IN THE CASE OF:	

		BOARD DATE:	  25 September 2008

		DOCKET NUMBER:  AR20080010617 


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 correction of his records to show award of the Purple Heart.

2.  The applicant states that he was wounded in Iraq on 3 May 2007 and was awarded the Purple Heart on 5 May 2007, and that he was medically evacuated to Madigan Army Medical Center at Fort Lewis, Washington.  However, no paperwork for this award was submitted until after he retired for disability.  

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

	a.  DA Form 4187 (Personnel Action), Request for award of the Purple Heart and narrative to accompany award of the Purple Heart.

	b.  Unit Casualty Report, dated 16 May 2007.

	c.  Standard Form (SF) 600 (Chronological Record of Medical Care), dated 18 May 2007.

	d.  Four DA Forms 2823 (Sworn Statement), dated 4 May 2007, 6 May 2007, and 23 June 2007.

	e.  AF Form 3899 (Aeromedical Evacuation Patient Record), dated 10 May 2007.

CONSIDERATION OF EVIDENCE:

1.  With prior enlisted service in the Regular Army and the U.S. Army Reserve (USAR), the applicant enlisted in the Washington Army National Guard (WAARNG) in his military occupational specialty (MOS) 12B (Combat Engineer) on 19 January 1994.  He subsequently executed a series of extensions and/or reenlistments in the WAARNG and was promoted to master sergeant (MSG)/E-8 on 1 January 2007.

2.  On 14 July 2006, the applicant was ordered to active duty in support of Operation Iraqi Freedom and subsequently served in Iraq from 17 September 2006 to 14 May 2007.  He was assigned to the 321st Engineer Battalion, 411th Engineer Brigade.  

3.  On 3 May 2007, while in Iraq, the applicant’s unit executed a route clearance mission in support of the 3rd Battalion, 69th Armor.  The applicant’s vehicle was moving along with the patrol and positioning itself in a possible Improvised Explosive Device (IED) location when a previously undetected device detonated on the vehicle under the driver’s seat, forcing the driver’s door to open.  During the recovery process, a second and much larger IED detonated approximately three meters from the applicant’s vehicle.  He was initially medically evacuated to a treatment facility in Camp Ramadi, and was subsequently evacuated to Balad for further evaluation, and eventually to Germany and to Madigan Army Medical Center, Fort Lewis, Washington.

4.  A casualty report was submitted by the applicant’s unit at the time, indicating that at 9:15 pm, on 3 May 2007, the applicant sustained an injury to his lower back while conducting combat operations against anti-Iraqi forces in the Al Anbar Province.  He was the right front passenger of a Cougar Mine Protection Wheeled Vehicle with Level I armor that was struck by an IED.  He was seen by the platoon medic and continued the mission.  Upon return to Camp Ramadi, he went to Ramadi Surgical Hospital where he was treated by medical authorities and further medically evacuated to the 332nd Expeditionary Medical Group (EMDG), Balad.  He was further medically evacuated on 14 May 2007 to Madigan Army Medical Center, Fort Lewis, Washington due to a need of higher level medical treatment.

5.  On 11 March 2008, after his return from Iraq, the applicant underwent a physical evaluation board (PEB) for degenerative arthritis in the cervical spine (traumatic onset of radiating neck pain in 2007), degenerative disease of the thoracolumbar spine (twisting injury in 2004), and Post traumatic stress disorder (PTSD).  The PEB found him medically unfit and recommended permanent disability retirement.
6.  The applicant’s records show he was honorably retired by reason of permanent physical disability on 30 April 2008.  Item 13 (Decorations, Medals, Badges, Citations and Campaign Ribbons awarded or Authorized) of this DD Form 214 (Certificate of Release or Discharge from Active Duty), dated 30 April 2008, does not show award of the Purple Heart.

7.  The applicant’s records do not contain permanent orders that show he was awarded the Purple Heart.

8.  The applicant submitted a copy of a reconstructed DA Form 4187 that shows his chain of command requested his award of the Purple Heart for being wounded in action on 3 May 2007 in Iraq.  This form is authenticated by the applicant’s battalion and brigade commanders and was approved on 16 June 2008, after the applicant’s retirement, by the Commanding General, 411th Engineer Brigade.

9.  The applicant submitted four sworn statements from witnesses as follows:

	a.  the first witness (convoy medic in the second vehicle with the applicant) stated that he had the applicant get in a Bradley Fighting Vehicle because he was suffering from back pain caused by the explosion.  The applicant was sitting in the passenger side, front seat, when the IED went off;

	b.  the second witness (driver of the lead vehicle) stated that an IED had gone off on the applicant’s Cougar, disabling it and blowing off the front left tire;

	c.  the third witness (convoy leader, in the lead vehicle) stated that the first IED blast had hurt the applicant, damaging his back; and

	d.  the fourth witness  (gunner in the second vehicle with the applicant) stated that that when the first IED detonated, the applicant’s back was in a lot of pain, so he was transferred to one of the Bradley Fighting Vehicles. 

10.  The applicant’s Patient Movement Request, dated 5 May 2007, shows that the applicant was treated at the 332nd Expeditionary Medical Group (EMDG), Balad for “chronic low back pain, secondary to known degenerative changes,” that his pain was exacerbated (including cervical/lumbar back pain, parethesias of all 4 extremities distally) from recent IED blasts on 3 May 2007,” that the applicant had a Line of Duty (LOD) determination from a previous deployment, and that besides the exacerbation, no other IED injuries noted.”  



11.  An email from the Deputy Chief, Army Casualty and Mortuary Affairs, Human Resources command (HRC), Alexandria, Virginia, dated 8 September 2008, confirmed that the applicant was injured and that a casualty report was submitted; however, his injury did not qualify for award of the Purple Heart and that his diagnosis was that he sustained chronic back pain.  Furthermore, the applicant’s diagnosis on the casualty Report shows the entry “Soldier sustained chronic back pain per Dr. Gxxxxxh Shxxx, MAJ, USAF, MD.” 

12.  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.  During wartime the senior Army commander in the combat theater can award the Purple Heart as approval authority when delegated by the Secretary of the Army.  

DISCUSSION AND CONCLUSIONS:

1.  The applicant’s contention that he is entitled to award of the Purple Heart was carefully considered; however, it was found to be without merit.

2.  The applicant’s service in Iraq and his personal presence during the IED attack on 3 May 2007 are not in question.  However, none of the witnesses attributed the applicant’s back pain to the IED blast.  This fact was further confirmed by the U.S. Air Force physician at the 332nd EMDG who examined and/or treated the applicant on 5 May 2007 and noted that the applicant suffered chronic low back pain, secondary to known degenerative changes and that his pain was exacerbated from the IED blast on 3 May 2007.

3.  The reconstructed request for award of the Purple Heart submitted by the applicant’s former battalion and brigade commanders and its subsequent approval by the Commanding General of the 411th Engineer Brigade is noted.  However, it appears that this request was reconstructed under the premise that the applicant’s injury was a result of hostile action.  

4.  Nevertheless, in view of the military physician’s assessment of the applicant’s injury at the time, it was determined that he only suffered back pain, secondary to a previous injury.  Therefore, the applicant did not meet the criteria for award of the Purple Heart.



BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

__X_____  ___X____  ____X__  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.



      __________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)                                         AR20080010617



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ABCMR Record of Proceedings (cont)                                         AR20080010617



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