IN THE CASE OF:	

		BOARD DATE:	1 September 2009    

		DOCKET NUMBER:  AR20090006874 


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, in effect, award of the Purple Heart (PH).

2.  The applicant states, in effect, that he was wounded while serving in support of Operation Just Cause in Panama.  He indicates he sustained a shrapnel wound to his upper left thigh when a vehicle was blown-up at a checkpoint.  He also states that he received medical treatment both in the field and at Naval Air Station(NAS), Jacksonville. 

3.  The applicant provides the following documents in support of his application:  two active duty orders, amendment orders, award orders, Internet Document titled "Operation Just Cause", Undated Letter, three medical record document extracts, DA Form 2823 (Sworn Statement), a copy of an US Armed Forces  Identification Card, DA Form 2139 (Military Pay Voucher), and a Xeroxed copy of four military insignia and patches.

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 after having prior military service, he enlisted and entered in the Florida Army National Guard (FLARNG) on 1 March 1985.  He was trained in, awarded, and served in military occupational specialties (MOS) 63B (Light Wheel Vehicle Mechanic) and 67N (Airplane Repairer).

3.  State of Florida, Department of Military Affairs, Office of the Adjutant General, Orders Number 185-a dated 24 October 1989, ordered the applicant to active duty to report to Fort Clayton, Panama for the period 15 November 1989 to 12 January 1990.

4.  A DA Form 2173 (Statement of Medical Examination and Duty Status) shows that the applicant was on duty in the Republic of Panama in support of Operation Upkeep on 6 January 1990, when the driver of the military vehicle in which he was a passenger, was making a "U" turn on the main highway causing the load to shift in the trailer, resulting in the vehicle overturning and the applicant being injured.  It also shows that the applicant received a laceration to his left thigh and multiple contusions.  

5.  An undated Alpha Company, 193rd Support Battalion, Memorandum, shows that the applicant was injured in a vehicle accident on 6 January 2006.  The applicant issued a statement confirming the details of his accidental injury.

6.  The applicant’s Military Personnel Records Jacket (MPRJ) contains no orders or other documents showing that he was ever wounded or injured as a result of hostile action, or that he was ever recommended for or awarded the PH by proper authority.

7.  On 31 December 1993, the applicant was honorably discharged from the FLARNG.  The NGB Form 22 (Report of Separation and Record of Service) issued him at that time shows he completed 14 years, 10 months, and 1 day creditable military service.  The PH is not included among the list of awards reflected on this document.

8.  Army Regulation 600-8-2 (Military Awards) prescribes the Army’s awards policy.  Paragraph 2-8 contains guidance on awarding the PH.  It states, in pertinent part, that the PH is authorized to members who are wounded in action.  It further defines a wound as an injury to any part of the body from an outside force or agent sustained in action.  It also stipulates that the wound for which a PH is being awarded must have required treatment by medical personnel, and the records of medical treatment for the wound of injury for which the PH is being awarded must have been made a matter of official record.  

9.  The PH guidance contained in the awards regulation further states that accidents, to include accidental wounding, not related to or caused by enemy action clearly do not qualify for award of the PH.  It further states that individuals wounded or killed as a result of "friendly fire" in the "heat of battle" will be awarded the Purple Heart as long as the "friendly" projectile or agent was released with the full intent of inflicting damage or destroying enemy troops or equipment.

DISCUSSION AND CONCLUSIONS:

1.  The applicant's contention that the wounds he received to his left thigh while serving in the Panama warrants the award of the PH has been carefully considered.  However, there is insufficient evidence to support this claim.

2.  The evidence of record specifically indicates that the applicant was accidentally injured when the driver of the vehicle that he was riding in was making a "U" turn causing the load to shift inside the trailer and the vehicle to overturn, as evidenced in the DA Form 2173 and in his statement of file.  This would indicate that the applicant’s injury was a result of non hostile action.  There is no evidence to show that the applicant or his unit was actively engaged in combat with the enemy at the time of the applicant’s accidental wounding, nor is there evidence showing his vehicle was blown up as he claims.  Lacking such evidence, there is no basis to conclude the applicant’s injury was the result of enemy action.  

3.  The evidence of record provides no indication that the applicant was ever wounded in action while serving in the Panama, or shows he was ever recommended for or awarded the PH by proper authority while serving on active duty.  It is also void of any medical treatment records indicating he was ever treated for a combat-related wound or injury.  Accordingly, there is no basis upon which to grant the request relief in this case.


4.  In order to justify correction of a military record the applicant must show to the satisfaction of the Board, 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.  

5.  The applicant and all others concerned should know that this action related to award of the PH in no way diminishes the sacrifices made by the applicant in service to our Nation.  The applicant and all Americans should be justifiably proud of his service in arms.

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)                                         AR20090006874





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ABCMR Record of Proceedings (cont)                                         AR20090006874



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