IN THE CASE OF:	  

		BOARD DATE:	  	  10 February 2009

		DOCKET NUMBER:  AR20090000112 


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, award of the Purple Heart.

2.  The applicant states, in effect, that he was involved in an improvised explosive device (IED) attack on 2 January 2004.  The unit, which he was involuntary transferred to, did not submit a recommendation for the Purple Heart, yet other Soldiers he talked with indicated that he should have been considered.  When he tried to pursue the action he was given the runaround.    

3.  The applicant provides a copy of his DD Form 214 (Certificate of Release or Discharge from Active Duty) in support of his application.

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 initially enlisted in the United States Army Reserve (USAR) on 1 June 1981.  He completed basic combat and advanced individual training and was awarded military occupational specialty (MOS) 88M (Motor Transport Operator).  The applicant's service was continuous and the highest rank/grade he attained during this period of service was staff sergeant (SSG)/pay grade E-6.  On 23 January 2003, the applicant was ordered to active duty with a report date of 24 January 2003 for a period of 365 days in support of Operation Enduring Freedom.

3.  On 2 January 2004, the applicant was the co-driver in an M915A2 truck tractor with an M1062 trailer.  While on a convoy mission an IED was detonated on the right side of the vehicle, just outside of Camp Dogwood, Balad, Iraq.  The applicant suffered from minor injuries resulting in hearing loss and an abrasion on his right arm from shattered glass due to the explosion.

4.  A DA Form 2173 (Statement of Medical Examination and Duty Status), dated 5 January 2004, shows that the applicant was examined at LSA [Logistics Support Area] Anaconda Troop Medical Clinic, Balad, Iraq, for injuries sustained as a result of an IED detonation.  The attending physician found that the applicant's injuries were in the line of duty and a formal line of duty investigation was not required.       

5.  A Standard Form 600 (Medical Record - Chronological Record of Medical Care), dated 5 January 2004, shows that the applicant was seen for a complaint of ringing in both ears because of an IED incident on 2 January 2004.  His ears were examined, and he was diagnosed with tinnitus as a result of the IED explosion.  No treatment was provided; however, the form noted he needed a hearing test upon his redeployment.

6.  The applicant was honorably released from active duty, in pay grade E-6, on 11 May 2004, under the provisions of Army Regulation 635-200, chapter 4, by reason of completion of required active service.  He served 1 year, 3 months and 18 days of active military service this period.   

7.  Item 13 (Decorations, Medals, Badges, Citations and Campaign Ribbons Awarded or Authorized), of the applicant's DD Form 214 shows he was awarded 
the Army Commendation Medal (2nd Award), Army Achievement Medal (6th Award), Army Good conduct Medal (5th Award), Army Reserve Components Achievement Medal (2nd Award), National Defense Service Medal (2nd Award), Global War on Terrorism Expeditionary Medal, Armed Forces Expeditionary Medal, Southwest Asia Service Medal with 2 bronze service stars, Noncommissioned Officer Professional Development Ribbon (Basic Level), Army Service Ribbon; Armed Forces Reserve Medal with Mobilization Device, Overseas Service Ribbon (2nd Award), Kuwait Liberation Medal (SA) [Saudi Arabia], Kuwait Liberation Medal (KU) [Kuwait], Expert Marksmanship 
Qualification Badge with Rifle Bar, and the Driver and Mechanic Badge with Driver-W Bar.  The Purple Heart is not shown among the applicant's authorized awards.

8.  There are no orders in the applicant’s service personnel records that show he was awarded the Purple Heart.  

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 to include injury caused by enemy placed 
IEDs.  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.  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 medical personnel and records of medical treatment for wounds or injuries received in action must have been made a matter of official record.

11.  A staff member of the Casualty Operations Division, Human Resources Command, Alexandria, Virginia, verified that the applicant was involved in an IED roadside bombing on 5 January 2004, and was reported to the Casualty Operations Division, in accordance with established operating procedures.

DISCUSSION AND CONCLUSIONS:

1.  There is no evidence the applicant was awarded the Purple Heart while he served in Iraq.

2.  To be awarded the Purple Heart, substantiating evidence must be presented to show that the Soldier was wounded as the result of hostile action, the wound must have required medical treatment, and the medical treatment must have been made a matter of official record.

3.  Medical documentation shows that the applicant was seen by a medical doctor for tinnitus which the medical document indicates was sustained as a result of an IED explosion while on a convoy mission in Iraq.  However, the medical document  does not indicate that he received treatment for the injury, which is a necessary requirement for an award of the Purple Heart       

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

____X____  ____X____  ___X____  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

The Board 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)                                         AR20090000112



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ABCMR Record of Proceedings (cont)                                         AR20090000112



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