IN THE CASE OF:	  

		BOARD DATE:	        10 February 2009

		DOCKET NUMBER:  AR20080016683 


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 his injuries received during his service in Iraq.  He also requests, in effect, that his disability rating be increased to 30 percent (i.e., a medical retirement). 

2.  The applicant states, in effect, that he was injured in the line of duty in November 2003 in Iraq and that he was not awarded the Purple Heart.  He also states that although he received severance pay following his discharge in March 2006 the Army would not allow him to medically retire.  He points out that after serving 18 and 1/2 years of service and being injured in Iraq and considered "unfit" by the Army, he should be allowed to medically retire and receive benefits due to him.  He indicates that although his neck and shoulder were injured, the Medical Board only rated his shoulder at 10 percent.  He further states that the Physical Evaluation Board (PEB) found him "physically unfit" stating his medical and physical impairment prevents reasonable performance of duties required by grade and military specialty.  

3.  The applicant provides discharge orders; a DD Form 214 (Certificate of Release or Discharge from Active Duty) for the period ending 4 March 2006; an eyewitness statement; a DA Form 2173 (Statement of Medical Examination and Duty Status); a DA Form 199 (Physical Evaluation Board (PEB) Proceedings); and 2004/2005 medical records in support of his application.  




CONSIDERATION OF EVIDENCE:

1.  Having prior service, the applicant was ordered to active duty from the U.S. Army Reserve on 10 February 2003.  He served as a combat engineer in Iraq.

2.  The applicant's Medical Evaluation Board (MEB) and informal PEB are not available.  On 4 January 2006, a formal PEB found the applicant physically unfit due to chronic pain, right shoulder, status post rotator cuff repair.  The formal PEB recommended a combined rating of 10 percent and that the applicant be separated with severance pay.  On an unknown date, the applicant concurred with the findings.  The DA Form 199 shows his disability did result from a combat-related injury.     

3.  A memorandum, dated 9 February 2006, states the applicant's request for Continuation on Active Reserve (COAR) was approved.  This memorandum also states, in pertinent part, that his DD Form 214 would be annotated to show the entry, "The Soldier was found unfit by reason of physical disability and has been granted a continuance in the active reserve to achieve 20 years of creditable service for reserve retirement.  No severance pay is authorized." 

4.  A memorandum, dated 15 February 2006, states the applicant's COAR determination memorandum was revoked and that the applicant elected to be separated with severance pay.

5.  On 4 March 2006, the applicant was honorably discharged in the rank of staff sergeant by reason of physical disability with severance pay (10 percent) with entitlement to $41,979.00.  He had completed 6 years, 6 months, and 13 days of creditable active service. 

6.  The applicant’s DD Form 214 does not show the Purple Heart as an authorized award.  

7.  There are no orders for the Purple Heart in the applicant's service personnel records.  However, the applicant provided a DA Form 2173, dated 20 November 2003, which states that while in Iraq, he was injured due to an improvised explosive device (IED) attack.  As a result, the applicant experienced shoulder pain from being thrown around in the cab of the vehicle he was occupying when the vehicle struck a landmine.       

8.  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.  

9.  Title 10, U.S. Code, section 1203, provides for the physical disability separation of a member who has less than 20 years service and a disability rated at less than 30 percent.  Section 1212 provides that a member separated under Section 1203 is entitled to disability severance pay.

10.  Title 10, U.S. Code, chapter 61, provides disability retirement or separation for a member who is physically unfit to perform the duties of his office, rank, grade or rating because of disability incurred while entitled to basic pay.

DISCUSSION AND CONCLUSIONS:

1.  Medical evidence of record shows the applicant was injured by an IED in Iraq on 20 November 2003 and he was treated for his injuries.  Therefore, he is entitled to award of the Purple Heart and correction of his DD Form 214 for the period ending 4 March 2006 to show this award.

2.  The applicant's contentions regarding medical retirement were noted.  However, he elected to be separated with severance pay.

3.  Although the applicant provided evidence to show he had some type of neck injury while on active duty, there is insufficient evidence on which to show a neck injury prevented performance of his duties.  

4.  There is insufficient evidence to show the applicant’s disability was improperly rated by the formal PEB or that his separation with severance pay was not in compliance with law and regulation.  Therefore, there is insufficient evidence on which to increase his disability rating. 

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

____x____  ____x____  ___x_____  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION


BOARD DETERMINATION/RECOMMENDATION:

1.  The Board determined that the evidence presented was sufficient to warrant a recommendation for partial relief.  As a result, the Board recommends that all Department of the Army records of the individual concerned be corrected by:

	a.  awarding him the Purple Heart for wounds received on 20 November 2003 in Iraq; and

	b.  adding the Purple Heart to his DD Form 214 for the period ending 4 March 2006. 

2.  The Board further determined that the evidence presented is insufficient to warrant a portion of the requested relief.  As a result, the Board recommends denial of so much of the application that pertains to increasing his disability rating.



      ________xx______________
       	   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)                                         AR20080016683



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ABCMR Record of Proceedings (cont)                                         AR20080016683



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