IN THE CASE OF:	  

		BOARD DATE:	  8 June 2010

		DOCKET NUMBER:  AR20090019016 


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 (PH).

2.  The applicant states she was not awarded the PH for an incident during her military service in Germany.  She claims she was treated for bleeding ulcers due to multiple rapes from U.S. Soldiers while serving in Germany.

3.  The applicant provides Department of Veterans Affairs (VA) rating documents in support of her 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 shows she enlisted in the Regular Army on 26 January 1988.  She was trained in and awarded military occupational specialty 94B (Food Service Specialist).

3.  The applicant's DA Form 2-1 (Personnel Qualification Record - Part II) shows she served in Germany from 23 June 1988 through 18 June 1990.  The PH is not included in the list of earned awards contained in item 9 (Awards, Decorations, and Campaigns).

4.  The applicant's record is void of any documents or orders showing she ever served in a combat area or that she was ever treated for combat-related wounds by military medical personnel.

5.  A DA Form 3822-R (Report of Mental Status Evaluation), dated 28 August 1990, shows the applicant was diagnosed with a personality disorder on 30 July 1990 and her separation for this reason was recommended by the examining psychiatrist.  The psychiatrist also confirmed she met retention standards and suffered from no disqualifying psychiatric disease or defect warranting her separation processing through medical channels.

6.  On 17 September 1990, the applicant underwent a separation physical examination.  The Standard Form 88 (Report of Medical Examination) on file documents no disqualifying medical condition.  It notes her personality disorder and anxiety in item 74 (Summary of Defects and Diagnosis); however, it confirms she was determined to be qualified for retention/separation by the examining physician in item 77 (Examinee Is/Is Not Qualified for [Separation]).  

7.  On 11 December 1990, the unit commander notified the applicant he was recommending she be separated based on her diagnosed personality disorder and advised her of her rights in connection with the action.

8.  The applicant completed an election of rights on 11 December 1990.  In this document, she acknowledged she had been afforded the opportunity to consult with legal counsel and declined the opportunity.  She further waived her right to consulting counsel and elected not to submit statements in her own behalf.

9.  On 3 January 1991, the separation authority approved the applicant's separation under the provisions of paragraph 5-13, Army Regulation 635-200 (Personnel Separations), by reason of a personality disorder and directed she receive an honorable discharge.  On 26 January 1991, the applicant was discharged accordingly.

10.  The DD Form 214 (Certificate of Release or Discharge from Active Duty) shows the applicant held the rank of specialist four/E-4 on the date of her separation.  It also shows she completed a total of 2 years, 11 months, and 23 days of active military service.

11.  Item 13 (Decorations, Medals, Badges, Citations, and Campaign Ribbons Awarded or Authorized) of the DD Form 214 issued to the applicant on 18 January 1991, shows she earned the Army Service Ribbon, Army Lapel Button, Overseas Service Ribbon, and Sharpshooter Marksmanship Qualification Badge with Rifle Bar during her active duty tenure.

12.  The applicant provides VA rating decision documents showing she has a 100-percent disability rating from the VA based on a post-traumatic stress disorder (PTSD).  The documents provide no insight as to what circumstances contributed to and/or caused her PTSD condition.

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

14.  Paragraph 2-8h of Army Regulation 600-8-22 contains examples of injuries or wounds which clearly do not justify award of the PH.  Included in this list are PTSD's.  The regulation provides no provisions for awarding the PH for non-combat related wounds/injuries.

DISCUSSION AND CONCLUSIONS:

1.  The applicant's contention that she should be awarded the PH based on being treated for bleeding ulcers resulting from multiple rapes by Soldiers has been carefully considered.  However, the evidence is not sufficient to support this claim.

2.  By regulation, in order to support award of the PH there must be evidence 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.  The regulation specifies PTSD's clearly do not qualify for award of the PH and there are no regulatory provisions allowing for award of the PH for non-combat related wounds or injuries.

3.  It should be noted that rape, perpetrated by a Soldier(s) against another Soldier, does not meet the regulatory standard for award of the PH.  In this case, such an injury would not have been combat related or caused by enemy action.

4.  The evidence of record fails to show the applicant was ever wounded as a result of enemy action or that she was ever treated for a combat-related wound/injury.  Further, the PTSD condition she suffers from clearly does not support award of the PH.  As a result, the regulatory burden of proof necessary to support award of the PH has not been met in this case.  Therefore, there is an insufficient evidentiary basis to support granting the requested relief.

5.  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.

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)                                         AR20090019016



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ABCMR Record of Proceedings (cont)                                         AR20090019016



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