BOARD DATE:	  11 August 2009

		DOCKET NUMBER:  AR20090005326 


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 correction of his DD Form 214 (Certificate of Release or Discharge from Active Duty) to show award of the Purple Heart.

2.  The applicant states that he was riding in a motor vehicle in Iraq when the vehicle hit something in the road that caused it to go airborne.  He was thrown into the top of the vehicle and when he came down, he injured his back.  He was then treated at the medical unit and released to duty.

3.  The applicant provides a copy of his DD Form 214, dated 24 May 1991, and a copy of his DD Form 215 (Correction to DD Form 214), dated 4 August 1992, in support of his request.

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 records show he enlisted in the North Carolina Army National Guard (NCARNG) on 18 June 1979.  He subsequently entered active duty for training, completed basic combat and advanced individual training, and was awarded military occupational specialty 88M (Motor Transport Operator).  

3.  On 11 October 1990, the applicant was ordered to active duty in support of Operations Desert Shield/Storm and subsequently served in Southwest Asia from 5 November 1990 to 20 April 1991.  He was released from active duty to the control of his ARNG unit on 24 May 1991.

4.  Item 13 (Decorations, Medals, Badges, Citations and Campaign Ribbons Awarded or Authorized) of the DD Form 214 he was issued shows he was awarded the Army Service Ribbon, the National Defense Service Medal, the Armed Forces Reserve Medal, the Army Reserve Components Achievement Medal, the Driver/Mechanic Badge, and the Expert Marksmanship Qualification Badge with Rifle Bar (M-16).  Item 13 does not show award of the Purple Heart.

5.  On 4 August 1992, the applicant was issued a DD Form 215 that added awards of the Southwest Asia Service Medal with three bronze service stars and the Kuwait Liberation Medal.

6.  The applicant’s records do not contain orders awarding him the Purple Heart.

7.  The applicant's available medical records do not reveal a combat injury/wound or treatment of such injury/wound.

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.

9.  U.S. Total Army Personnel Command (PERSCOM) (now known as Human Resources Command or HRC) Message 171226Z January 1991, Subject:  Delegation of Wartime Award Approval Authority, provided special guidance for Operation Desert Storm.  It stated that "division commanders in the grade of major general who had troops committed to the combat operation and hospital commanders receiving casualties could award the Purple Heart to Soldiers who were wounded as the direct result, repeat, direct result of enemy action."


10.  Examples of enemy-related injuries which justify award of the Purple Heart are injuries caused by enemy bullets or shrapnel or other projectiles created by enemy action; injuries caused by enemy-placed land mine, naval mine, or trap; injuries caused by enemy released chemical, biological, or nuclear agent; injuries caused by vehicle or aircraft accident resulting from enemy fire; and concussion injuries caused as a result of enemy-generated explosions. 

11.  Examples of injuries or wounds which do not qualify for award of the Purple Heart are frostbite or trench foot injuries; heat stroke; food poisoning not caused by enemy agents; chemical, biological, or nuclear agents not released by the enemy; battle fatigue; disease not directly caused by enemy agents; accidents, to include explosive, aircraft, vehicular, and other accidental wounding not related 
to or caused by enemy action; self-inflicted wounds, except when in the heat of battle, and not involving gross negligence; Post Traumatic Stress Disorder (PTSD); and jump injuries not caused by enemy action. 

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends that his records should be corrected to show award of the Purple Heart.

2.  The Purple Heart differs from all other decorations in that an individual is not "recommended" for the decoration; rather, he or she is entitled to it upon meeting specific criteria.  When contemplating an award of this decoration, the key issue that commanders must take into consideration is the degree to which the enemy caused the injury.  The fact that the proposed recipient was participating in direct or indirect combat operations is a necessary prerequisite, but is not sole justification for award.

3.  There is no evidence in the record and the applicant has provided no evidence to show that the alleged explosion occurred as a result of enemy action, that he was involved in and/or wounded in such an explosion, that he received treatment for the alleged wound, or that his treatment was made a matter of official record.  

4.  In the absence of conclusive evidence that shows he was wounded or injured as a result of hostile action or that his injury or wound required treatment, and that the medical treatment was made a matter of official record, there is insufficient evidence to grant the applicant the Purple Heart.




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)                                         AR20090005326





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ABCMR Record of Proceedings (cont)                                         AR20090005326



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