IN THE CASE OF:	

		BOARD DATE:	  14 April 2009

		DOCKET NUMBER:  AR20080019506 


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 DD Form 214 (Certificate of Release or Discharge from Active Duty) to show award of the Purple Heart.

2.  The applicant states that he was awarded the Purple Heart for an injury he sustained while fighting in Khamisiyah, Iraq.

3.  The applicant provides a copy of a letter, dated 3 August 2005, from the Department of Veterans Affairs regarding a Tennessee Hunting and Fishing License; and a copy of a letter, dated 27 September 2005, from the Office of the Assistant Secretary of Defense and a fact sheet regarding service members who served in Khamisiyah, Iraq, in support of his request.

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 records show he enlisted in the Regular Army for a period of 3 years on 9 June 1988.  He completed basic combat and advanced individual training and was awarded military occupational specialty (MOS) 31Q (Tactical Satellite/Microwave Systems Operator Course).  He was honorably discharged in the rank of specialist for disability with entitlement to severance pay on 14 July 1992.

3.  The applicant's records further show he served in Southwest Asia in support of Operations Desert Shield/Storm from 6 October 1990 through 24 March 1991. He was assigned to Company C, 426th Signal Battalion.

4.  Item 13 (Decorations, Medals, Badges, Citation and Campaign Ribbons Awarded or Authorized) of the applicant’s DD Form 214 does not show award of the Purple Heart.

5.  The applicant’s records do not contain permanent orders awarding him the Purple Heart.

6.  Item 9 (Awards, Decorations, and Campaigns) of the applicant's DA Form 2-1 (Personnel Qualification Record) does not show award of the Purple Heart.

7.  The applicant's medical records are not available for review with this case. 

8.  The applicant submitted a copy a letter, dated 27 September 2005, from the Assistant Secretary of Defense, with an enclosed fact sheet that addresses the potential of exposure to chemical agents of some service members who served around the Khamisiyah munitions depot that was destroyed by U.S. forces after the 1991 Gulf War.  The fact sheet lists frequently asked questions and answers; however, it does not specifically indicate or show that the applicant was exposed to a chemical agent. 

9.  Army Regulation 600-8-22 (Military Awards) provides, in pertinent part, that the Purple Heart is awarded for a wound sustained while in action against an enemy or 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.

10.  The Purple Heart differs from all other decorations in that an individual is not "recommended" for the decoration; rather he or she is entitled to it upon meeting specific criteria.  A "wound" is defined as an injury to any part of the body from an 

outside force or agent sustained under one or more of the conditions listed above.  A physical lesion is not required; however, the wound for which the award is made must have required treatment by a medical officer and records of medical treatment for wounds or injuries received in action must have been made a matter of official record.  When contemplating an award of this decoration, the key issue that commanders must take into consideration is the degree to which the enemy caused the injury.  The fact that the proposed recipient was participating in direct or indirect combat operations is a necessary prerequisite, but is not sole justification for award.  

11.  Examples of enemy-related injuries which justify award of the Purple Heart are injury caused by enemy bullet or shrapnel or other projectile created by enemy action; injury caused by enemy placed land mine, naval mine, or trap; injury caused by enemy released chemical, biological, or nuclear agent; injury caused by vehicle or aircraft accident resulting from enemy fire; concussion injuries caused as a result of enemy generated explosions. 

12.  Examples of injuries or wounds which do not qualify for award of the Purple Heart are frostbite or trench foot injuries; heat stroke; food poisoning not caused by enemy agents; chemical, biological, or nuclear agents not released by the enemy; battle fatigue; disease not directly caused by enemy agents; accidents, to include explosive, aircraft, vehicular, and other accidental wounding not related 
to or caused by enemy action; self-inflicted wounds, except when in the heat of battle, and not involving gross negligence; Post Traumatic Stress Disorder (PTSD); and jump injuries not caused by enemy action. 

13.  U.S. Total Army Personnel Command (PERSCOM) Message 171226Z January 1991, Subject:  Delegation of Wartime Award Approval Authority, provided special guidance for Operation Desert Storm.  It stated that "division commanders in the grade of major general who had troops committed to the combat operation and hospital commanders receiving casualties could award the Purple Heart to Soldiers who were wounded as the direct result, repeat, direct result of enemy action."

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends that his DD Form 214 should be corrected to show award of the Purple Heart. 

2.  There are no general orders that show the applicant was awarded the Purple Heart and there is no evidence in his service personnel records that shows that he was wounded or injured as a result of hostile action or treated for such 
wounds.  In the absence of documentation that shows he was wounded or injured as a result of hostile action and treated for those wounds, there is insufficient evidence upon which to base award of the Purple Heart in this case.

3.  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 record is in error or unjust.  The applicant has failed to submit evidence that would satisfy this requirement.

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)                                         AR20080019506



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ABCMR Record of Proceedings (cont)                                         AR20080019506



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