Examination and Duty Status) with three attached statements (two sworn and one unsworn); his DD Form 214 (Certificate of Release or Discharge from Active Duty) for the period ending 22 May 2006; a Noncommissioned Officer Evaluation Report for the period 1 December 2006 through 30 November 2007; a DA Form 4836 (Oath of Extension of Enlistment or Reenlistment); a DA Form 3349 (Physical Profile); two articles from Gazettenet; a line of duty determination, dated 20 June 2005; a Memorandum For Vocational Rehabilitation, dated 19 January 2006; and a memorandum, Subject:  Medical Recommendation for (the applicant), dated June 2003. 

4.  The applicant also provided a letter, dated 16 June 2006, from the Department of Veterans Affairs with 8 attached letters (dated 4 June 2004,         19 May 2005, 27 July 2005, 9 September 2005, 19 September 2005, 14 October 

2005, 19 December 2005, and 7 March 2006); a Purple Heart Request, dated    25 May 2006, with the disapproval action from the U. S. Army Human Resources Command (USAHRC), dated 7 July 2006; and a follow up response to USAHRC’s disapproval action from his wife, dated 11 November 2006.

CONSIDERATION OF EVIDENCE:

1.  After having had prior service, the applicant enlisted in the Army National Guard on 1 August 2001.  He was ordered to active duty on 23 February 2003 and arrived in Kuwait/Iraq on 12 April 2003.

2.  In a sworn statement from an E-7 who was with the applicant during the incident, many Iraqi people enclosed their convoy while it was halted at an intersection on or about 24 April 2003.  One adult male Iraqi moved up along side the fuel truck and came toward the front of their truck.  His posture and stature seemed different from the other Iraqi people, who were staying away from the man.  The E-7 lost eyesight of the Iraqi as the Iraqi neared the applicant’s side of the vehicle.  Then he heard the Iraqi begin to hurry or run along the side of the vehicle.  The next thing the E-7 knew, the Iraqi had grabbed the applicant’s rifle, which had been pointed outside the passenger window for security.  The applicant’s seat belt was fastened, so when the applicant spun to meet the Iraqi and block the window only the upper portion of his torso was allowed to turn.  The Iraqi was on the front rung of the truck and was trying to take the applicant’s weapon.  After a verbal and physical shove, the Iraqi did not move.  The applicant moved his selector from Safe to Semi and lunged the weapon into the Iraqi’s face.  More yelling and shoving resulted in the Iraqi falling to the ground and leaving the area.

3.  The applicant departed Iraq on 13 June 2003 as a result of his injury.  He was given a physical profile for his back injury on 17 January 2006.  He was released from active duty on 22 May 2006.  

4.  On 25 May 2006, the applicant’s commander forwarded a request to USAHRC recommending the applicant be awarded the Purple Heart for the injuries he received during the incident.

5.  On 7 July 2006, the Military Awards Branch, USAHRC, disapproved the request for award of the Purple Heart, stating the applicant’s back injury was not the result of enemy action.


6.  The applicant provided a copy of two articles from Gazettenet relating the story of a Soldier who was awarded the Purple Heart.  That Soldier had been in a convoy when the Soldiers saw movement and shot off a star cluster.  The device ricocheted and ended up between the Soldier’s legs, and he was severely burned.  

7.  Army Regulation 600-8-22 (Military Awards) states the Purple Heart is awarded to any member of an Armed Force who has been wounded or killed in any action against an enemy of the United States.  The wound must have required treatment by a medical officer and records of medical treatment for wounds or injuries received in action must have been made a matter of official record.  When contemplating an award of the Purple Heart, the key issue commanders must take into consideration is the degree to which the enemy caused the injury.  The fact the proposed recipient was participating in direct or indirect combat operations is a necessary prerequisite, but is not sole justification for award.

DISCUSSION AND CONCLUSIONS:

1.  It is often difficult to assess entitlement to the Purple Heart during conflicts where the enemy does not always wear a uniform.  This appears to be the situation in the applicant’s case.

2.  In the E-7’s sworn statement, the E-7 stated that one adult male Iraqi came toward the front of their truck and that the Iraqi’s posture and stature seemed different from the other Iraqi people, who were staying away from the man.

3.  That Iraqi’s posture and stature could have seemed different, and the other Iraqi people could have stayed away from him, for a number of different reasons. It is possible the Iraqi was an enemy soldier in civilian clothes, but it is difficult (although not impossible) to think of a trained soldier putting himself into a fighting position where the odds were extraordinarily against him; or it is possible he was a terrorist (given the “posture and stature” comment a terrorist leader would be more likely, but then again one would think a terrorist leader would have known enough to blend in with his surroundings).  

4.  It is also possible that the Iraqi was “merely” a criminal, perhaps a powerful and well-known one, who was trying to obtain a weapon in order to make a quick profit selling it.  Another possibility is that the Iraqi was “merely” a desperate but formerly well-known and powerful civilian, who saw an opportunity to grab a weapon to use for his personal safety or the safety of his family or business.


5.  The above possible scenarios are not given to imply that the “innocent” scenario was the more likely possibility.  They were given only to point out that any one of several circumstances were possible, not all of them related to enemy action.  

6.  The applicant provided a copy of two articles relating the story of a Soldier who was awarded the Purple Heart when the Soldiers in a convoy saw movement and shot off a star cluster.  The device ricocheted and ended up between the Soldier’s legs, and he was severely burned.  Without knowing all of the facts behind the award of the Purple Heart in that case (i.e., the statements supporting award of the Purple Heart in that case are not available), it cannot be determined how similar the two cases are.  Even if those statements were available, it would not be fitting for the Board to comment upon the propriety of awarding the Purple Heart in that case since the awards authority already made its favorable decision and the Board would not overturn that favorable decision (unless that Soldier requested that it do so).  

7.  However, in the applicant’s case, the awards authority disapproved the award of the Purple Heart and the applicant is, in effect, asking the Board to overturn that unfavorable decision.  Unfortunately, there is insufficient evidence to show that it was in fact an enemy soldier (a regular soldier or a terrorist) whose actions resulted in the applicant’s injuries and therefore insufficient evidence that would warrant award of the Purple Heart.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

__xxx___  __xxx___  __xxx___  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

1.  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.


2.  The Board wants the applicant and all others concerned to know that this action in no way diminishes the sacrifices made by him in service to our Nation.  The applicant and all Americans should be justifiably proud of his service in arms.


							XXX
	_______________________
      	CHAIRPERSON
      
I certify that herein is recorded the true and complete record of the proceedings of the Army Board for Correction of Military Records in this case.

ABCMR Record of Proceedings (cont)                                         AR20080004787



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ABCMR Record of Proceedings (cont)                                         AR20080004787



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