IN THE CASE OF:
BOARD DATE: 23 APRIL 2009
DOCKET NUMBER: AR20090000028
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.
2. The applicant states that his left arm nerves were severed during a fire fight in Iraq in 2003 and that he submitted a request for the Purple Heat in 2004 and was told he would be awarded it but never received it.
3. The applicant provides a copy of a letter, dated 15 December 2008, from the National Personnel Records Center 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 applicants 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 applicants 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 fort a period of 3 years on 7 May 1997. He completed basic combat and advanced individual training and was awarded military occupational specialty (MOS) 11B (Infantryman). His records also show he executed a 5-year reenlistment in the Regular Army on 8 May 1999. The applicant's records show he served in Iraq from 2 March to 21 May 2003.
3. The applicant was honorably discharged due to a "physical condition, not a disability" with entitlement to severance pay in the rank/grade of sergeant (SGT)/E-5 on 21 November 2003.
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 Achievement Medal (4th Award), the Good Conduct Medal (2nd Award), the National Defense Service Medal, the Noncommissioned Officer Professional Development Ribbon, the Army Service Ribbon, the Expert Marksmanship Qualification Badge with Rifle Bar (M-16), the Expert Marksmanship Qualification Badge with Grenade Bar, the Combat Infantryman Badge, the Expert Infantryman Badge, and the Air Assault 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. However, his separation packet indicates he was separated based on a diagnosis of "anxiety disorder and depressive disorder, not otherwise specified."
7. An email, dated 9 April 2009, from the Deputy Chief, Army Casualty and Mortuary Branch, Human Resources Command, 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.
DISCUSSION AND CONCLUSIONS:
1. 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.
2. 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.
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.
_______ _ ___XXX____ ___
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.
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