BOARD DATE:	  22 December 2009

		DOCKET NUMBER:  AR20090012445 


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 on 18 June 2003, while serving in Iraq and aiding another Soldier, he was injured.  He requests awarded of the PH for the injuries he sustained while serving in Iraq.

3.  The applicant provides his DD Form 214 (Certificate of Release or Discharge from Active Duty), an American Legion letter, a Veterans Services letter, active duty orders (2), disability retirement orders, and an amendment memorandum in support of his 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 record contains Headquarters, 81st Regional Support Command, Birmingham, Alabama, Orders M-077-0001, dated 18 March 2003, which show that while serving as a member of the U.S. Army Reserve (USAR), the applicant was ordered to active duty in support of Operation Enduring Freedom (OEF), for a period of 365 days, effective 23 March 2003.  

3.  The applicant's Official Military Personnel File (OMPF) contains no documents, to include a DD Form 214, related to his active duty service between 23 March 2003 and 20 April 2004, at which time he reentered active duty for medical processing.  

4.  The applicant's Official Military Personnel File (OMPF) contains Headquarters, United States Army Garrison, Fort Gordon, Georgia, Orders Number 305-0903, dated 1 November 2005, which directed his release from active duty (REFRAD) and placement on the TDRL, effective 5 November 2005, with a 50 percent disability rating.  These orders indicate the applicant's injuries were incurred in the line of duty (LOD) as a direct result of armed conflict and/or caused by an instrumentality of war. 

5.  The DD Form 214 issued to the applicant upon his placement on the TDRL shows he entered active duty for that period on 20 April 2004 and that he had completed 7 months and 19 days of active military service during the period covered by the DD Form 214 (20 April 2004 – 4 November 2005).  Item 13 shows he earned the following awards:  National Defense Service Medal (NDSM) with bronze service star, Army Commendation Medal (ARCOM) 6th Award, Army Achievement Medal (AAM) 6th Award, Army Service Ribbon (ASR), Armed Forces Reserve Medal (AFRM) with "M" Device, Global War on Terrorism Service Medal (GWOTSM), and Iraq Campaign Medal (ICM).  

6.  The applicant's OMPF also contains a DA Form 199 (Physical Evaluation Board (PEB) Proceedings), dated 5 May 2009, which show a PEB found the applicant physically unfit for further service and recommended he be permanently retired by reason of disability with a combined rating of 70 percent, based on blindness in his left eye secondary to an improvised explosive device (IED), Post Traumatic Stress Disorder (PTSD), right shoulder pain, and Traumatic Brain Injury (TBI) secondary to his IED blast with headaches.  The PEB further found these conditions were incurred in the line of duty and were the proximate result of performing duty. 

7.  U.S. Army Physical Disability Agency (USAPDA) Orders D147-109 directed the applicant's removal from the TDRL and placement on the Retired List by reason of permanent disability with a 70 percent disability rating, effective 27 May 2009. 
8.  A review of the Defense Finance and Accounting Service pay record confirms the applicant received hostile fire pay/imminent danger pay for his service in Iraq in support of OIF during the period 18 May 2003 through 31 December 2003.

9.  Army Regulation 600-8-22 (Military Awards) prescribes Army policy and criteria concerning individual military awards.  Paragraph 2-8 contains the regulatory guidance pertaining to awarding the PH.  It states, in pertinent part, that in order to award a PH there must be evidence that the wound for which the 
award is being made was received as a result of enemy action, that it required treatment by military medical personnel, and a record of this treatment must have been made a matter of official record.  

10.  Paragraph 2-8g of the awards regulation provides examples of enemy-related injuries which clearly justify award of the Purple Heart.  These examples include an injury caused by enemy placed mine or trap and concussion injuries caused as a result of enemy generated explosions. 

11.  Paragraph 2-17 contains guidance on the ICM.  It states, in pertinent part, that the ICM is authorized to members who served in Iraq for 30 consecutive or 60 non-consecutive days between 19 March 2003 to a future date to be determined by the Secretary of Defense.  One bronze service star shall be worn on the suspension and campaign ribbon of the ICM for 1 or more days of participation in each designated campaign phase.  Approved designated ICM campaign phases and inclusive periods are:  Liberation of Iraq from 19 March 2003 through 1 May 2003; Transition of Iraq from 2 May 2003 through 28 June 2004; Iraqi Governance from 29 June 2004 through 15 December 2005; and National Resolution from 16 December 2005 to a date to be determined.

12.  Army Regulation 635-5 (Separation Documents) prescribes the separation documents that must be prepared for Soldiers on retirement, discharge, release from active duty service, or control of the Active Army.  It also establishes standardized policy for preparing and distributing the DD Form 214.  Chapter 2 contains preparation instructions for the DD Form 214.  The instructions for item 12f state that all overseas service completed during the period covered by the DD Form 214 will be entered.  The instructions for item 13 state, in pertinent part, that all awards earned during all periods of service will be entered.  

DISCUSSION AND CONCLUSIONS:

1.  The applicant's contention of entitlement to award of the PH was carefully considered and found to have merit.  By regulation, an injury caused by enemy placed mine or trap and concussion injuries caused as a result of enemy generated explosions clearly qualify an individual for award of the PH.  
2.  The evidence of record confirms the applicant was retired by reason of disability in part based on blindness in his left eye and a TBI that were the result of an IED explosion in Iraq.  As a result, the regulatory burden of proof necessary to support award of the PH has been satisfied in this case and it would be appropriate to award the applicant the PH and to add it to his record and 
DD Form 214 at this time.  

3.  The evidence of record further confirms that based on his service in Iraq during the period 18 May 2003 through 31 December 2003, the applicant was credited with participating in two Iraq campaigns.  Therefore, it would be appropriate to correct his record and DD Form 214 to show his entitlement to the ICM with two bronze service stars.

4.  The applicant's record is void of any documents or orders related to active service performed between 23 March 2003 and 20 April 2004.  Further, there is no DD Form 214 on file for active service performed during this period.  The applicant is advised that if he wishes to correctly document his service performed during this period he should reapply and provide a DD Form 214 for the period and any other documents or orders issued during the period.  

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 by awarding him the Purple Heart, for being wounded in action in Iraq; by adding the Purple Heart to item 13 of his 4 November 2005 DD Form 214; and providing him a correction to his separation document that includes this change.  



      _______ _   __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)                                         AR20090012445



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ABCMR Record of Proceedings (cont)                                         AR20090012445



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