IN THE CASE OF:	  

	BOARD DATE:	  7 August 2008

	DOCKET NUMBER:  AR20080010004 


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 reconsideration of the Board’s denial of his request that the incident report for a HMMWV (military vehicle) crash be corrected from showing that it was accidently caused, to that it was intentionally caused.  The applicant also requests award of the Purple Heart.  The applicant also requests the same relief be provided the other two surviving passengers in the HMMWV which rolled over.  In addition, the applicant requests that the accident report be corrected to show the correct bumper number.

2.  The applicant states that neither he nor another passenger in the HMMWV which rolled over were interviewed in the course of the investigation because they were both medically evacuated.  The applicant believes that his and the other passenger’s statements were critical in determining the cause of the HMMWV rolling over.  

3.  The applicant explains that while in a military convoy, an Iraqi civilian privately owned vehicle (POV) the convoy was overtaking swerved violently off the road and came to a stop.  When his HMMVW was passing the stopped POV, the POV accelerated and made a hard 90 degree left turn into the path of his HMMWV.  The applicant believes that the driver of the POV intentionally drove into the path of his HMMWV.




4.  The applicant provides a redacted copy of the accident report on the POV hitting the applicant’s HMMWV.  In that report it was stated that when the HMMWV was passing the POV, a person (name redacted) “observed the POV oversteer back onto [redacted] causing the [HMMWV] to strike the POV in the left front quarter panel.  The [tank commander] of [another HMMWV], the vehicle directly behind of [the applicant’s HWWMV], witnesses [sic] the collision and observes the HMMWV begin to turn clockwise (on a horizontal plane) after the initial impact.  [The applicant’s HMMWV] began to rollover (side over side) once the vehicle had completed a 180-degree turn and the front end of the vehicle was facing west.”

5.  The applicant also submits medical records which show that he was treated for lumbar compression fracture beginning on 24 May 2005.

6.  The applicant also submits an e-mail which show that he and another occupant of the HMMWV which rolled over were air evacuated to Germany.  This e-mail states that both people air evacuated were wounded in action.

7.  The applicant also submits the casualty report for the HMMWV crewman who died as a result of the HMMWV rolling over.

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 Army Board for Correction of Military Records (ABCMR) in Docket Number AR20080005936 on 8 May 2008.

2.  The applicant provides new argument and new evidence, which requires that the Board reconsider his request.

3.  In the applicant’s first request to the Board, he included a copy of the Board’s Record of Proceedings on a former service member (FSM) who died as a result of the HMMWV accident which caused the applicant’s injury.

4.  In the Board’s first consideration of the applicant’s request, the Board concluded that the applicant had not submitted anything to show that he was in a HMMWV crash or that he was injured as a result of a HMMWV crash.




5.  In the processing of this request, the applicant’s Disability Evaluation System (DES) packet was obtained.  Included in this packet was the applicant’s initial Medical Evaluation Board (MEBD) which found him physically unfit due to “Compression fracture of T12 and L1 sustained in a HMMWV rollover accident in May 05 in Iraq.”  The applicant was discharged for physical unfitness, rated 20 percent disabled, with severance pay.

6.  Army Regulation 600-8-22 provides that the Purple Heart is awarded for wounds 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 by a medical officer, and the medical treatment must have been made a matter of official record.

7.  Army Regulation 15-185, paragraph 2-3, states that usually applicants are soldiers or former soldiers of the Active Army, the U.S. Army Reserve (USAR), and in certain cases, the Army National Guard of the United States (ARNGUS) and other military and civilian individuals affected by an Army military record.  Requests are personal to the applicant and relate to military records.  Requests are submitted on DD Form 149 (Application for Correction of Military Record Under the Provisions of Title 10, U.S. Code, Section 1552).  Soldiers need not submit applications through their chain of command.  An applicant with a proper interest may request correction of another person’s military records when that person is incapable of acting on his or her own behalf, missing, or deceased.  Depending on the circumstances, a child, spouse, parent, or other close relative, heir, or legal representative (such as a guardian or executor) of the soldier or former soldier may be able to demonstrate a proper interest.  Applicants must send proof of proper interest with the application when requesting correction of another person’s military records.

DISCUSSION AND CONCLUSIONS:

1.  In the case cited by the applicant in his first request, the Board believed that the collision, on 22 May 2005, that resulted in the death of a FSM was caused by hostile action and he was therefore entitled to award of the Purple Heart.  As a result, the Board recommended that he be posthumously awarded the Purple Heart for the incident resulting in his death.  That recommendation was approved.  However, the Board did not recommend that the accident report be changed to show that the HMMVW incident was intentional.




2.  In a subsequent explanation of the Board’s decision, it was explained that no relief other than issuance of the Purple Heart was recommended by the ABCMR or directed by the Acting Deputy Assistant Secretary (Army Review Boards).  The applicant’s request to change Army records to reflect that the incident resulting in the FSM’s death was an intentional act and not an accident was noted in the Record of Proceedings, but the ABCMR did not grant relief on that claim,  Making such changes would affect records related to individuals other than the applicant and would not have been appropriate or recommended in this case.  Award of the Purple Heart was directed as an exercise of the extraordinary authority of the ABCMR to grant relief and was in keeping with the Army’s guidance for issuance of the Purple Heart:  “It is not intended that such a strict interpretation of the requirement for the wound or injury to be caused by direct result of hostile action be taken, that it would preclude the award being made to deserving personnel.”

3.  The applicant has now provided the accident report on the HMMWV incident which resulted in one soldier’s death and two soldiers injured.

4.  The Board’s staff has now obtained medical records which show that the applicant was treated for injuries he sustained in the HMMWV incident in question.

5.  Since the Board determined that the death of the FSM in the cited case warranted the Purple Heart, then all individuals injured in the HMMWV rollover incident would also be entitled to the Purple Heart, based on the Army’s guidance for issuance of the Purple Heart:  “It is not intended that such a strict interpretation of the requirement for the wound or injury to be caused by direct result of hostile action be taken, that it would preclude the award being made to deserving personnel.”  Because there is no clear evidence that the accident was caused by a hostile action, this must be directed as an exercise of the ABCMR’s extraordinary authority, as it was in the case of the FSM.

6.  However, there is still insufficient evidence to warrant changing the accident report on the HMMWV rollover incident to show that it was intentionally caused.  While the applicant believes that the accident report would have reached a different conclusion if statements had been taken from him and the other soldier which was medically evacuated, there is no reason to believe that would have been the case.  The statements taken by the investigating officer were from soldiers on the HMMWV directly behind the applicant’s HMMWV.  It would appear reasonable that soldiers who were that close to the incident, but not involved in the accident, would have a better perspective of what occurred than individuals who were involved in the accident.  

7.  The applicant’s request for the Purple Heart for the other passengers on the HMMWV which rolled over is noted.  However, the applicant is not a proper party to file an application for those individuals.

8.  As for the applicant’s request to change the accident report to change the bumper number of his HMMWV, the applicant has not submitted any evidence to show that the bumper number was recorded in error.  As such, there is no basis for granting this portion of his request.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF

___X____  ___X____  __X____  GRANT PARTIAL RELIEF

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

1.  The Board determined that the evidence presented was sufficient to warrant a partial amendment of the ABCMR’s decision in Docket Number AR20080005936 on 8 May 2008.  As a result, the Board recommends that all Department of the Army records of the individual concerned be corrected by awarding him the Purple Heart.

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 changing the accident report to show the accident was intentionally caused.




       _    __X_____   ___
       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)                                         AR20080010004





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ABCMR Record of Proceedings (cont)                                         AR20080010004



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