IN THE CASE OF:	  

		BOARD DATE:	        11 SEPTEMBER 2008

		DOCKET NUMBER:  AR20080007153 


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, in effect, that his request for award of the Purple Heart be reconsidered.

2.  The applicant essentially states that at first he was going to accept the previous decision by the Army Board for Correction of Military Records (ABCMR) on his request for award of the Purple Heart, but that it has constantly been on his mind, and he decided to appeal that decision and answer some of the questions brought up in the previous record of proceedings.  He also states, in effect, that because he was assigned to a special unit within the United States Army Special Operations Command (USASOC), he was removed from the rolls of the Regular Army, and there was no contact or involvement with the Regular Army.  All matters were handled internally within the USASOC.  He further states that because of this fact, the 2004 incident in Iraq that he was involved in was never reported or listed with the United States Army Human Resources Command Casualty Branch.  He also disputes the portion of the previous record of proceedings which stated that there was insufficient evidence to show that the enemy caused his lower back problem to a degree that would warrant award of the Purple Heart.  He believes that "lower back pain" is totally different and irrelevant to the subsequent diagnoses of a spinal fracture which required corrective surgery.  He continued by essentially stating that this corrective surgery necessitated the amending of his retirement date.

3.  The applicant provides a memorandum, dated 4 January 2006, which shows his request to change his retirement date from 1 January 2006 to 1 July 2006 was approved; orders, dated 6 January 2006, which amended his scheduled date of separation from 31 December 2005 to 30 June 2006; orders, dated 
1 April 2005, which originally scheduled him to be released from active duty on 31 December 2005 and placed on the retired list on 1 January 2006; and two Standard Form 600 (Medical Record – Chronological Record of Medical Care), dated 21 May 2004 and 31 August 2005 in support of this application.

CONSIDERATION OF EVIDENCE:

1.  Incorporated herein by reference are military records which were summarized in the previous consideration of the applicant's case by the ABCMR in Docket Number AR20060016456, on 7 June 2007.

2.  The two Standard Forms 600, dated 21 May 2004 and 31 August 2005, were previously submitted by the applicant and considered in the previous consideration of his case.  As a result, these documents will not be discussed further in these proceedings.

3.  The crux of the applicant's request for reconsideration is that because he was assigned to a special unit within the USASOC, he was removed from the rolls of the Regular Army, and that there was no contact or involvement with the Regular Army.  All matters were handled internally within the USASOC.  As a result, he essentially contends that the 2004 incident in Iraq that he was involved in was never reported or listed with the United States Army Human Resources Command Casualty Branch.  

4.  During the processing of this case, an advisory opinion was obtained from the USASOC at Fort Bragg, North Carolina.  This advisory opinion, which was prepared by personnel with full knowledge and access to the applicant's records while he was assigned to a special unit within the USASOC, stated that after a thorough review of the applicant's inquiry regarding his request for award of the Purple Heart, his request was not favorably supported by that command.  This advisory opinion also essentially stated that the command could not validate that the injuries incurred by the applicant in 2004 in Iraq were a result of the enemy and, as a result, he was not entitled to receive the Purple Heart.

5.  A copy of the advisory opinion was forwarded to the applicant for his information and possible comment; however, the applicant failed to respond within the time allowed.

6.  Army Regulation 600-8-22 (Military Awards) 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 been treated by military medical personnel, and the medical treatment must have been made a matter of official records.  Each approved award of the Purple Heart must exhibit all of the following factors: wound, injury or death must have been the result of enemy or hostile act; international terrorist attack; or friendly fire; the wound or injury must have required treatment by military medical personnel; and the record of medical treatment must have been made a matter of official Army records.  A physical lesion is not required, however, the wound for which the award is made 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 that commanders must take into consideration is the degree to which the enemy caused the injury.  The fact that the proposed recipient was participating in direct or indirect combat operations is a necessary prerequisite, but is not sole justification for award.

7.  Army Regulation 15-185 (Army Board for Correction of Military Records) prescribes the policies and procedures for correction of military records by the Secretary of the Army, acting through the ABCMR.  This regulation provides that the ABCMR begins its consideration of each case with the presumption of administrative regularity.  The applicant has the burden of proving an error or injustice by a preponderance of the evidence.

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends that his request for award of the Purple Heart should be reconsidered.

2.  The fact that the applicant was assigned to a special unit within the USASOC at the time of his 2004 incident in Iraq was noted.  However, this fact does not appear to have any bearing on whether or not he was awarded the Purple Heart. The USASOC, after performing a thorough review of the applicant's inquiry regarding his request for award of the Purple Heart, determined that they could not validate that the injuries incurred by the applicant in 2004 while in Iraq were a result of the enemy.  Regrettably, absent evidence which conclusively proves, by a preponderance of the evidence, that the applicant was wounded or injured as a result of hostile action, that he was treated for wounds or injuries sustained as a result of hostile action, and that this medical treatment was made a matter of official record, there is insufficient basis upon which to award him 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 to amend the decision of the ABCMR set forth in Docket Number AR20060016456, dated 7 June 2007.

2.  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 throughout his military career, and especially in support of Operations IRAQI FREEDOM and ENDURING FREEDOM.  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)                                         AR20080007153



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ABCMR Record of Proceedings (cont)                                         AR20080007153



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