IN THE CASE OF:	  

		BOARD DATE:	        27 MAY 2009

		DOCKET NUMBER:  AR20090002745 


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 reconsideration of his request to be awarded the Purple Heart.

2.  The applicant states, in effect, that he injured his right forearm and elbow, his lower back, and his left shoulder, when his convoy was attacked in Afghanistan on 2 December 2007, and he is currently receiving treatment for those injuries from the Department of Veterans Affairs (VA) in Tucson, Arizona.  He goes on to state that his unit did not put him in for award of the Purple Heart because they said he did not deserve it.  However, he was having difficulty with his chain of command at the time and was always being accused of different things. 

3.  The applicant provides a privacy consent form, two letters explaining his application, photo copies of various cards, a letter from a fellow Soldier who served with him in Afghanistan, and a partial copy of his VA Rating Decision showing that he is receiving a 100% disability rating from the VA effective 23 October 2008.

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 AR20080013199 on 18 November 2008.

2.  The applicant was serving in the rank of specialist four (SP4) on 2 December 2007 when his infantry platoon was ambushed in a convoy by enemy rocket propelled grenades (RPG) and small arms fire.  The applicant was serving as a gunner in a HUMVEE turret at the time and was thrown about in the vehicle when the rocket exploded.  However, he was able to recover and engage the enemy.

3.  The applicant's medical records are not present in the available records for review by the Board.  However, previous records (Chronological Record of Medical Care) reviewed by the Board show that on 3 December 2007 the applicant was seen by a physician's assistant complaining of pain in his elbow and tail-bone (lower-back).  He was told to rest his arm, ice his elbow, apply compression, and keep the elbow elevated (R.I.C.E).  It was also noted that he had dried blood in his ear canal from the day before.  He was given 800mg of Motrin.

4.  The applicant again was examined on 5 December 2007 complaining of lower back and right elbow and arm pain.  The radiographs (X-Rays) were unremarkable.  The examining official classified his injuries as battle injuries.

5.  The applicant was an Arizona Army National Guard light weapons infantryman serving on active duty in support of Operation Enduring Freedom beginning 3 January 2007.  He deployed to Afghanistan from 28 March 2007 to 1 March 2008 and was honorably released from active duty (REFRAD) on 17 April 2008.

6.  The VA Rating Decision provided by the applicant shows that he initially received a 90% service connected combined disability rating effective 18 April 2008 and subsequently received a service connected combined VA Rating of 100%, effective 23 October 2008, for post-concussive syndrome with headaches, dizziness and latent hyperobia with accommodative dysfunction (claimed as traumatic brain injury (TBI)), migraines and blurred vision, Post-Traumatic Stress Disorder (PTSD), gastroesophageal reflex disease and hiatal hernia, left shoulder strain with degenerative changes, lumbar thoracic degenerative disc and joint disease with retrolisthesis (claimed as ostcoarthritis low back with radiculopathy, left lower extremity), left and right elbow lateral epicondylitis, left knee strain and bilateral tinnitus.

7.  The letter from a fellow Soldier (E-4) who served with him in Afghanistan indicates that the applicant was never a liability while in Afghanistan and that he did not notice any personality traits that would cause him any concern.  He continues by stating that while he did not notice any problems with the applicant, he did recognize problems with the chain of command.

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.  It also provides that examples of enemy-related injuries which justify award of the Purple Heart include injury caused by enemy bullet, shrapnel, or other projectiles created by the enemy.  Additionally, in cases of individuals injured as a result of a vehicle accident cause by enemy fire, the decision will be made in favor of the individual and the award will be made.

DISCUSSION AND CONCLUSIONS:

1.  The available evidence shows that on 2 December 2007 the applicant was engaged in an enemy action in Afghanistan which consisted of his convoy being ambushed by the enemy using RPG and small arms fire.  During the course of the engagement the applicant was thrown about the turret of his HUMVEE and complained of injury to his arm and lower back.

2.  The following day, the applicant sought treatment for his injuries, and 3 days after he again returned with the same complaints.  X-rays were taken of his arm that were unremarkable.  However, his injuries were classified by medical personnel as being battle related. 

3.  The applicant was honorably REFRAD on 17 April 2008 and was subsequently granted a 90% combined service-connected disability rating from the VA which included the injuries incurred by the applicant on 2 December 2007.  His disability rating was subsequently raised to 100%.

4.  Therefore, it is reasonable to presume that he should have been awarded the Purple Heart for his injuries in Afghanistan on 2 December 2007 and it would be in the interest of justice to do so at this time.

BOARD VOTE:

___X_____  ___X_____  ___X_____  GRANT FULL RELIEF

________  ________  ________  GRANT PARTIAL RELIEF

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION
BOARD DETERMINATION/RECOMMENDATION:

1.  The Board determined that the evidence presented was sufficient to warrant amendment of the ABCMR’s decision in Docket Number AR20080013199, dated 18 November 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 injuries received in action in Afghanistan on 2 December 2007, while serving in the rank of SP4.

2.  The Board wants the applicant and all others to know that the sacrifices he made in service to the United States during the Global War on Terrorism are deeply appreciated.  The applicant and all Americans should be justifiably proud of his service in arms.






      _______ _ 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)                                         AR20090002745





3


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1

ABCMR Record of Proceedings (cont)                                         AR20090002745



3


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1