BOARD DATE:	  17 August 2010

		DOCKET NUMBER:  AR20090021637 


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 he did sustain injuries from an improvised explosive device (IED) blast when he was in Mandali, Iraq.  He states his Line of Duty (LOD) Determination and Department of Veterans Affairs file clearly states he was injured; therefore, he should be awarded the Purple Heart for his injuries during Operation Iraqi Freedom II.

3.  The applicant provides:

* A memorandum from the West Virginia Army National Guard (WVARNG) Adjutant General (AG), dated 23 November 2009
* A Memorandum for Record (MFR) from a WVARNG colonel, dated 6 October 2009
* An MFR from a WVARNG captain, dated 3 September 2009
* A Weekly Incident Summary, dated 15 July through 21 July 2004
* A Memorandum from the Acting Chief, Military Awards Branch for the Commander, WVARNG, dated 1 August 2009
* A memorandum from the WVARNG State Surgeon to the Chief, Military Awards Branch, dated 4 July 2009
* A memorandum from the Chief, Military Awards Branch to his commander, dated 7 May 2009



* Two letters from the WVARNG AG to a member of the United States (U.S.) Senate, dated 26 September 2008 and 21 February 2007
* A letter from a member of the U.S. Senate to the WVARNG AG, dated 11 February 2008
* An undated Letter of Complaint
* A VA Rating Decision, dated 7 September 2006
* Notification of VA Rating Decision, dated 11 September 2006
* Statement of Medical Examination and Duty Status, dated 20 July 2004
* Recommendation for LOD Approval, dated 22 August 2004
* Chronological Record of Medical Care, dated 20 July 2004
* Two Sworn Statements, dated 17 August and 18 August 2004
* Soldier's Rights and Warning Statement
* Orders 276-191, dated 3 October 2003
* Administrative LOD Checklist

CONSIDERATION OF EVIDENCE:

1.  On 30 August 2002, the applicant enlisted in the WVARNG for 6 years, in pay grade E-3.  He completed training as a cavalry scout.  He was ordered to active duty effective 1 October 2003 in support of Operation Iraqi Freedom.

2.  The Statement of Medical Examination and Duty Status submitted by the applicant, dated 20 July 2004, shows he was riding in the back of a HHMV, in Mandali, Iraq, pulling rear gunner when an IED was detonated and the applicant was hit in the back of the head by a chunk of concrete.  He was examined and treated at the Task Force 150 Battalion Aid Station, Forward Operating Base Rough Rider, Iraq, at 1009 hours, and he was diagnosed by a health care specialist as having a contusion behind his left ear.  His injury was determined to have been incurred in the line of duty.

3.  The applicant's Chronological Record of Medical Care dated 20 July 2004 shows:

* He was monitored for a few hours
* Ice was placed on his contusion
* He was prescribed Piroxicam (20 milligrams)

4.  His Chronological Record of Medical Care also shows that he was released from the treatment facility at 1334 hours and returned to duty.



5.  In a sworn statement dated 17 August 2004, the applicant provided details of the events that led to his injury.  In a sworn statement dated 18 August 2004, an eyewitness (another Soldier) provided details of the events that led to the applicant's injury.  According to the eyewitness, he was in the same vehicle as the applicant when the incident occurred.  According to the applicant the eyewitness was subsequently awarded the Purple Heart as a result of the injury he incurred.

6.  On 11 September 2006, the applicant was notified by the VA that he had been awarded a 10 percent service connected disability rating for headaches due to head trauma and a 10 percent service connected disability rating for tinnitus, effective 5 March 2005.

7.  The applicant submitted a Letter of Complaint to a member of the U.S. Senate with regard to not being awarded the Purple Heart.  The senator forwarded the complaint to the WVARNG AG, who forwarded the complaint to the U.S. Army Human Resources Command (AHRC), Chief, Military Awards Branch.  On 7 May 2009, the Chief, Military Awards Branch notified the Chief, National Guard Bureau that the applicant's request for award of the Purple Heart (for injuries he received on 20 July 2004) was disapproved.  The Chief, Military Awards Branch stated in accordance with Army Regulation 600-8-22 (Military Awards), paragraph 2-8.k.(3), each approved award of the Purple Heart must exhibit all of the following factors:

* The wound, injury, or death must have been the result of an enemy or hostile act, international terrorist attack, or friendly fire
* The wound, injury must have required treatment by medical officials
* The record of medical treatment must have been made a matter of official Army records

8.  The Chief, Military Awards Branch stated the medical documentation provided indicates the applicant was evaluated after exposure to an IED blast on 20 July 2004, for a head contusion without loss of consciousness.  He stated no medical treatment was provided to the applicant and the applicant was returned to duty without limitations.  The Chief stated the applicant's VA claim indicates he suffers from headaches approximately two or three times a month as a result of service related head trauma due to a 20 July 2004 incident; however, the applicant receives no medical treatment for the headaches.  He states there are no references made to treatment by medical personnel for wounds caused by the enemy which were made as a matter of official medical record.  Therefore, the applicant did not meet the criteria for award of the Purple Heart.


9.  On 4 July 2009, the WVARNG State Surgeon contacted the Chief, Military Awards Branch requesting clarification of the applicant's case.  The WVARNG State Surgeon stated the applicant was injured in combat in Iraq in 2004 and his request for a Purple Heart had been rejected.  The State surgeon stated in his opinion, the applicant's injuries qualified for award of the Purple Heart and requested that the applicant's case be reviewed and advised of what steps could be taken to clarify the applicant's case.

10.  On 1 August 2009, the AHRC Acting Chief, Military Awards Branch notified the Commander WVARNG that the request for reconsideration of the applicant's previously disapproved award of the Purple Heart was denied because the applicant's injury did not meet the criteria for award of the Purple Heart, an acknowledgement of a contusion by medical personnel in the theater does not qualify as treatment, nor does a service connection rating by the VA for headaches or tinnitus.  The commander WVARNG was told the applicant could apply to this Board if he believed the decision in his case was unjust.

11.  The applicant submits:

* A memorandum from the WVARNG, Adjutant General, dated 
23 November 2009
* An MFR from a WVARNG colonel at the Joint Forces Headquarters, dated 6 October 2009
* An MFR from a WVARNG captain at the Joint Forces Headquarters, dated 3 September 2009

12.  In all three memorandums the preparing officer provides a summary of what occurred on 20 July 2004 and they all contend the applicant should be awarded the Purple Heart as a result of his injury.

13.  The applicant is currently a member of the WVARNG.

14.  Army Regulation 600-8-22 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.  Paragraph 2-8(8)e provides that a wound is defined as an injury to any part of the body from an outside force or agent sustained under one or more of the conditions listed in paragraph 2-8 of this regulation.  A physical lesion is not required, however, the wounds or injuries for which the award is made must have required treatment by medical personnel and records of medical treatment for wounds or injuries received in action must have been made a matter of official record.  Paragraph 2-8(8)g(5) provides that concussion injuries caused as a result of enemy-generated explosions clearly justify award of the Purple Heart.

DISCUSSION AND CONCLUSIONS:

1.  The applicant's contentions concerning award of the Purple Heart have been considered along with the documentation he submitted in support of his application.  After a thorough review of the available evidence it appears the applicant is not entitled to award of the Purple Heart as he does not meet the criteria contained in the applicable regulation.

2.  In accordance with Army Regulation 600-8-22, the wounds or injuries for which the Purple Heart is awarded must have required treatment by medical personnel and records of the medical treatment must have been made a matter of official record.

3.  While concussion injuries caused as a result of enemy-generated explosions justify award of the Purple Heart, the applicant did not receive medical treatment for a concussion.  He had a contusion behind his left ear and the treatment he received is not considered as "required" treatment.  He was monitored for a few hours, ice was placed on his contusion, and he was prescribed Piroxicam (20 milligrams).  He never lost consciousness and he was returned to duty the same day without limitations.  This does not amount to medical treatment sufficient for award of the Purple Heart.

4.  The fact that the Soldier with the applicant at the time of the incident was awarded a Purple Heart as a result of his injuries does not justify awarding the applicant the Purple Heart.

5.  In view of the foregoing, regrettably there is no basis for granting the applicant's request.

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)                                         AR20090021637



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ABCMR Record of Proceedings (cont)                                         AR20090021637



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