BOARD DATE:	  17 September 2009

		DOCKET NUMBER:  AR20090007690 


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.

2.  The applicant states, in effect, that although he sustained an injury while serving in Iraq on Easter Sunday in 2004, he was not awarded the Purple Heart.  The applicant continues that his previous attempts to rectify this situation have been unsuccessful.

3.  The applicant provides copies of two memoranda, a DD Form 689 (Individual Sick Slip), a Standard Form 600 (Chronological Record of Medical Care), and a DA Form 2173 (Statement of Medical Examination and Duty Status) as documentary evidence 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 DD Form 214 (Certificate of Release or Discharge from Active Duty) for the period ending 4 March 2005 shows that as a member of the U.S. Army Reserve, he was ordered to active duty in support of Operation Iraqi Freedom and served for the period 7 December 2003 through 4 March 2005.  Item 12f (Foreign Service) of this form shows he served overseas for a period of 0 years, 3 months, and 3 days.  Item 18 (Remarks) of this form shows the applicant served in Iraq during the period 5 March 2004 through 7 June 2004.

3.  Item 13 (Decorations, Medals, Badges, Citations, and Campaign Ribbons Awarded or Authorized) of the applicant's DD Form 214 shows the applicant was awarded or authorized the National Defense Service Medal (2nd Award); the Global War on Terrorism Expeditionary Medal; the Army Service Ribbon; the Armed Forces Reserve Medal with Mobilization Device; and the Expert Marksmanship Qualification Badge with Rifle Bar (M-16), Hand Grenade Bar, and Pistol Bar (9mm).  This form does not show award of the Purple Heart.

4.  The applicant's official military personnel file does not indicate he was awarded the Purple Heart.

5.  A DD Form 689, dated 14 April 2004, shows the applicant received follow-up medical treatment for injuries he sustained as the result of an improvised explosive device (IED) explosion on 11 April 2004.

6.  A Standard Form 600, dated 9 June 2004, shows the applicant received medical attention at the Ireland Army Community Hospital located at Fort Knox, Kentucky, for injuries sustained as the result of his vehicle being struck by an IED while serving in Southwest Asia.

7.  Headquarters, U.S. Army Medical Department Activity, Fort Knox, memorandum, dated 1 October 2004, subject:  Evaluation Letter for [applicant's name and social security account number], shows the applicant was assigned to the Medical Holding Company effective 9 June 2004.  The commander of the Medical Holding Company stated, in pertinent part, that the applicant was physically incapable of performing his duties in military occupational specialty 21B (Combat Engineer) due to his recent diagnosis with lumbago.  The commander continued that this trauma occurred when the applicant was affected by the impact of IEDs or roadside bombs.  The commander recommended that the applicant be declared unfit for duty as a 21B and for the needs of the Army.

8.  A Standard Form 502 (Narrative Summary), dated 4 October 2004, shows the applicant underwent a physician-directed medical evaluation board to evaluate his medical condition following his sustainment of injuries resulting from his vehicle being hit by an IED while deployed in Iraq.

9.  A DA Form 2173, dated 22 December 2004, shows the applicant underwent a medical examination at the 15th Forward Service Battalion Aid Station located in Iraq on 12 April 2004.  This form shows that on 11 April 2004, in the vicinity of Baghdad, Iraq, an IED exploded within 15 feet of the applicant's vehicle which caused the vehicle to flip and resulted in an injury to the applicant's back.  This incident was determined to have occurred in the line of duty.

10.  Headquarters, U.S. Army Armor Center and Fort Knox, Fort Knox, Orders 041-0157, dated 10 February 2005, released the applicant from assignment and duty effective 4 March 2005 because of physical disability incurred while entitled to basic pay and under conditions that permitted his placement on the Temporary Disability Retired List (TDRL) effective 5 March 2005 with a disability rating of 40 percent.  These orders also show the applicant's disability was based on injury or disease received in the line of duty as a direct result of armed conflict or caused by an instrumentality of war and incurred in the line of duty during a period of war as defined by law.  These orders concluded that the applicant's disability resulted from a combat-related injury.

11.  Item 23 (Type of Separation) of the applicant's DD Form 214 shows he was retired.  Item 28 (Narrative Reason for Separation) of this form shows he was retired as the result of temporary disability.

12.  U.S. Army Human Resources Command, Alexandria, Virginia, Permanent Orders 101-30, dated 11 April 2007, awarded the applicant the Combat Action Badge for actively engaging or being engaged by the enemy on 11 April 2004.  A DD Form 215 (Correction to DD Form 214, Certificate of Release or Discharge from Active Duty), dated 11 April 2007, corrected the applicant's DD Form 214 for the period ending 4 March 2005 by adding the Combat Action Badge to item 13 of the form.

13.  U.S. Army Physical Disability Agency, Washington, DC, Orders D263-02, dated 19 September 2008, removed the applicant from the TDRL effective 19 September 2008 because of permanent disability and permanently retired him effective 20 September 2008.  These orders also show the applicant's disability was based on injury or disease received in the line of duty as a direct result of armed conflict or caused by an instrumentality of war and incurred in the line of duty during a period of war as defined by law.  These orders concluded that the applicant's disability resulted from a combat-related injury.

14.  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 military medical personnel, and the medical treatment must have been made a matter of official record.

DISCUSSION AND CONCLUSIONS:

1.  The applicant's contention that he is entitled to award of the Purple Heart due to wounds he received as the direct result of a hostile action was carefully considered.

2.  The evidence shows the applicant sustained injuries as a direct result of hostile action.  His injuries required treatment by military medical personnel and the medical treatment was made a matter of official record.

3.  Medical documentation confirms the events of the incident during which the applicant sustained combat-related injuries caused by an instrumentality of war, that the injuries were incurred in the line of duty during a war period, and his receipt of medical treatment.

4.  The evidence fulfills all of the prescribed regulatory criteria and is sufficient to base award of the Purple Heart in this case.  Therefore, the applicant is entitled to award of the Purple Heart and correction of his records to show award of the Purple Heart for wounds sustained as the result of a hostile act on 11 April 2004 while he was serving in Iraq.

BOARD VOTE:

____x___  ____x___  ___x____  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION


BOARD DETERMINATION/RECOMMENDATION:

The Board determined that the evidence presented was sufficient to warrant a recommendation for relief.  As a result, the Board recommends that all Department of the Army records of the individual concerned be corrected to show award of the Purple Heart for wounds sustained as the result of a hostile act on 11 April 2004 while he was serving in Iraq.



      ___________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)                                         AR20090007690



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ABCMR Record of Proceedings (cont)                                         AR20090007690



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