IN THE CASE OF:	

		BOARD DATE:	9 July 2009  

		DOCKET NUMBER:  AR20090003971 


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 award of the Purple Heart in light of injuries sustained due to enemy action while in combat in Iraq.  He also requests the medical treatment document of 4 February 2004 which he provided and the relevant line-of-duty injuries be noted in his permanent record.

2.  The applicant states in January of 2004, while performing his duties as a platoon leader in charge of a convoy in Iraq, he was injured by the blast from a roadside bomb.  He sought medical treatment at Camp Doha, Kuwait, on 4 February 2004.  He further states that his Department of Veterans Affairs (VA) medical records specifically attribute his traumatic brain injury to the roadside bomb he encountered in Iraq.

3.  The applicant provides a copy of a Standard Form 600 (Chronological Record of Medical Care), a VA disability compensation document, and VA treatment records in support of this 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 he enlisted in the U.S. Army Reserve Control Group (Reserve Officers' Training Corps (ROTC)) on 23 September 1997.  He enlisted in the Army National Guard on 3 February 1998.  He was transferred back to the U.S. Army Reserve Control Group (ROTC) effective 29 August 1999 and appointed in the rank of second lieutenant on 30 August 1999.

3.  The applicant entered active duty on 10 February 2003 in support of Operation Iraqi Freedom.

4.  The Standard Form 600, dated 4 February 2004, provided by the applicant shows that he received medical care at the U.S. Army Health Clinic, Camp Doha, Kuwait.  The document shows his chief complaint was "blown ear drums" with a loss of hearing and ringing in his ears caused by improvised explosive device(s) (IED)/gunfire.

5.  The applicant was honorably released from active duty in the rank of first lieutenant and returned to his U.S. Army Reserve unit on 20 May 2004.  His military service records indicate he deployed to Kuwait/Iraq from 20 April 2003 to 5 April 2004.  While specific documentation is not available, evidence indicates the applicant was discharged sometime in 2005.

6.  Army Regulation 600-8-22 (Military Awards) prescribes Army policy and procedures concerning awards.  It provides, in pertinent part, that the Purple Heart is awarded for a wound 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 medical personnel, and the medical treatment must have been made a matter of official record.

7.  Army Regulation 15-185 (Army Board for Correction of Military Records) prescribes the policies and procedures for correction of military records by the Secretary of the Army, acting through the ABCMR.  The regulation provides that the ABCMR begins its consideration of each case with the presumption of administrative regularity.  The applicant has the burden of proving an error or injustice by a preponderance of the evidence.



DISCUSSION AND CONCLUSIONS:

1.  The applicant submitted a Standard Form 600 containing an entry indicating a complaint to medical personnel of "blown ear drums" with a hearing loss and ringing in the ears incurred as a result of a bomb blast.  However, there is no corroborating evidence in his records or provided by him that he was in the immediate vicinity of an IED blast.  There are no available medical treatment records showing he was actually treated for damage to or loss of hearing during the time frame of the alleged injury.  As such, in the absence of evidence that he was wounded or injured as a result of hostile action and an official medical record showing he was treated for such a wound, there is insufficient evidence upon which to base award of the Purple Heart.

2.  As a result, the regulatory burden of proof necessary to support award of the Purple Heart has not been satisfied in this case.  Therefore, there is insufficient basis to award the Purple Heart.

3.  As for the applicant's request that the Standard Form 600, dated 4 February 2004, which he provided be noted in his records, this document will be filed together with this record of proceedings for inclusion in his official military personnel file (OMPF).

4.  Regarding the applicant's request that relevant line-of-duty injuries be noted in his permanent record, there are no relevant line-of-duty documents available nor is it known whether a line of duty investigation was ever initiated or completed.  Therefore, this portion of the applicant's request will not be further addressed.  However, if the applicant were to locate such documents he should forward them to the Human Resources Command, St. Louis, Missouri, for filing in his OMPF.

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.



      ____________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)                                         AR20090003971



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ABCMR Record of Proceedings (cont)                                         AR20090003971



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