IN THE CASE OF:	  

		BOARD DATE:	  28 October 2010

		DOCKET NUMBER:  AR20100010526 


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 reconsideration of the request for the Purple Heart for his bad back.  He also initiates a new request for physical disability retirement or separation.

2.  The applicant states that he wants to modify his contemporaneous sworn statement that he was not injured in the incident.  He really did not realize that he had been injured because of the "heat of battle."  He had witnessed vehicles destroyed and his fellow Soldiers injured.  The shock and adrenaline from the incident kept him from recognizing that he, himself, had been injured.

3.  The applicant provides a 22 October 2009 letter from an orthopedist, a letter to a chiropractor, and a 1 October 2009 magnetic resonance imaging (MRI) report.

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 AR20090000308, on 9 June 2009.

2.  The applicant provided a new argument that will be considered by the Board.



3.  The original case considered the applicant's evidence that showed:

   a.  The narrative description in the recommendation for the Combat Action Badge relates that, on 9 May 2007 while traveling north on main supply road Tampa towards Scania, the rear gun truck (that the applicant was driving) was hugging the median and driving approximately 25 miles per hour when a series of four blasts about 5-10 seconds apart were heard and felt.  The first three improvised explosive devices (IEDs) detonated in the median of the road and were close enough to jar the vehicle violently.  The fourth blast occurred on the side of the north bound lane of the road at about the 5 o'clock position.  All blasts happened after their vehicle had passed.

   b.  The applicant in sworn statement, dated 14 May 2007, stated his vehicle was hit by four IEDs which lifted the rear of the truck causing a little damage to the truck (emphasis added).  The gunner, Specialist D____, was hit by small fragments of metal from the IED and debris from the road.  He also hurt his wrist from being slammed against the vehicle.  The applicant reported that Captain J____ said his back was hurting really bad from being thrown around and that he, the applicant, did not receive any injury.
   
   c.  Captain  J____ swore the truck received minor damage.  He stated that Specialist D____ was hit by small fragments of metal and debris from the IED and the road and sustained an injured wrist from being slammed against the vehicle.  The captain stated that his back was hurting really bad from the jolt and that the applicant had reported that he was OK.  Upon arrival, Specialist D____ and he went to the Theater Medical Clinic and were checked out.  He received a shot of Tordal in his hip for muscle spasms and pain.  Specialist D----'s wrist was broken.  The applicant was scared but refused to see a doctor.
   
   d.  Specialist D____'s sworn statement related that he was hit by small fragments of metal and debris from the IED and the road and his wrist was fractured from being slammed against the vehicle.  He stated that Captain J____ said his back was hurting really bad from the jolt and the applicant did not receive any injury.

4.  The original case recommended the applicant be awarded the Combat Action Badge and denied award of the Purple Heart.  The Secretarial Authority approved those recommendations.

5.  An 8 March 2008 recommendation for award of the Army Commendation Medal for his 13-month tour mentioned neither the specific 9 May 2007 convoy nor the fact that the applicant had been wounded.

6.  The applicant submitted a 22 October 2009 letter from a medical doctor to support his request for consideration.  That letter reports the applicant's narrative of the incident.  It includes the following description, "Back at the forward 
operation base, inspection revealed significant damage to the chassis and undercarriage of the vehicle, with twisting of the chassis and widespread damage to the undercarriage (emphasis added).  This gives an indication of the magnitude of the impact."

7.  On 29 August 2008, the applicant was released from active duty due to the completion of required service.  He was transferred to the U.S. Army Reserve Control Group (Reinforcement) with an honorable characterization of service.

8.  Army Regulation 600-8-22 (Military Awards) states the Purple Heart is awarded for a wound sustained while in action against an enemy or 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.

9. Title 10, U.S. Code, chapter 61, provides disability retirement or separation for a member who is physically unfit to perform the duties of his office, rank, grade or rating because of disability incurred while entitled to basic pay.

10.  Army Regulation 40-501 (Standards of Medical Fitness), chapter 3, as amended, provides that for an individual to be found unfit by reason of physical disability, he must be unable to perform the duties of his office, grade, rank or rating.  Specifically, possession of one or more of the conditions listed in this chapter does not mean automatic retirement or separation from the Service.  Many of the conditions listed in this chapter fall below retention standards only if the condition has precluded or prevented successful performance of duty.  When a condition of long standing has not prevented the Soldier from performing assigned duties, then the Soldier meets the standard and an medical evaluation board is not required.

DISCUSSION AND CONCLUSIONS:

1.  The applicant wants to modify his contemporaneous sworn statement that he was not injured in the incident.  He really did not realize that he had been injured because of the "heat of battle."  He had witnessed vehicles destroyed and his 


fellow Soldiers injured.  The shock and adrenaline from the incident kept him from recognizing that he, himself, had been injured.

2.  The sworn statements by the applicant and his companions were made five days after the incident.  Claiming he did not realize he was injured because of the "heat of battle" seems improbable.  Furthermore, the applicant's unsubstantiated assertions to a doctor some two-and-a half years later cannot outweigh the sworn statements made at the time.  In any case, the fact remains that he did not receive treatment for any back injury at the time.

3.  In regard to his request for the Purple Heart, there is insufficient believable evidence to overcome the original decision.

4.  The applicant's continued performance of duty raised a presumption of fitness which he has not overcome by evidence of any unfitting, acute, grave illness or injury concomitant with his separation.  His performance of duty until separation precludes his separation due to physical disability.

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

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

___X____  ___X____  ____X___  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

1.  In regard to his request for award of the Purple Heart, 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 AR20090000308, dated 9 June 2009, or for other correction of the records of the individual concerned.

2.  In regard to his request for a physical disability retirement or separation, 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)                                         AR20100010526





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ABCMR Record of Proceedings (cont)                                         AR20100010526



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