IN THE CASE OF:	  

		BOARD DATE:	  7 July 2009

		DOCKET NUMBER:  AR20090004308 


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 he be awarded the Purple Heart.

2.  The applicant states that he believes he deserves the award of the Purple Heart due to injuries he sustained to both knees in an enemy mortar attack.

3.  The applicant provides a DD Form 689 (Individual Sick Slip), a one-page explanation of the events surrounding his injuries, and an unsigned narrative for the Combat Action Badge (CAB) submitted by a major.

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 enlisted in the South Carolina Army National Guard (SCARNG) on 26 June 1978 for a period of 6 years.  He completed his training as a combat engineer and was returned to his SCARNG unit where he has continued to serve through a series of continuous reenlistments.  He was promoted to the pay grade of E-4 on 22 February 2000.  He received his Notification of Eligibility for Retired Pay (20-year letter) on 1 October 2000.

3.  On 10 February 2003, he was ordered to active duty with his unit in support of Operation Enduring Freedom/Iraqi Freedom.  He deployed to Iraq on 18 April 2003 and served until 4 March 2004 when he was returned to Fort Stewart, Georgia, and was honorably released from active duty (REFRAD) due to completion of required service.  There is no indication in the available records to show that he was ever awarded the Purple Heart or that he was wounded/injured as a result of enemy action.

4.  The applicant's records contain a medical/physical examination dated 5 June 2005; however, no mention is made of any wounds or injuries incurred.

5.  The individual sick slip provided by the applicant indicates that on 5 November 2003 the applicant was treated based on an enemy mortar attack that hit the applicant's vehicle and he injured his lower back when he was blown off his truck and he also injured his neck when he hit the ground.  In the medical officer's section of the sick slip, the remarks indicate "IB 800mg 1x mrx shot R hip pain 800mg furnech."  The attending medical officer did not authenticate the sick slip with his signature.  The staff of the Board has been unable to authenticate the commander's signature and the name of the attending physician and there is no indication that he was reported as a casualty.

6.  The supporting statement submitted by the applicant describes events that occurred from 10 October 2003 to 12 October 2003.  The narrative for the CAB describes events that occurred on 4 November 2003.

7.  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.



DISCUSSION AND CONCLUSIONS:

1.  While the sincerity of the applicant's claim that he was injured during a mortar attack is not in doubt, there simply is not enough evidence to establish that such was the case.

2.  The sick slip the applicant provides was not authenticated by a medical officer and the validity of the sick slip cannot be determined based on the available evidence.

3.  The statement provided by the applicant indicates that his injury occurred in October 2003; however, he also provides a narrative for award of the CAB that describes events in November 2003.

4.  Therefore, in the absence of more convincing evidence that establishes that he was injured as a result of enemy action and that treatment for that injury was made a matter of official record, there appears to be no basis to award him the Purple Heart at this time.

5.  In order to justify correction of a military record, the applicant must show, or it must otherwise satisfactorily appear, that the record is in error or unjust.  The applicant has failed to submit evidence that would satisfy this requirement. 

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

____X___  ____X__  ___X____  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

1.  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.



2.  The Board wants the applicant and all others concerned to know that this action in no way diminishes the sacrifices made by the applicant in service to the United States during Operations Enduring Freedom and Iraqi Freedom.  The applicant and all Americans should be justifiably proud of his service in arms.



      ____________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)                                         AR20090004308



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ABCMR Record of Proceedings (cont)                                         AR20090004308



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