IN THE CASE OF:	

		BOARD DATE:	 9 April 2009 

		DOCKET NUMBER:  AR20080019118 


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 his records be corrected to show that he was awarded the Purple Heart, Southwest Asia Service Medal, and the Kuwait Liberation Medal.

2.  The applicant states that he was wounded on 14 (sic) September 2003 and feels that he deserves the Purple Heart.  As for the Southwest Asia Service Medal and Kuwait Liberation Medal, he believes he is entitled to these medals because of his participation in the Persian Gulf War.

3.  The applicant provides his DD Form 214 (Certificate of Release or Discharge from Active Duty) for the period ending 9 August 2005; excerpts from his Medical Evaluation Board (MEBD); excerpts from his line of duty investigation; and a memorandum for record.

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 records show that he enlisted in the Regular Army on 14 September 1988, was awarded military occupational specialty (MOS) 11M (fighting vehicle infantryman), and was promoted to pay grade E-4 on 5 April 1991.  He was honorably discharged on 3 August 1992 by reason of personality disorder.

3.  He again enlisted in the Regular Army on 26 March 2001.  On 17 October 2003, the applicant was treated for low back pain.  In the applicant's Standard Form (SF) 600 (Chronological Record of Medical Care) it was stated that the applicant had a several year history of low back pain and had been undergoing an MEBD prior to his deployment.  No mention was made of the applicant being injured in a mortar blast in that record of medical care.

4.  On 17 December 2004, an LOD investigation was initiated by Darnall Army Community Hospital, Fort Hood, TX by the completion of a DA Form 2173 (Statement of Medical Examination and Duty Status), Section I (to be completed by attending physician or hospital patient administrator).  The commander who completed and signed Section II (to be completed by unit commander or unit advisor) of that form stated that he was not the applicant's unit commander at the time of the incident.

5.  In the processing of the LOD, a statement was provided by an officer who stated that he was the medical officer who provided care to the applicant for his back injury following a mortar attack on his forward operating base (FOB) on 4 September 2003.  The physician stated that he provided profiling and medication and then recommended eventual evacuation from the area because of the applicant's persistent and debilitating symptoms.  The physician concluded that he considers the applicant to have an suffered injury as a result of enemy action.

6.  In the processing of the LOD, a statement was provided by another officer who stated that the applicant was medically evacuated from Iraq due to a significant worsening of his back problems following an Iraqi mortar attack.  The damage to the applicant's spine is consistent with a back injury caused when the individual is thrown with explosive force against a fixed object, as would happen in such an attack.  The officer concluded that the applicant's injury occurred as a direct result of enemy fire.

7.  In the excerpt of the MEBD provided by the applicant, in the "History of Present Illness" section, it was stated that "This gentleman was in his usual good state of health until he was blown up in Iraq on 4 September 2003, sustaining significant low back injuries.  He was treated non-operatively extensively until August of 2004, at which time he underwent lumbar fusion for relief of his symptoms."

8.  On 9 August 2005, the applicant was honorably discharged under the provisions of Army Regulation 635-40 (Physical Evaluation for Retention, Retirement, or Separation), by reason of disability with severance pay.

9.  In the processing of this case, the Army Casualty and Mortuary Branch, U. S. Army Human Resources Command was contacted.  That office had no record of the applicant being wounded in Iraq.

10.  Army Regulation 600-8-22 (Military Awards) provides that the Purple Heart is awarded for wounds 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.

11.  Army Regulation 600-8-22 provides that service in the Persian Gulf War is to be recognized by award of the Southwest Asia Service Medal to Army members who participated in Operations Desert Shield/Desert Storm in the designated area on or after 2 August 1990.  A bronze service star is authorized for the Defense of Saudi Arabia (2 August 1990 to 16 January 1991) and the Liberation and Defense of Kuwait (17 January to 11 April 1991), and the Cease-Fire Campaign (12 April 1991 to 30 November 1995).

12.  The Kuwait Liberation Medal awarded by the Kingdom of Saudi Arabia (KLM-SA) was approved on 3 January 1992 and is awarded to members of the Armed Forces of the United States who participated in the Persian Gulf War between 17 January 1991 and 28 February 1991.

13.  The Kuwait Liberation Medal awarded by the Government of Kuwait
(KLM-KU) was approved on 9 November 1995 and is awarded to members of the Armed Forces of the United States who participated in the Persian Gulf War between 2 August 1990 and 31 August 1993.

14.  The Defense Manpower Data Center (DMDC) compiled the Desert Shield/Storm Data Base.  The primary Desert Shield/Storm file contains one record for each active duty member who participated in-theater between 2 August 1990 and 31 July 1991 and one record for each Reservist, National Guard member or retiree who was activated or federalized in response to Desert Shield/Desert Storm.  For Reservists and Guard members the file includes those 
persons activated or federalized from 2 August 1990 through 31 December 1991. A Phase II file lists active duty personnel who served in-theater between 1 August 1991 and 31 December 1993.  There are also separate files covering calendar years 1994 and 1995.  The applicant's name is not contained in this data base.

DISCUSSION AND CONCLUSIONS:

1.  The applicant has provided evidence to show that he was in the vicinity of an enemy mortar attack in Iraq.

2.  However, the applicant has not submitted any medical records to show he was treated immediately following the mortar attack.

3.  The applicant's LOD investigation was initiated over a year after the mortar attack, was not completed by his commander at the time of the incident, and was not based on any medical records generated at the time of the mortar attack.

4.  The earliest record of the applicant being treated for back problems after the mortar attack was on 17 October 2003, which was slightly over a month after the mortar blast, when the applicant was treated for low back pain.  In the SF 600 it was stated that the applicant had a several year history of low back pain and had been undergoing an MEBD prior to his deployment.  No mention was made of the applicant being injured in a mortar blast in that record of medical care.

5.  The statement from the medical officer who provided care to the applicant for his back injury following a mortar attack on 4 September 2003 has been carefully considered.  While the physician stated that he provided profiling and medication and then recommended eventual evacuation from the area because of the applicant's persistent and debilitating symptoms, there are no medical records to support this statement.  To award a Purple Heart, the medical treatment must have been made a matter of official record.

6.  In the MEBD provided by the applicant it was stated that the applicant "was in his usual good state of health until he was blown up in Iraq on 4 September 2003, sustaining significant low back injuries."  Since it has been established that the applicant had been undergoing an MEBD prior to his deployment, it is apparent that this statement was based on information provided by the applicant and not from medical records.  


7.  In the absence of medical records showing that the applicant was provided medical treatment and that treatment was made a matter of official record, and in view of the fact that the applicant had an extensive history of lower back pain and had been pending an MEBD prior to his deployment, there is insufficient evidence in which to award him the Purple Heart.

8.  As for the Southwest Asia Service Medal and Kuwait Liberation Medal, there is no evidence to show that the applicant served in Southwest Asia during Operations Desert Shield or Desert Storm.  As such, there is insufficient evidence in which to grant this portion of his 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.



      __________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)                                         AR20080019118



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ABCMR Record of Proceedings (cont)                                         AR20080019118



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