IN THE CASE OF:	  

		BOARD DATE:	        28 APRIL 2009

		DOCKET NUMBER:  AR20090001323 


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, through his Representative in Congress, award of the Purple Heart for injuries received, on 27 December 2006, while serving in Iraq.  

2.  The applicant states that the award was not made prior to him departing Iraq in February 2007 and that he has since been denied the award twice by the Military Awards Branch, Army Human Resources Command (AHRC).  He states that, on 11 July 2008, he received a second AHRC memorandum informing him that his request for the Purple Heart was once again denied.  He states that the memorandum acknowledges the fact that he received a grade I concussion; however, it states that he provided no documentation that made reference to wounds caused by the enemy which required medical treatment.  He states that he has provided the required documentation in each previous appeal and that he is again submitting the documentation.  He states that his teammate was awarded the Purple Heart for the same injury in the same improvised explosive device (IED) incident, on 27 December 2006.

3.  The applicant provides in support of his application a letter from the AHRC Chief, Military Awards Branch, dated 27 October 2008, addressed to his Representative in Congress pertaining to his desire to be awarded the Purple Heart; a self-authored memorandum addressed to his Representative in Congress, dated 16 August 2008, referencing memoranda and telephone conversations between other agencies and himself regarding the award of the Purple Heart; a memorandum written by his Attorney-Advisor and addressed to the Commander, Hood Mobilization Brigade, dated 15 March 2007; a copy of an excerpt from Army Regulation 600-8-22 (Military Awards); a copy of his Navy-Marine Corps CTR-Theater Medical Registry Form and assessment/diagnosis, dated 27 December 2006; an undated, unsigned list of information pertaining to the applicant and the circumstances surrounding his injury; a Navy-Marine Corps CTR-Theater Medical Registry Form and assessment/diagnosis, dated 
27 December 2006, pertaining to another individual; an undated, unsigned list of information pertaining to another individual and the circumstances surrounding the other individual's injury; a copy of orders, dated 21 March 2008, awarding the other individual the Purple Heart; and an appeal packet, dated 18 June 2008, addressed to his Representative in Congress which includes duplicates of documents previously referenced.

4.  The applicant also provides a memorandum from the AHRC Chief, Military Awards Branch, addressed to the Commander, Hood Mobilization Brigade, dated 16 April 2008, notifying him that the request for award of the Purple Heart was disapproved; a self-authored memorandum along with previously identified documents addressed to the Commander AHRC, dated 31 March 2007, requesting reconsideration of his appeal for award of the Purple Heart; a Purple Heart Checklist; an undated DA Form 4187 (Personnel Action) addressed to the Brigade Team Chief requesting that he be awarded the Purple Heart; a copy of a Casualty Feeder Card along with an attached statement pertaining to the IED attack; three Sworn Statements from three individuals, dated 28 December 2006; electronic mail between him and other individuals regarding the disapproval of his award of the Purple Heart; a Chronological Record of Medical Care, dated 28 March 2007; Hearing Conservation Data; a copy of the results of his hearing test, dated 20 February 2007; and medical documentations pertaining to his hearing test.

CONSIDERATION OF EVIDENCE:

1.  On 9 May 1981, the applicant accepted an appointment as a second lieutenant in the Regular Army.  He was promoted to the rank of first lieutenant, on 27 November 1982; he was promoted to the rank of captain, on 1 December 1984; and he was promoted to the rank of major, on 1 March 1993.

2.  The applicant was honorably retired, on 31 May 2001, under the provisions of Army Regulation 600-8-24, paragraph 6-14c(1), due to obtaining sufficient service for retirement.  He was transferred to the United States Army Reserve Control Group (Retired).





3.  On 30 November 2005, the applicant was recalled to active duty (for mobilization) with an effective date of 8 January 2006 in support of Operation Iraqi Freedom.  On 23 January 2006, he was deployed to Iraq in support of Operation Iraqi Freedom.

4.  On 27 December 2006, the applicant sustained a grade 1 concussion (no loss consciousness) as a result of an enemy IED.  He was medically evacuated as a result of his concussion and he was examined by medical personnel.  The medical examination revealed normal memory, concentration, cognitive ability, and coordination.  He was placed on light duty with no loud noise and no combat patrol for 7 days.

5.  In response to an inquiry from the applicant as to why he was disapproved for award of the Purple Heart and his teammate was approved for the Purple Heart, the applicant was notified on 4 February 2007, in the form of electronic mail, that his request and submissions had been reevaluated.  He was told that his teammate's request for the Purple Heart was not initially reviewed by the Corps Surgeon and that the request was approved in error.  He was told that his teammate's Purple Heart would not be revoked until his commanding officer requested that it be revoked.  The applicant was further informed that one of his other teammates was approved for the Purple Heart as he had a Grade 3 Concussion and that all other requests were disapproved.

6.  While the notification to the applicant that initiated this memorandum is not available for review at this time, a memorandum dated 15 March 2007, addressed to the Commander, Hood Mobilization Brigade, indicated that the applicant's Attorney-Advisor stated that he had reviewed the request from the applicant to the AHRC for award of the Purple Heart.  He stated that the applicant's packet was administratively complete and he recommended that it be forwarded through command channels for AHRC action.  The Attorney-Advisor stated that the applicant was informally advised of disapproval of his request by the Commander, Iraqi Assistance Command and that he had since received further medical treatment at Fort Hood (Darnall Army Medical Center) and included additional medical treatment information with his request.  The Attorney-Advisor stated that in accordance with Army Regulation 600-8-22, paragraph     1-15(f), the Purple Heart is not an award requiring recommendation, but is an entitlement upon meeting certain conditions.  He stated that paragraph 2-8(g)(5) provides examples of wounds covered by award of the Purple Heart and that concussion injuries caused as a result of enemy-generated explosions is included.  



7.  On 31 March 2007, the applicant submitted a request to the Commander, AHRC for reconsideration for award of the Purple Heart.  As part of his request for reconsideration, he submitted a Purple Heart Checklist; a DA Form 4187 signed by his Brigade and Division Team Chiefs requesting that he be awarded the Purple Heart; medical documentation surrounding his injury; sworn statements from individuals attesting to the events that led to his injury; a copy of the electronic mail, dated 4 February 2007, explaining why his teammates were awarded the Purple Heart; a copy of the memorandum from this Attorney-Advisor dated 15 March 2007; extracts from Army Regulation 600-8-22; copies of medical testing that was performed at Darnall Army Community Hospital, dated 28 March 2007; and a copy of the notification from the Chief, Hearing Conservation dated 20 February 2007, notifying him of hearing test results and scheduling him for a follow-up test.

8.  In memoranda, dated 18 June 2008 and 16 August 2008, the applicant informed his Representative in Congress of his denials for the award of the Purple Heart and he requested assistance in obtaining additional consideration from AHRC.

9.  On 27 October 2008, the applicant's Representative in Congress was notified by AHRC that his request for award of the Purple Heart had been twice reviewed and that while he sustained a grade 1 concussion, the documentation that he provided indicated that he was medically evaluated by medical personnel but he did not require medical treatment for injuries received as a direct result of enemy action.  The applicant's Representative in Congress was informed that an award of the Purple Heart could not be authorized for the applicant and that if he believed the decision was unfair or unjust, he had the right to submit an appeal to this Board.

10.  The available records indicate the applicant is currently in an active status and he is assigned to Fort Hood, Texas.

11.  Army Regulation 600-8-22 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.  Paragraph 2-8(8)e provides that 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 in paragraph 2-8 of this regulation.  A physical lesion is not required, however, the wounds or injuries 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.  Paragraph 2-8(8)g(5) provides that concussion injuries caused as a result of enemy-generated explosions clearly justify award of the Purple Heart.

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends that he is entitled to the award of the Purple Heart and the question in this case is whether or not he met the criteria contained in Army Regulation 600-8-22 to be awarded the Purple Heart.  

2.  The applicant's contentions have been considered.  However, after a thorough review of the available documentation, it appears the applicant is not entitled to be awarded the Purple Heart as he does not meet the criteria contained in the applicable regulation.

3.  In accordance with Army Regulation 600-8-22, the wounds or injuries for which the award of the Purple Heart 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.

4.  While concussion injuries caused as a result of enemy-generated explosions justify award of the Purple Heart, the applicant did not receive medical treatment for his concussion, because the evaluations and testing that he underwent do not constitute medical treatment.

5.  The fact that the applicant's teammate was erroneously awarded the Purple Heart for his Grade 1 concussion during the same incident has been considered. However, the erroneous award of the Purple Heart to his teammate does not justify awarding him the Purple Heart.

6.  In view of the foregoing, regrettably there is no basis for granting the applicant's 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.




      _______ _  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.

ABCMR Record of Proceedings (cont)                                         AR20090001323



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ABCMR Record of Proceedings (cont)                                         AR20090001323



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