IN THE CASE OF:	

		BOARD DATE:	  24 March 2009

		DOCKET NUMBER:  AR20090001346 


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, reconsideration of his earlier petition to be awarded the Purple Heart (PH).  

2.  The applicant states, in effect, he is submitting new evidence to support his contention that he was wounded in action in Afghanistan on 27 March 2005.  

3.  The applicant provides the following documents as new evidence:  self-authored DA Form 2823 (Sworn Statement), dated 10 January 2009; DD Form 2215E (Reference Audiogram); Department of Veterans Affairs (VA) rating decision, dated 17 October 2007; IAARNG-PHA Draft Form 2007 (Periodic Health Assessment (PHA)), dated 8 May 2007; and JMSP & Associates, Inc. Audiogram, dated 5 May 2007. 

CONSIDERATION OF EVIDENCE:

1.  Incorporated herein by reference are military records which were summarized in the previous consideration of the applicant's case by the Army Board for Correction of Military Records (ABCMR) in Docket Number AR20080009247, on 24 September 2008.  

2.  During its initial review of the case, the Board determined there was insufficient evidence to confirm the applicant's tinnitus was the result of being wounded as a result of enemy action.  


3.  The applicant submits a sworn statement, dated 10 January 2009, as new evidence.  In his statement, he indicated that on 27 March 2005, while on a mission to retrieve captured enemy combatants, his base came under attack and he ran to a bomb shelter.  He claims the last thing he remembers is one of his Soldiers shaking him and pulling him up in order to continue to the bomb shelter. He later discovered that the blast from a mortar round that landed knocked him down.  He claims that once the all clear sounded, his Soldier assisted him to the medical tent because he had a headache from hitting his head after falling down as a result of the blast wave and had a hard time hearing.  He states the doctor who treated him informed him he suffered a mild concussion and confirms this in the Standard Form (SF) 600 (Chronological Record of Medical Care) he completed documenting the treatment.  He received the Combat Action Badge (CAB) based on this incident.

4.  The applicant's record contains an SF 600 that confirms the applicant was treated for a concussion on 27 March 2005 that he received as a result of a rocket/mortar round explosion.  He was prescribed Ibuprofen.

5.  The applicant also provided a third-party sworn statement from a Soldier who was present with him in Afghanistan on 27 March 2005, when their base came under attack.  He confirms the applicant was knocked down as a result of a blast from a mortar round and that he helped the applicant to the bomb shelter and walked the applicant to the medical station after the all clear was given.  

6.  The applicant's record contains Headquarters, Combined/Joint Task Force CJTF-76, Bagram Airfield, Afghanistan, Permanent Orders 5324-235, dated
20 January 2006, which awarded the applicant the CAB based on his actively engaging or being engaged by the enemy on 27 March 2005.  

7.  On 15 March 2006, the applicant was honorably released from active duty and returned to his ARNG unit after completing 1 year, 3 months, and 13 days of active duty service.  The separation document he was issued confirms he served in Afghanistan from 25 February 2005 through 22 February 2006.  

8.  Army Regulation 600-8-22 (Military Awards) contains the Army's awards policy.  Paragraph 2-8 contains guidance on award of the PH.  It states, in pertinent part, in order to support award of the PH, there must be evidence confirming that the wound for which the award is being made was received as 
a result of enemy action, that it required treatment by medical personnel, and a record of this treatment must have been made a matter of official record.  The

regulation stipulates that for award of the PH purposes, a wound is defined as an injury to any part of the body from an outside force or agent, and that a physical lesion is not required.  

9.  Paragraph 2-8g of the awards regulation provides examples of wounds that clearly justify award of the PH.  This list of examples includes subparagraph "(5) concussion injuries caused as a result of enemy generated explosions."  

DISCUSSION AND CONCLUSIONS:

1.  The applicant's contention that he is eligible to receive the PH for the injury he received during an enemy attack in Afghanistan on 27 March 2005 was carefully considered and found to have merit.  By regulation, a wound is defined as an injury to any part of the body from an outside force or agent and a physical lesion is not required for PH award purposes.  The regulation stipulates that concussion injuries caused as a result of enemy generated explosions are wounds that clearly justify award of the PH.  

2.  The original decision of the Board to deny the PH because there was insufficient evidence to determine that the applicant's tinnitus was solely related to the injury he suffered in Afghanistan on 27 March 2005 was valid.  It is extremely difficult to confirm tinnitus, which is normally a progressive condition, is related to one specific incident.

3.  However, the evidence of record confirms the applicant suffered from a concussion as a result of an explosion of an enemy generated mortar attack in Afghanistan on 27 March 2005, and that this injury required treatment by medical personnel, as evidenced by the SF 600 on file and the third-party witness statement included with the original application.  As a result, the regulatory criteria necessary to support award of the PH has been met in this case and it would be appropriate and serve the interest of justice and equity to award the applicant the PH at this time.

BOARD VOTE:

____x___  ___x____  ___x____  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION


BOARD DETERMINATION/RECOMMENDATION:

The Board determined that the evidence presented was sufficient to warrant amendment of the ABCMR’s decision in Docket Number AR20080009247, dated 24 September 2008.  As a result, the Board recommends that all Department of the Army records of the individual concerned be corrected by awarding him the Purple Heart for being wounded in action in Afghanistan on 27 March 2005; adding this award to his 15 March 2006 DD Form 214; and providing him a correction to his 15 March 2006 DD Form 214 that includes this award.



      _________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)                                         AR20090001346



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ABCMR Record of Proceedings (cont)                                         AR20090001346



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