IN THE CASE OF:	  

		BOARD DATE:	        28 August 2008

		DOCKET NUMBER:  AR20080009633 


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 he was located at the King Abdul Aziz Hospital in Jeddah, Saudi Arabia during the Persian Gulf War.  During a Scud missile alert in December 1990 or January 1991, he received a third degree burn on his right leg when a coffee pot was knocked over.  He was treated by a U.S. medical unit which was co-located at the King Abdul Aziz Hospital.

3.  The applicant did not provide any additional documentary evidence in support of his request.  

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 show he initially enlisted in the Regular Army on 24 September 1979.  He completed basic combat and advanced individual training and was awarded military occupational specialty (MOS) 19E (Tank Crewmember).  He subsequently executed a series of extensions and/or reenlistments in the Regular Army and was also awarded MOS 19K (M-1 Tank Crewmember).  He was promoted to sergeant (SGT)/E-5 on 15 August 1982 and to staff sergeant (SSG)/E-6 on 8 December 1986.  He was honorably discharged on 15 August 1991.

3.  The applicant’s records further show he served in Southwest Asia in support of Operations Desert Shield/Storm from 23 November 1990 to 24 February 1991.

4.  Item 13 (Decorations, Medals, Badges, Citation and Campaign Ribbons Awarded or Authorized) of the applicant’s DD Form 214 (Certificate of Release or Discharge from Active Duty) shows he was awarded the Army Service Ribbon, the National Defense Service Medal, the Good Conduct Medal (3rd Award), the Overseas Service Ribbon (2nd Award), the Southwest Asia Service Medal with two bronze service stars, the Army Achievement Medal (1st Oak Leaf Cluster), the Army Commendation Medal, and the Expert Marksmanship Qualification Badge with Pistol Bars (9 mm and .45 caliber).  Item 13 does not show award of the Purple Heart.

5.  The applicant’s records do not contain permanent orders awarding him the Purple Heart.

6.  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.

7.  U.S. Total Army Personnel Command (PERSCOM) (now known as Human Resources Command or HRC) Message 171226Z January 1991, Subject:  Delegation of Wartime Award Approval Authority, provided special guidance for Operation Desert Storm.  It stated that "division commanders in the grade of major general who had troops committed to the combat operation and hospital commanders receiving casualties could award the Purple Heart to Soldiers who were wounded as the direct result, repeat, direct result of enemy action."



8.  Army Regulation 600-8-22 further states that the Purple Heart is awarded in the name of the President of the United States to any member of the Armed Forces of the United States who, while serving under competent authority in any capacity with one of the U.S. Armed Services after 5 April 1917, has been wounded or killed, or who has died after being wounded.  Specific examples of services which warrant the Purple Heart include any action against an enemy of the United States; any action with an opposing armed force of a foreign country in which the Armed Forces of the United States are or have been engaged; while serving with friendly foreign forces engaged in an armed conflict against an opposing armed force in which the United States is not a belligerent party; as a result of an act of any such enemy of opposing armed forces; as the result of an act of any hostile foreign force; after 28 March 1973, as a result of an international terrorist attack against the United States or a foreign nation friendly to the United States, recognized as such an attack by the Secretary of the Army, or jointly by the Secretaries of the separate armed services concerned if persons from more than one service are wounded in the attack; and after 28 March 1973, as a result of military operations while serving outside the territory of the United States as part of a peacekeeping force. 

9.  The Purple Heart differs from all other decorations in that an individual is not "recommended" for the decoration; rather he or she is entitled to it upon meeting specific criteria.  A "wound" is defined as an injury to any part of the body from an outside force or agent sustained under one or more of the conditions listed above.  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 this decoration, 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.

10.  Examples of enemy-related injuries which justify award of the Purple Heart are injury caused by enemy bullet or shrapnel or other projectile created by enemy action; injury caused by enemy placed land mine, naval mine, or trap; injury caused by enemy released chemical, biological, or nuclear agent; injury caused by vehicle or aircraft accident resulting from enemy fire; concussion injuries caused as a result of enemy generated explosions. 




11.  Examples of injuries or wounds which do not qualify for award of the Purple Heart are frostbite or trench foot injuries; heat stroke; food poisoning not caused by enemy agents; chemical, biological, or nuclear agents not released by the enemy; battle fatigue; disease not directly caused by enemy agents; accidents, to include explosive, aircraft, vehicular, and other accidental wounding not related 
to or caused by enemy action; self-inflicted wounds, except when in the heat of battle, and not involving gross negligence; Post Traumatic Stress Disorder (PTSD); and jump injuries not caused by enemy action. 

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends that he is entitled to award of the Purple Heart due to his third degree burn on his right leg from a coffee pot which was knocked over during a Scud missile alert (emphasis added).

2.  An alert is not an attack.  There is no evidence in the record and the applicant has provided no evidence to show that a Scud missile actually exploded anywhere near the King Abdul Aziz Hospital.  There is, therefore, no evidence that an alleged inbound Iraqi Scud missile caused the applicant's injury.  In the absence of conclusive evidence that shows he was wounded or injured as a result of hostile action or that his injury or wound required treatment, and the medical treatment was made a matter of official record, there is insufficient evidence to grant the applicant the Purple Heart.

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

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

__xxx___  __xxx___  __xxx___  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.


															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)                                         AR20080009633



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ABCMR Record of Proceedings (cont)                                         AR20080009633



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