IN THE CASE OF:	  

		BOARD DATE:	  	  18 December 2008

		DOCKET NUMBER:  AR20080014158 


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, in effect, that the records of her deceased son, a former service member (FSM), be corrected to show award of the Purple Heart.

2.  The applicant states in effect, that the FSM sustained injuries in Somalia in 1993 during combat.  The injuries were not annotated on his official medical records.  He sustained back injuries in Somalia when a concussion grenade threw the FSM against a brick wall.  Although he was injured, he got up and continued the mission as any infantryman would do.  The injuries resulted in him having permanent nerve paralysis and pain in his back.  The FSM was discharged by reason of disability, with severance pay. 

3.  The applicant provides, in support of her application, a Certification of Vital Record from the State of Texas San Antonio, Metropolitan Health District Health District; a copy of the Department of Veterans Affairs (VA), Wichita VA Medical and Regional Office Center decision document; a copy of the FSM's separation document (DD Form 214); and a copy of a statement titled, "to the Soldiers of TF Condor."

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 FSM's military record is not available to the Board for review.  However, there are sufficient documents on file for the Board to conduct a fair and impartial review of this case.  This case is being considered using documents, which primarily consist of the FSM's DD Form 214 and documents provided by the applicant.  

3.  The FSM’s available military service record shows he enlisted and entered active duty in the Regular Army on 19 November 1991.  Upon completion of basic combat and advanced individual training, he was awarded military occupational specialty (MOS) 11B (Infantryman).  

4.  The FSM’s available military service record is void of any order or other documents that indicate he was ever recommended for or awarded the Purple Heart by proper authority while serving on active duty.  It is also void of any medical treatment records indicating he was ever treated for a combat-related wound or injury during his active duty tenure.  

5.  The documents containing the facts and circumstances surrounding the FSM's discharge are not present in the available records.  The FSM's medical records are unavailable for review.

6.  On 9 April 1998, the FSM was honorably discharged under the provisions of Army Regulation 635-40, paragraph 4-28b(3) by reason of disability, with severance pay.  He completed a total of 6 years, 4 months and 21 days of active military service.  The DD Form 214 he was issued at the time of discharge shows that he was awarded the Joint Meritorious Unit Award, the National Defense Service Medal, the Armed Forces Expeditionary Medal, the Humanitarian Service Medal (2nd award), the Army Service Ribbon, the Overseas Service Ribbon, the Expert Marksmanship Qualification Badge with Rifle Bar, the Sharpshooter Marksmanship Qualification Badge with Grenade Bar, the Combat Infantryman Badge, the Air Assault Badge, and the Army Lapel Button.  The Purple Heart is not included in the list of awards contained in Item 13 (Decorations, Medals, 
Badges, Citations and Campaign Ribbons Awarded or Authorized) of his DD Form 214 and the FSM authenticated this document with his signature in Item 21 (Signature of Member Being Separated) on the date of his discharge. 

7.  On 12 July 2001, the VA granted the FSM 100 percent disability for service-connected PTSD.  The FSM's evaluation of the right long thoracic nerve injury, lumbar strain, the right herniorrhaphy, and malaria residuals received a combined 30 percent disabling rating from the VA.

8.  On 10 December 2003, the FSM died; he was 30 years old.

9.  On 29 June 2004, the VA found that the FSM's death was service-connected. 

10.  Army Regulation 600-8-22 (Military Awards) prescribes the Army's awards policy.  Paragraph 2-8 contains the regulatory guidance pertaining to award of the PH.  It states, in pertinent part, that in order to support award of the PH there must be evidence that the wound for which the award is being made was received as a result of enemy action; that the wound required treatment by medical personnel; and a record of this medical treatment must have been made a matter of official record.  

DISCUSSION AND CONCLUSIONS:

1.  The applicant’s contentions that her son, the FSM, is entitled to the Purple Heart have been carefully considered.  However, by regulation, in order to support award of the Purple Heart there must be evidence that the wound or injury for which the award is being made was received as a result of enemy action, that the wound required treatment by medical personnel, and a record of this medical treatment must have been made a matter of official record. 

2.  The FSM’s available record provides no indication that he was ever wounded in action or treated for a combat-related wound or injury during his active duty tenure and of any medical treatment records that show he was treated for a combat-related wound or injury.  

3.  Regrettably, absent any evidence of record that confirms the FSM was wounded in action while serving in Somalia, the regulatory burden of proof necessary to support award of the Purple Heart has not been satisfied in this case.  

4.  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 FSM's record is in error or unjust.  The applicant has failed to submit evidence that would satisfy this requirement related to award of the Purple Heart.

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 FSM in service to our Nation.  The applicant and all Americans should be justifiably proud of his service in arms.

      ___________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)                                         AR20080014158



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ABCMR Record of Proceedings (cont)                                         AR20080014158



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