IN THE CASE OF:	

		BOARD DATE:	  29 April 2010

		DOCKET NUMBER:  AR20090018485 


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, through counsel, reconsideration of his earlier request for award of the Purple Heart.

2.  The applicant states that his line of duty injury was overlooked during the earlier consideration for award of the Purple Heart.

3.  The applicant provides a copy of a previously submitted DA Form 2173 (Statement of Medical Examination and Duty Status), dated 26 October 2005, and a copy of the Board's letter, dated 15 December 2009, administratively closing his case.

CONSIDERATION OF EVIDENCE:

1.  Incorporated herein by reference are military records which were summarized in the previous consideration of the applicant's case by the Army Board for Correction of Military Records (ABCMR) in Docket Number AR20080014002, on 2 December 2008.

2.  The applicant did not submit any new evidence which was not previously reviewed by the ABCMR; however, he submitted a new argument that his line of duty injury was overlooked, which was not previously considered.  Therefore, it is considered new evidence and as such, warrants consideration by the Board.


3.  Having had prior service, he enlisted in the U.S. Army Reserve (USAR) on 29 June 1986 and served through multiple reenlistments.  He initially held military occupational specialty (MOS) 62G (Quarry Specialist) and at some point during his career he held MOS 11B (Infantryman).  He also attained the rank/grade of sergeant first class (SFC)/E-7.

4.  On 7 December 2003, he was ordered to active duty as a member of his Reserve unit in support of Operation Iraqi Freedom (OIF) and subsequently served in Iraq from 10 March 2004 to 9 March 2005.  He was assigned to the 980th Combat Engineer Battalion.

5.  On an unknown date in September 2004 while in Iraq, he was riding in a convoy when the convoy was hit by an improvised explosive device (IED).  As he tried to dismount, he fell from his truck and hurt his back during the fall.

6.  He was honorably released from active duty to the control of his USAR unit on 29 March 2005.  Item 13 (Decorations, Medals, Badges, Citations and Campaign Ribbons Awarded or Authorized) of his DD Form 214 (Certificate of Release or Discharge from Active Duty) does not show award of the Purple Heart.

7.  On 26 October 2005, a DA Form 2173 was initiated regarding his injury.  This form was further completed by an attending physician on 4 November 2005 and shows the following entries:

	a.  Item 9 (Hour and Date Examined) shows the entry "No documentation in this packet."

	b.  Item 10 (Nature and Extent) shows an "X" in the "Disease" block (and the attending physician's initials) and the entry "to back, multi-level degenerative disc disease."

	c.  Item 15 (Details of the Accident or History of Disease) shows the entry "Sep 04 - injured back during IED ambush.  Thorough evaluation at redeployment - DX (diagnosis) Herniated disc; also being treated for PTSD (Post Traumatic Stress Disorder)."

8.  The applicant’s medical records are not available for review with this case.

9.  The Army Casualty and Mortuary Branch, U.S. Army Human Resources Command, Alexandria, VA, has no record of a casualty report for an injury or wound sustained by the applicant as a result of enemy action.


10.  The applicant previously submitted the following documents with his request that was administratively closed:

	a.  A DA Form 2173, dated 19 February 2009, showing he was diagnosed with sleep apnea after returning from deployment in Iraq.

	b.  A copy of his Department of Veterans Affairs (DVA) rating decision, dated 15 October 2008, wherein the DVA awarded him service-disability compensation for lumbar spondylosis, post traumatic headaches and dizziness, myofascial pain, acid reflux, and PTSD.

	c.  A statement, dated 24 October 2005, from a medical doctor at Fort Sam Houston, TX, wherein the doctor stated that the applicant was undergoing treatment for a sleep disorder.

	d.  A copy of a sleep study, dated 8 September 2005.

	e.  A copy of a medical assessment report, dated 10 January 2008, concerning his eligibility for DVA vocational head injury program.

11.  Army Regulation 600-8-22 (Military Awards) provides, in pertinent part, that the Purple Heart is awarded for a wound sustained 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.  The applicant contends that he should be awarded 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 (emphasis added).  The fact that the proposed recipient was participating in direct or indirect combat operations is a necessary prerequisite, but is not sole justification for the award.

3.  The evidence of record shows the applicant was riding in a truck in a convoy that was attacked by an IED explosion.  He fell from the truck as he was trying to dismount it.  There is no record that the explosion (enemy action) caused him to fall, there is no casualty report, and there is no record of treatment.  However, there is a later line of duty determination of a degenerative disc disease.
4.  The criteria for an award of the Purple Heart requires the submission of substantiating evidence to verify that the injury/wound was the result of hostile action, the injury/wound must have required treatment by medical personnel, and the medical treatment must have been made a matter of official record.  None exists in his case. 

5.  Notwithstanding the applicant's sincerity, in the absence of a completed, authenticated, and verified casualty report, or other corroborating evidence, which clearly shows he suffered a wound or injury as a result of hostile action, that he was treated for this wound or injury, and that his treatment was made a matter of official records, there is insufficient to award the applicant the Purple Heart in this case.

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 to amend the decision of the ABCMR set forth in Docket Number AR20080014002, on 2 December 2008.



      __________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)                                         AR20090018485



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ABCMR Record of Proceedings (cont)                                         AR20090018485



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