IN THE CASE OF:	  

		BOARD DATE:	  2 September 2010

		DOCKET NUMBER:  AR20100009496 


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 to be awarded the Purple Heart.

2.  The applicant states that in 2004 he suffered a perforated ear drum due to an acoustic trauma and a traumatic brain injury (TBI) during an enemy rocket attack in Iraq.  He further states that he was less than 10 feet away when an enemy rocket exploded and knocked him over a concrete barrier.  He goes on to state that he was briefly knocked unconscious and when he came to he had a splitting headache and was disoriented.  He states that he did not seek medical attention until almost 7 weeks later and he did not realize it at the time, but his symptoms of dizziness, sensitivity to light, and sleep disturbances were attributed to the concussion he received.  He continues by stating that despite being home for 3 years, he still experienced many symptoms due to the TBI he sustained and he only recently sought diagnosis and treatment in the summer of 2008.  His suspicions were confirmed by a diagnosis of TBI by the Polytrauma Clinic at the Seattle Department of Veterans Affairs (VA).  He goes on to state that he provided all of the necessary documents to support his entitlement to the Purple Heart; however, officials at the U.S. Army Human Resources Command (HRC) denied his request for award of the Purple Heart.  Accordingly, he has exhausted all administrative remedies available to him.

3.  The applicant provides a list of supporting documents with 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.  On 15 November 2003, while serving in the Washington Army National Guard in pay grade E-4, the applicant was ordered to active duty in support of Operation Iraqi Freedom.  He deployed to Iraq on 12 March 2004.

3.  On 3 June 2004, the applicant went to sick call complaining of a constant ringing in his ears due to a mortar attack on 12 April 2004.  He indicated at the time that he had been near three mortar attacks since 12 April and that he had not taken any medications.  The attending physician prescribed Prednisone and a hearing test.  The applicant chose not to accept treatment at that time and was returned to duty.

4.  The serious incident report that describes the 12 April 2004 rocket attack indicates that 12 service members and 4 civilians were wounded during the attack and were evacuated to the Air Force theater hospital.  Equipment damaged during the attack consisted of four Jersey barriers and a shuttle bus stop.

5.  The applicant departed Iraq on 16 March 2005 and on 3 May 2005 he was honorably released from active duty due to completion of required service.  He had served 1 year, 5 months, and 19 days of active service during his mobilization and was deployed overseas for 1 year and 5 days.

6.  On 17 January 2007, orders were published by officials at HRC-Alexandria awarding him the Combat Action Badge for actively engaging or being engaged by the enemy on 4 June 2004.

7.  On 4 November 2008, the applicant's former supervisor (a master sergeant) submitted a DA Form 638 (Recommendation for Award) recommending the applicant for award of the Purple Heart for wounds received in action on 12 April 2004 during the rocket attack.  There is no indication that the recommendation was processed through the chain of command.  However, on 26 January 2009, HRC-Alexandria returned the request for award of the Purple Heart to the applicant without action due to the lack of necessary supporting documentation.  On 18 February 2010, HRC-Alexandria disapproved the request for a Purple Heart.

8.  On 2 October 2008, the VA changed the applicant's disability rating from 90 percent to 80 percent and assigned him a disability rating of 40 percent for TBI.

9.  On 14 April 2009, orders were published which retired the applicant by reason of physical disability with a 50-percent disability rating based on chronic cervical strain associated with degenerative disc disease and post-traumatic stress disorder from combat stressors during his March 2004 to March 2005 deployment in Iraq.  On 21 April 2009, the VA increased his disability rating to 90 percent.

10.  Army Regulation 600-8-22 (Military Awards) provides 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 a medical officer, and the medical treatment must have been made a matter of official record.

DISCUSSION AND CONCLUSIONS:

1.  The applicant's contention that he should be awarded the Purple Heart for wounds/injuries sustained on 12 April 2004 has been noted and appears to lack merit.

2.  The available evidence shows the applicant was assessed on 3 June 2008 with ringing in his ears after being exposed to rocket attack blasts 7 weeks prior and was prescribed Prednisone and offered a hearing test, both of which he declined.  He was returned to duty without limitations.

3.  Accordingly, there is insufficient evidence to show his injury was the result of enemy action and that the injury required medical treatment.  Accordingly, it does not appear that he is entitled to award of the Purple Heart.

4.  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 applicant's 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:

1.  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.

2.  The Board wants the applicant and all others concerned to know that this action in no way diminishes the sacrifices made by the applicant in service to the United States during the Global War on Terrorism.  The applicant and all Americans should be justifiably proud of his service in arms.



      _______ _  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)                                         AR20100009496



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ABCMR Record of Proceedings (cont)                                         AR20100009496



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