IN THE CASE OF:	

		BOARD DATE:	  6 November 2008

		DOCKET NUMBER:  AR20080012759 


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, in effect, that on 7 February 2004 he sustained injuries during a convoy mission. 

3.  The applicant provides a Standard Form (SF) 600 (Chronological Record of Medical Care), dated 7 February 2005; a DD Form 214 (Certificate of Release or Discharge from Active Duty), dated 15 April 2005; two DA Forms 2823 (Sworn Statement), with dates 4 April 2004 and 7 June 2005; a DA Form 3349 (Physical Profile), dated 4 January 2005, and a letter of support from a fellow Soldier, dated 5 February 2007.

COUNSEL'S REQUEST, STATEMENT AND EVIDENCE:

The counsel makes no additional statement.

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 enlisted in the Regular Army on 2 November 2001 and successfully completed basic training and advanced individual training.  He was awarded military occupational specialty 13M (Multiple Launch Rocket System Crewman).  

3.  On 12 April 2003, the applicant arrived in Iraq.

4.  A SF 600, dated 7 February 2004, indicates that the applicant stated he was in a convoy performing duties as a turret gunner.  His vehicle was involved in a motor vehicle accident.  He complained of injuries to his lower left leg, right flank, and left shoulder.  He was treated for minor contusions and abrasions due to trauma from a motor vehicle accident.  He was administered medication, given 
24 hours quarters, and returned to duty.

5.  On 11 April 2004, the applicant departed Iraq.

6.  A DA Form 3349, dated 4 January 2005, shows the applicant was issued a temporary profile for left leg pain, which expired on 28 February 2005.  

7.  On 15 April 2005, the applicant was honorably discharged from active duty after completing 3 years, 5 months, and 14 days of creditable active service.

8.  The applicant's DD Form 214 for the period ending 15 April 2005 does not show he was awarded the Purple Heart.  

9.  There are no general orders in the applicant’s service personnel records that show he was awarded the Purple Heart.  The applicant's name is not listed on the Iraq/Afghanistan Casualty Roster.

10.  The applicant provides a letter of support from a fellow Soldier, dated 
5 February 2007.  The author stated that he was one of the commanders in the gun trucks that were escorting vehicles in the convoy.  The author continued that he and the applicant were injured when his vehicle tried to pass two dump trucks 
off the side.  As he approached to pass, one of the trucks pulled right sharply and intentionally struck the left side of his vehicle sending it into a guard rail.  

11.  The author further stated that after hitting the guard rail he was pulled from the vehicle.  After he woke up in the hospital, he was told that his vehicle was run off the road by a driver of the dump truck who was trying to stop the convoy.  His unit placed him and his crew in for award of the Purple Heart.

12.  Army Regulation 600-8-22 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 required treatment, and the medical treatment must have been made a matter of official record.  

DISCUSSION AND CONCLUSIONS:

1.  Evidence of record shows the applicant sustained minor contusions and abrasions to his lower left leg, right flank, and left shoulder and that he was administered medication and returned to duty.  While his injury is unfortunate, there is no evidence in the available records and the applicant has not provided evidence that shows his injury was a result of hostile action. 

2.  The applicant's commander at the time of the incident must have been aware of the incident as well of the severity of the applicant's injury and medical treatment.  It appears the commander did not find it appropriate at that time to recommend the applicant for award of the Purple Heart.

3.  Regrettably, in view of the foregoing, there is insufficient evidence that would warrant granting the applicant's request.

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.




      _______ _ 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)                                         AR20080012759





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ABCMR Record of Proceedings (cont)                                         AR20080012759



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