IN THE CASE OF:	  

		BOARD DATE:	       14 JULY 2009

		DOCKET NUMBER:  AR20090002349 


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 that his DD Form 214 (Certificate of Release or Discharge from Active Duty) be corrected to add the Purple Heart, the Iraq Freedom Medal, and the Global War On Terrorism Expeditionary Medal (GWOTEM).

2.  The applicant states that his total active duty service time is just over 2 years.  The orders he served under stated that the purpose of his active duty was to support Operation Enduring Freedom and Operation Iraqi Freedom.  In addition, he was wounded while on active duty and not awarded the Purple Heart.  He believes he was not given these awards as retaliation against him for a complaint he made.

3.  The applicant provides excerpts from his military records which include active duty orders for 14 days, 9 days, 17 days, 4 days, 17 days, 14 days, 14 days, 4 days, 5 days, 16 days, 17 days, 10 days, 31 days, 29 days, 30 days, 30 days, 4 days, and the orders which resulted in his last DD Form 214.  In those orders it was specified that the applicant was being mobilized with his unit in support of OEF for duty at Guantanamo Bay, Cuba.  The applicant also submits military medical records which show that he was injured when a large steel structure fell on him at work, and that he was exposed to body fluids when a detainee threw body fluids out of his cell onto the applicant.




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 while a Reservist assigned to a U.S. Army Reserve (USAR) unit in pay grade E-5, he entered active duty in support of OEF on 11 April 2004, served in Cuba from 11 May 2004 to 16 March 2005, and was honorably released from active duty on 8 April 2005.  The DD Form 214 he was issued shows, in pertinent part, that the applicant was awarded the National Defense Service Medal and GWOTSM.

3.  Army Regulation 600-8-22 (Military Awards) provides that the Purple Heart is awarded for wounds sustained 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 a medical officer, and the medical treatment must have been made a matter of official record.

4.  Headquarters, U.S. Army Human Resources Command message, dated 17 March 2004, announced implementing instructions for the Global War on Terrorism Expeditionary Medal (GWOTEM) and the Global War on Terrorism Service Medal (GWOTSM).  In pertinent part, the message states that these medals will be awarded to recognize all members of the armed forces of the United States serving in or in support of the Global War on Terrorism operations, on or after 11 September 2001 to date to be determined. 

5.  Initial award of the GWOTEM is limited to Soldiers deployed abroad in operations Enduring Freedom and Iraqi Freedom in the following Department of Defense designated specific geographic areas of eligibility (AOE): Afghanistan, Bahrain, Bulgaria (Bourgas), Crete, Cyprus, Diego Garcia, Djibouti, Egypt, Eritrea, Ethiopia, Iran, Iraq, Israel, Jordan, Kazakhstan, Kenya, Kuwait, Kyrgyzstan, Lebanon, Pakistan, Philippines, Qatar, Romania (Constantan), Saudi Arabia, Somalia, Syria, Tajikistan, Turkey (east of 35 degrees east latitude) Turkmenistan, United Arab Emirates, Uzbekistan, Yemen, that portion of the Arabian Sea north of 10 degrees north latitude and west of 68 degrees longitude, Bab El Mandeb, Gulf of Aden, Gulf of Aqaba, Gulf of Oman, Gulf of Suez, that portion of the Mediterranean Sea east of 28 degrees east longitude, Persian Gulf, Red Sea, Strait of Hormuz, and Suez Canal.  To be eligible, for the GWOTEM a Soldier must be assigned, attached or mobilized to a unit participating in designated operations for 30 consecutive days or 60 nonconsecutive days.

6.  On 23 September 2005, the HRC announced a correction to the designated area of eligibility for the GWOTEM.  This correction added Colombia and Guantanamo Bay, Cuba, to the AOE effective 11 September 2001.

DISCUSSION AND CONCLUSIONS:

1.  The applicant has not submitted any documentation to show that he was wounded as a result of hostile action.  The large steel structure that fell on him was a work-related accident, and there is no evidence that the body fluid thrown at him wounded him.  As such, there is insufficient evidence in which to award the applicant the Purple Heart.

2.  The applicant served in a country authorized the award of the GWOTEM.  As such, he is entitled to this award.

3.  There is no such award as the Iraq Freedom Medal.  As such, this is not further addressed in these proceedings.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

____X____  ____X____  ____X____  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

1.  The Board determined that the evidence presented was sufficient to warrant a recommendation for partial relief.  As a result, the Board recommends that all Department of the Army records of the individual concerned be corrected by adding the GWOTEM to his DD Form 214 for the period ending 8 April 2005.

2.  The Board further determined that the evidence presented is insufficient to warrant a portion of the requested relief.  As a result, the Board recommends denial of so much of the application that pertains to the Purple Heart.  




      _______ _   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)                                         AR20090002349





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ABCMR Record of Proceedings (cont)                                         AR20090002349



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