IN THE CASE OF:	  

		BOARD DATE:	        23 October 2008

		DOCKET NUMBER:  AR20080010419 


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 he was injured on 16 August 2003 in Iraq when a High Mobility Multipurpose Wheeled Vehicle (HMMWV) rolled over his leg and broke his femur.  He was medically evacuated to Germany and was treated by having an 18-inch Titanium Rod in his femur. 

3.  The applicant provides the following additional documentary evidence in support of his request:

	a.  DD Form 214 (Certificate of Release or Discharge from Active Duty), dated 30 May 2004.

	b.  DD Form 215 (Correction to the DD Form 214), dated 5 October 2007.

	c.  Self-authored letter, dated 10 June 2008.

	d.  Miscellaneous chronological records of medical care, dated on various dates in 2003 and 2004.

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 enlisted in the Regular Army for a period of 3 years on 16 August 1999.  He completed basic combat and advanced individual training and was awarded military occupational specialty (MOS) 11B (Infantryman).  His records also show he executed a 2-year reenlistment on 28 November 2001.  He was honorably released from active duty and transferred to the U.S. Army Reserve (USAR) Control Group (Reinforcement) on 30 May 2004.  The highest rank/grade he attained during his military service was sergeant (SGT)/E-5.

3.  The applicant's records also show he served in Iraq in support of Operation Iraqi Freedom from 26 March 2003 to 15 September 2003.

4.  Item 13 (Decorations, Medals, Badges, Citations and Campaign Ribbons Awarded or Authorized) of the applicant's DD Form 214 and Item 5 of his DD Form 215 show he was awarded the Army Commendation Medal, the Army Achievement Medal, the Good Conduct Medal, the National Defense Service Medal, the Noncommissioned Officer Professional Development Ribbon, the Army Service Ribbon, the Overseas Service Ribbon, the NATO Medal, the Combat Infantryman Badge, the Expert Infantryman Badge, the Parachutist Badge with bronze service star, the Global War on Terrorism Expeditionary Medal with bronze arrowhead, the Global War on Terrorism Service Medal, and the Hungarian Parachutist Badge.  Item 13 of the DD Form 214 and Item 5 of the DD Form 214 do not show award of the Purple Heart.

5.  In his self-authored statement, dated 10 June 2008, the applicant states that on 16 August 2003, his team was enroute to secure a perimeter around a small town in Kirkuk, Iraq, when they received radio communication of a small fire.  By the time they arrived to their objective, an insurgent appeared to be surrendering. However, when a team member attempted to detain him, the insurgent resisted.  He also adds that he (the applicant) dismounted (the HMMWV) to help wrestle the insurgent down.  At that time the HMMWV started rolling and did not stop until after the right rear tire bounced over his (the applicant's) leg and broke his femur.  He was subsequently air-evacuated to Tikrit, Kuwait and Germany for treatment.  He now lives with an 18-inch Titanium Rod in his femur.  
6.  The applicant's AF Form 3899 (Aeromedical Evacuation Patient Record), dated 20 August 2003, shows the applicant was sustained a right femur fracture when a vehicle rolled over his leg on 16 August 2003.

7.  The applicant's records do not contain permanent orders awarding him the Purple Heart.

8.  The Purple Heart was established by General George Washington at Newburgh, New York on 7 August 1782 during the Revolutionary War.  It was reestablished by the President of the United States per War Department General Orders Number 3 in 1932.  It was awarded in the name of the President of the United States to any member of the Armed Forces or any civilian national 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, died or sustained wounds as a result of hostile action.

9.  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.

10.  Army Regulation 600-8-22 provides, in pertinent part, for award of the Purple Heart to individuals wounded or killed as a result of “friendly fire” in the “heat of battle” as long as the “friendly” projectile or agent was released with the full intent of inflicting damage or destroying enemy troops or equipment.

11.  Army Regulation 600-8-22 also states, in pertinent part, that 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 the sole justification for award.  It further states that examples of injuries or wounds which clearly do not justify award of the Purple Heart include accidents, to include explosive, aircraft, vehicular, and other accidental wounding not related to or caused by enemy action.

DISCUSSION AND CONCLUSIONS:

1.  The request for award of the Purple Heart submitted by the applicant and the evidence presented was carefully considered; however, it is insufficient to award the applicant the Purple Heart in this case. 
2.  The applicant's injury resulted from a vehicular accident not related to or caused by enemy action.  Therefore, in the absence of documentary evidence that shows he was wounded or injured as a result of hostile action and treated for those wounds, there is insufficient evidence upon which to base award of the Purple Heart in this case.  

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

__X_____  __X_____  __X_____  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 the applicant 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)                                         AR20080010419



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ABCMR Record of Proceedings (cont)                                         AR20080010419



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