IN THE CASE OF:	  

		BOARD DATE:	  19 May 2011

		DOCKET NUMBER:  AR20100026896 


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 sustained a line-of-duty (LOD), combat-related head injury due to a vehicle accident.  He subsequently underwent a C5 and C6 spinal fusion and he was medically retired.  In 2009, he was awarded disability ratings of 70 percent for a traumatic brain injury (TBI), 30 percent for post-traumatic stress disorder (PTSD), and 40 percent for spinal fusion as a result of the LOD incident.

3.  The applicant provides:

* his U.S. Uniformed Services Identification Card
* DA Form 199 (Physical Evaluation Board (PEB) Proceedings), dated 30 July 1997, and associated medical documents
* Medical Evaluation Board Narrative Summary, dated16 December 2004
* DA Form 2173 (Statement of Medical Examination and Duty Status), dated 31 January 2000
* 2nd Endorsement to DA Form 2173, dated 14 February 2000
* letter, VA, dated 20 May 2000
* VA Rating Decision, dated 9 December 2009
* letter, Department of Veterans Affairs (VA), dated 17 December 2009
* VA Rating Decision, dated 3 May 2010, and associated documents
* memorandum, Headquarters, 1st Brigade Combat Team, 10th Mountain Division (Light Infantry), dated 7 September 2010, subject:  Submittal of Evidence Supporting Post Purple Heart Claim for [Applicant]
* memorandum, U.S. Army Human Resources (USAHRC), dated 23 October 2010, subject:  Entitlement to Purple Heart Regarding [Applicant]
* USAHRC email correspondence, subject:  Purple Heart Submittal for [applicant]

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 records show he enlisted in the U.S. Army Reserve on 4 June 1977.  On 14 September 2000 he was commissioned as a second lieutenant and ordered to active duty for a period of 3 years.

3.  His DA Form 2173, dated 31 January 2000, shows:

* Date of Incident – 8 January 2000
* Place – Fort Irwin, CA
* Nature and Extent of Injury – Left thigh contusion
* Details of Accident – Patient involved in a military vehicle accident while on FTX
* Details of Accident (Remarks) – Soldier injured when his military vehicle struck another military vehicle during a rotation at the National Training Center (NTC)
* Formal LOD Investigation Required – No
* Injury is Considered to Have Been Incurred in LOD – Yes

4.  A PEB found him physically unfit on 4 February 2005 and recommended he receive a 30-percent disability rating.  Additionally, the PEB recommended that he be placed on the Temporary Disability Retired List (TDRL) with reexamination during July 2006.

5.  The PEB Proceedings indicated the applicant was injured in a vehicle accident involving a high-mobility multi-purpose wheeled vehicle and a tank "while deployed at the NTC on 8 January 2000 during a period of war" and that his disability did result from a combat-related injury.

6.  The applicant submitted his VA decision correspondence (compensation and disability ratings), various medical documents, USAHRC Awards and Decorations Branch correspondence, USAHRC legal review, and a statement of evidence supporting his post Purple Heart claim.  The applicant references the Purple Heart criteria listed in Army Regulation 600-8-22 (Military Awards) and argues his injury was caused when his unit engaged "the enemy" and pursued them through the desert during a rotation at the NTC.  Further, his injuries occurred during a "period of war" and the incident was classified as "combat related" in the "line of duty."

7.  Both the USAHRC Awards and Decorations Branch and Legal Office informed the applicant that he was not entitled to award of the Purple Heart.

8.  There is no indication in his records he was injured or wounded in combat.

9.  His service medical records are not available for review.

10.  On 31 March 2005, he was retired by reason of temporary disability and placed on the TDRL effective 1 April 2005.

11.  Army Regulation 600-8-22 provides that the Purple Heart is awarded for a wound sustained in action against an enemy or as a result of hostile action.  Substantiating evidence must be provided to verify 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.

DISCUSSION AND CONCLUSIONS:

1.  The Purple Heart differs from all other decorations in that an individual is not "recommended" for the decoration; rather he or she is entitled to it upon meeting specific criteria.  When contemplating an award of this decoration, the key issue that commanders must take into consideration is the degree to which the enemy caused the injury.

2.  The criteria for an award of the Purple Heart requires the submission of substantiating evidence to verify the injury/wound was the result of hostile action, the injury/wound must have required treatment by medical personnel, and the medical treatment must have been made a matter of official record.
3.  The applicant contends he should be awarded the Purple Heart because he suffered a combat-related injury during a period of war in which he was pursuing the enemy and the incident was subsequently determined to be in the LOD.  However, the evidence shows his injury occurred during a training exercise so his attempt to classify the participation by other U.S. Army Soldiers, contractors, or allied forces as the enemy or hostile action is creative, but without merit.  His injury resulted in a determination of unfitness, but the circumstances by which he incurred the injury do not satisfy the requirements for the award of the Purple Heart.

4.  In view of the above, his request should be denied.

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 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)                                         AR20100026896



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ABCMR Record of Proceedings (cont)                                         AR20100026896



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