IN THE CASE OF:	  

		BOARD DATE:	  19 October 2010

		DOCKET NUMBER:  AR20100011152 


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 was injured while serving in the Gulf War. 

3.  The applicant provides reassignment/discharge orders in support of 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.  The applicant was ordered to active duty from the Army National Guard on 
12 September 1990 in support of Operation Desert Shield/Storm.  He served as a food service specialist in Southwest Asia (SWA) from 27 September 1990 to 
19 May 1991.   
3.  Item 15 (Details of accident or history of disease) on a DA Form 2173 (Statement of Medical Examination and Duty Status), dated 23 July 1991, states in September 1990  while on duty at Fort Rucker, AL, the applicant fell from a truck while loading weapons.  He deployed for SWA the next morning and did not seek medical care.  After arrival in SWA he began to experience groin pain and limited use of his left leg.  He underwent surgery for hernia repair while in SWA.

4.  A medical record report, dated 27 January 1992, states, in pertinent part, the applicant has a history of low back pain and left lower extremity pain since a fall in September 1990.  He apparently fell backwards while loading weapons into a truck.  He landed directly on a gun rack striking the lower back. 

5.  A DA Form 199 (Physical Evaluation Board (PEB) Proceedings), dated 
2 March 1992, shows a PEB found the applicant physically unfit due to chronic low pain, intermittent, with left radicular symptoms without radiculopathy, status post injury in September 1990.  The PEB recommended a combined rating of 10 percent and that the applicant be separated with severance pay.  On 12 May 2009, the applicant concurred with the findings and recommendations and waived a formal hearing.  A revised DA Form 199, dated 27 March 1992, amended item 10a to read "The Soldier's retirement is based on disability from injury or disease received in the line of duty as a direct result of armed conflict or caused by an instrumentality of war and incurring in line of duty during a period of war as defined by law."  On 30 March 1992, the U.S. Army Physical Disability Agency approved the PEB's findings and recommendation.

6.  On 15 April 1992, the applicant was honorably discharged by reason of physical disability with severance pay (10 percent).  

7.  The applicant's DD Form 214 (Certificate of Release or Discharge from Active Duty) for the period ending 15 April 1992 does not show the Purple Heart as an authorized award.  

8.  There are no orders for the Purple Heart in the available records.

9.  Item 9 (Awards, Decorations and Campaigns) on the applicant's DA Form 2-1 (Personnel Qualification Record) does not show entitlement to the Purple Heart.

10.  In support of his claim, the applicant provided reassignment/discharge orders, dated 10 April 1992, which states, in pertinent part, "DISABILITY DID RESULT FROM A COMBAT-RELATED INJURY."

11.  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 medical personnel, and the medical treatment must have been made a matter of official record.  

12.  Title 26, U.S. Code, section 104, states that the term "combat-related injury" means personal injury or sickness which is incurred as a direct result of armed conflict, while engaged in extra hazardous service under conditions simulating war, or which is caused by an instrumentality of war.

13.  The Army Combat-Related Special Compensation website provides information pertaining to combat-related injuries that qualify through an instrumentality of war (combat vehicles, weapons, Agent Orange, etc.).  It states that incurrence during actual period of war is not required.  However, there must be a direct causal relationship between the instrumentality of war and disability.  The disability must be incurred incident to a hazard or risk of the service.  An instrumentality of war is a vehicle, vessel, or device designated primarily for military service and intended for use in such service at the time of the occurrence or injury.  It may include such instrumentalities not designated primarily for military service if use of or occurrence involving such instrumentality subjects the individual to a hazard peculiar to military service.  A determination that a disability is the result of an instrumentality of war may be made if the disability was incurred in any period of service as a result of such diverse causes as wounds caused by a military weapon, accidents involving military combat vehicle, injury or sickness caused by fumes, gases, or explosion or military ordinance, vehicles, or material.

DISCUSSION AND CONCLUSIONS:

1.  The evidence of record does not support the applicant's contention he was injured while serving in the Gulf War.  Medical evidence of record shows he injured his back when he fell from a truck while loading weapons in September 1990 at Fort Rucker, AL.  He deployed to SWA the next day.   

2.  The reassignment/discharge orders provided by the applicant which show his disability resulted from a combat-related injury was noted.  However, the law states the term "combat-related injury" means personal injury or sickness which is incurred as a direct result of armed conflict, while engaged in extra hazardous service under conditions simulating war, or which is caused by an instrumentality of war.  In your case, it was determined your disability was caused by an instrumentality of war.  



3.  There is no evidence of record which shows the applicant was wounded or injured as a result of hostile action.  There are no orders for the Purple Heart in the available records.  Regrettably, there is insufficient evidence on which to base award of 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 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)                                         AR20100011152





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ABCMR Record of Proceedings (cont)                                         AR20100011152



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