IN THE CASE OF:	

		BOARD DATE:	  21 April 2009

		DOCKET NUMBER:  AR20080019517 


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 Distinguished Service Medal and the Purple Heart.

2.  The applicant states that he was injured when his convoy was attacked in Iraq and was seen by a medical officer.  He adds that he did not receive his end of tour award and believes that based on his work, support of the mission, and assistance to other Soldiers, he deserves an award of the Distinguished Service Medal. 

3.  The applicant provides an undated hand-written narrative of the criteria for award of the Purple Heart 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 on 29 September 1999.  He completed basic combat and advanced individual training and was awarded military occupational specialty (MOS) 11B (Infantryman).  His records also show he executed a 3-year reenlistment on 1 March 2002.  He was honorably discharged on 30 June 2005 by reason of disability with severance pay.  The highest rank/grade he attained during his tenure of service was specialist (SPC)/E-4.

3.  The applicant's records also show he served in Kuwait/Iraq in support of Operation Iraqi Freedom from 26 January 2004 to 10 April 2004.

4.  Item 13 (Decorations, Medals, Badges, Citations and Campaign Ribbons Awarded or Authorized) of the applicant's DD Form 214 (Certificate of Release or Discharge from Active Duty) shows he was awarded the Army Commendation Medal, Army Achievement Medal (5th Award), Good Conduct Medal, Korea Defense Service Medal, Iraq Campaign Medal, National Defense Service Medal, Global War on Terrorism Service Medal, Army Lapel Button, Army Service Ribbon, Overseas Service Ribbon, and the Combat Infantryman Badge.  

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

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

7.  An email, dated 8 April 2009, from the Deputy Chief, Army Casualty and Mortuary Branch, U.S. Army Human Resources Command (USAHRC), Alexandria, VA, indicated that there was no casualty report recorded for the applicant.

8.  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.  This regulation also states, in pertinent part, that when contemplating an award of the Purple Heart, 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 the sole justification for award.  



9.  Army Regulation 600-8-22 provides for award of the Distinguished Service Medal.  The Distinguished Service Medal was established by Act of Congress on 9 July 1918.  It is awarded to any person who, while serving in any capacity with the U.S. Army, has distinguished himself or herself by exceptionally meritorious service to the Government in a duty of great responsibility.  The performance must be such as to merit recognition for service which is clearly exceptional. Exceptional performance of normal duty will not alone justify an award of this decoration.  For service not related to actual war, the term "duty of great responsibility" applies to a narrower range of positions than in time of war and requires evidence of conspicuously significant achievement.  However, justification of the award may accrue by virtue of exceptionally meritorious service in a succession of high positions of great importance.  Awards may be made to persons other than members of the Armed Forces of the United States for wartime services only, and then only under exceptional circumstances with the express approval of the President in each case. 

10.  Title 10, U.S. Code, section 1130 provides the legal authority for consideration of proposals for decorations not previously submitted in timely fashion.  It allows, in effect, that upon the request of a Member of Congress, the Secretary concerned shall review a proposal for the award or presentation of a decoration (or the upgrading of a decoration), either for an individual or a unit, that is not otherwise authorized to be presented or awarded due to limitations established by law or policy for timely submission of a recommendation for such award or presentation.  Based upon such review, the Secretary shall make a determination as to the merits of approving the award or presentation of the decoration.

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends that he should be awarded the Purple Heart and the Distinguished Service Medal.

2.  With respect to award of the Purple Heart, the decision whether to award an individual the Purple Heart is made by the commander having award approval authority after ensuring that the individual met the criteria for award of the Purple Heart.  There is no evidence in the applicant's records and the applicant did not provide any evidence that shows he was wounded or injured as a result of hostile action or treated for such wounds.  In the absence of documentation, such as a completed, authenticated, and verified casualty report, or other evidence which clearly shows the applicant suffered a wound or injury as a result of hostile action, that he was treated for this wound or injury, and that his treatment was made a matter of official records, there is insufficient evidence to award him the Purple Heart in this case. 
3.  With respect to award of the Distinguished Service Medal, the governing Army regulation states that for personal decorations, formal recommendation, approval through the chain of command, and announcement of orders are required.  In the absence of orders, there is insufficient evidence to award the applicant the Distinguished Service Medal.  However, while the available evidence is insufficient for awarding the applicant the Distinguished Service Medal, this in no way affects the applicant’s right to pursue his claim for the Distinguished Service Medal by submitting a request through his Member of Congress under the provisions of Title 10, U.S. Code, section 1130.

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)                                         AR20080019517



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ABCMR Record of Proceedings (cont)                                         AR20080019517



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