IN THE CASE OF:	

		BOARD DATE:	  21 April 2009

		DOCKET NUMBER:  AR20080015893 


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 for trauma to his mid-back and neck.

2.  The applicant states, in effect, he should have received the Purple Heart due to the trauma to his mid-back and neck.

3.  The applicant provides, in support of his application, copies of a memorandum, dated 25 April 1991, from Department of the Army (DA), Medical Department Activity (MEDDAC), Fort Lee, VA; his DD Form 214 (Certificate of Release or Discharge from Active Duty) with a separation date of 24 May 1991; his NGB Form 22 (National Guard Bureau, Report of Separation and Record of Service); and a letter from the Department of Veterans Affairs (VA) Regional Office, Winston-Salem, NC, including a rating decision, dated 19 February 1993.

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 military personnel records show he enlisted in the North Carolina Army National Guard (NCARNG) on 8 April 1970.  He completed a period of initial active duty for training on 18 November 1970 and was awarded the military occupational specialty (MOS) 64A (Light Vehicle Driver).

3.  The applicant was ordered to active duty on 11 October 1990 in support of Operation Desert Shield/Desert Storm.  He served in southwest Asia during the period from 15 November 1990 to 20 April 1991.  

4.  A memorandum from the DA, MEDDAC, Fort Lee, dated 25 April 1991, addressed follow-up treatment instructions pertaining to the applicant's trauma to his mid-back and neck, and a skin rash on various areas of his body.  According to this memorandum these conditions occurred in the line of duty.

5.  On 24 May 1991, the applicant was released from active duty and returned to his ARNG unit.

6.  A DA Form 2173 (Statement of Medical Examination and Duty Status), dated 24 January 1992, filed in the applicant's Official Military Personnel Files (OMPF), indicates that the applicant sustained trauma to his mid-back and neck as a result of riding in a vehicle on rough terrain while in Saudi Arabia in support of Operation Desert Storm.  The applicant's injuries were determined to be in the line of duty.

7.  On 31 May 1993, the applicant was transferred to the Retired Reserve.  He had completed 23 years, 1 month, and 24 days of service that was characterized as honorable.

8.  The letter and rating decision, dated 19 February 1993, from the VA Regional Office indicates the applicant was granted service-connection for mechanical low back pain and a neck injury.

9.  Army Regulation 600-8-22 (Military Awards) 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 by medical personnel, and the medical treatment must have been made a matter of official record.  A 
wound is defined as an injury to any part of the body from an outside force or agent sustained as a result of hostile action.  This regulation also provides that there is no time limitation on requests for award of the Purple Heart.

10.  Title 38, U.S. Code, provides for the VA to make a determination and award compensation for disabilities which were incurred in or aggravated by active military service.  The VA does not make any determination as to whether an injury was received as a result of hostile action.

DISCUSSION AND CONCLUSIONS:

1.  The informal line of duty determination contained in the applicant's OMPF attributes his mid-back and neck injury to his riding in a vehicle over rough terrain.  There is no indication that his injury is the result of hostile action.

2.  The VA rating decision determined that the applicant's mechanical low back pain and neck injury were incurred while in the military service.  However, this decision does not determine nor is it intended to determine whether the applicant's injuries were a result of hostile action.

3.  Therefore, 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.



      _________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)                                         AR20080015893



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ABCMR Record of Proceedings (cont)                                         AR20080015893



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