IN THE CASE OF:	  

		BOARD DATE:	  21 July 2011

		DOCKET NUMBER:  AR20100028216 


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 the Chief, Military Awards Branch, U.S. Army Human Resources Command (USA HRC), denied his request for award of the Purple Heart.  He states he has gathered additional documentation that supports favorable consideration of his appeal of the denial of the award by USA HRC.

3.  The applicant provides a casualty feeder report, memorandum, medical records, and photographs.

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 enlisted in the Regular Army on 23 August 2001.  He was awarded military occupational specialty 11C (Indirect Fire Infantryman).

3.  The applicant was assigned to Company C, 1st Battalion, 24th Infantry, and he deployed overseas to Kuwait/Iraq on 10 October 2004.

4.  The applicant's DD Form 214 (Certificate of Release or Discharge from Active Duty) shows he was honorably released from active duty on 31 December 2005 and transferred to the U.S. Army Reserve Control Group (Reinforcement) to complete his Reserve obligation.  He completed 4 years, 4 months, and 8 days of net active service.

	a.  Item 13 (Decorations, Medals, Badges, Citations and Campaign Ribbons Awarded or Authorized) shows the Army Commendation Medal (3rd Award), Army Achievement Medal (3rd Award), Army Good Conduct Medal, National Defense Service Medal, Army Service Ribbon, Combat Infantryman Badge, Global War on Terrorism Service Medal, and Iraq Campaign Medal.

   b.  Item 18 (Remarks) shows he served in Kuwait/Iraq in support of Operation Enduring/Iraqi Freedom from 10 October 2004 to 26 September 2005 and the entry "Soldier Authorized Overseas Service Bar (2d Award)" (i.e., two Overseas Service Bars).

5.  In support of his application, the applicant provides the following documents:

   a.  A DA Form 1156 (Casualty Feeder Report) that shows the applicant was lightly wounded or injured in hostile action at 2015 hours, 7 December 2004, in Mosul, Iraq, and that he was evacuated to the Battalion Aid Station (BAS),
1st Battalion, 24th Infantry.

       (1)  Item 8 (Witnesses Who Saw Incident or Identified Remains) lists Sergeant David P----, Company C, 1st Battalion, 24th Infantry.

       (2)  The form was authenticated by Major David L. B----, Medical Corps on 7 December 2004.

   b.  A DD Form 1380 (U.S. Field Medical Card) that shows the applicant sustained bruising with edema [swelling of soft tissues as a result of excess water accumulation] of his right hip as a result of a blast injury, there was no bleeding, and he had full range of motion.

       (1)  Item 10 (Disposition) shows the applicant was returned to duty.

       (2)  Item 11 (Provider - Unit Officer - Medical Officer) was authenticated at 0950 hours [sic], 7 December 2004.

   c.  A Standard Form (SF) 600 (Chronological Record of Medical Care), initiated at 2050 hours, 7 December 2004, that shows the applicant reported he injured his right upper thigh due to an improvised explosive device (IED) blowing up by his Stryker vehicle.  He injured his thigh by hitting the vehicle commander's seat and also hit the vehicle's hatch with his head.  He denied any major head pain.

       (1)  The attending physician noted a large contusion to the applicant's right lateral thigh with no bleeding.

       (2)  He prescribed an ice pack and ace wrap to lessen the swelling, and Tylenol for pain, as needed.
   
   d.   Battalion Aid Station, 1st Battalion, 24th Infantry Regiment, Mosul, Iraq, memorandum for record (MFR), dated 7 December 2004, subject:  Battle injuries sustained by [applicant], issued by Major David L. B----, Battalion Surgeon.

       (1)  It shows, "[the applicant] sustained a deep contusion to his right thigh.  He was launched upward from his hatch position when his vehicle was hit by a concealed IED.  He struck his thigh when he subsequently fell back through the hatch.  The injury occurred as a result of enemy action while on a combat operation in Mosul, Iraq on [7 December 2004]."

       (2)  Major B---- confirmed he provided initial treatment to the applicant at the BAS and that the applicant was then returned to limited duty.

       (3)   He also noted that the MFR, DD Form 1380, and DA Form 1156 would be sent to the S-1 (Adjutant) for processing.

   e.  Four SFs 600, dated 13 & 14 December 2004 and 13 February 2005, that show the applicant was seen for follow-up treatment and complained of swelling and pain on his right side hip, headache, dizziness every now and then, and difficulty supporting the weight on his right side.  The medical official noted discoloration and that the skin was warm to the touch.

   f.  Nine photographs with captions describing damage to the inside of the Stryker vehicle in which the applicant was injured.


   g.  USA HRC, Alexandria, VA, memorandum, dated 24 July 2007, that shows the Chief, Military Awards Branch, informed the applicant, "[w]e have reviewed the documentation provided with your request [for award of the Purple Heart] and did not find any evidence indicating that your injury meets the strict criteria for the award."  The applicant was advised that he could appeal the decision to the ABCMR.

6.  In the processing of this case, several attempts were made to obtain a copy of the applicant's award case file from the Military Awards Branch, USA HRC, VA, in order to review the documentation he previously submitted in support of his request.  However, efforts to obtain the documentation were unsuccessful.

7.  A review of the applicant's military personnel records reveals that he may be authorized an additional award that is not shown on his DD Form 214.

8.  Headquarters, 1st Battalion, 24th Infantry Regiment, 1st Brigade (Stryker Brigade Combat Team), 25th Infantry Division (Light), Fort Lewis, WA, Permanent Order 311-004, dated 7 November 2005, awarded the applicant the Driver and Mechanic Badge with "W" (Wheeled Vehicle) Bar for the period of service from 16 September 2004 to 15 September 2005.

9.  Army Regulation 600-8-22 (Military Awards) provides policy, criteria, and administrative instructions concerning military awards and decorations.

	a.  The Iraq Campaign Medal is authorized for award to members of the Armed Forces of the United States who served in direct support of Operation Iraqi Freedom.  A bronze service star is authorized for wear with the Iraq Campaign Medal for participation in each credited campaign.  During the applicant's overseas tour in Iraq from 10 October 2004 to 26 September 2005, participation credit was awarded for the Iraqi Governance (29 June 2004 -15 December 2005) campaign.

   b.  The Purple Heart is awarded for a wound sustained while in action against an enemy or as a result of hostile action.  The fact that the proposed recipient was participating in direct or indirect combat operations is a necessary prerequisite, but is not the sole justification for award.  Substantiating evidence must be provided  to verify that the wound was the result of hostile action.

       (1)  A wound is defined as an injury to any part of the body from an outside force or agent.  A physical lesion is not required; however, the wound for which the award is made must have required treatment by medical personnel and the medical treatment must have been made a matter of official record.

       (2)  The regulation provides examples of enemy-related injuries which clearly justify award of the Purple Heart that, in pertinent part, includes injuries caused by enemy placed mines or traps and concussion injuries caused as a result of enemy generated explosions.

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends that his records should be corrected to show award of the Purple Heart because he was injured while serving in Iraq and he now provides additional documentation that was not considered by the Chief, Military Awards Branch, USA HRC.

2.  The evidence of record shows the applicant was injured as a result of hostile action at 2015 hours, 7 December 2004, in Mosul, Iraq, when an IED exploded and damaged the Stryker vehicle that he was riding in.  The evidence of record also shows the applicant was injured, treated for his injury, and the medical treatment was made a matter of official record.

   a.  It is not clear why the applicant was not awarded the Purple Heart by his command in Iraq at the time of the incident.

   b.  Efforts to obtain a copy of the applicant's award case file from the Military Awards Branch were unsuccessful.  Thus, the applicant's contention that he has provided additional evidence is not disputed.  Consequently, it is reasonable to conclude that the Military Awards Branch did not have the benefit of the entirety of the evidence that the applicant now submits to this Board.

   c.  Therefore, based on the evidence of record in this case and in view of the foregoing, it would be appropriate to correct the applicant's records to show award of the Purple Heart.

3.  The applicant qualified for award of the Iraq Campaign Medal and he served in one campaign during his service in support of Operation Iraqi Freedom.  Thus, he is entitled to one bronze service star for wear on his already-awarded Iraq Campaign Medal.

4.  Permanent orders awarded the applicant the Driver and Mechanic Badge with "W" Bar.  Therefore, it would be appropriate to add the badge to his
DD Form 214.


BOARD VOTE:

____X___  ____X___  ____X___  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

The Board determined that the evidence presented was sufficient to warrant a recommendation for relief.  As a result, the Board recommends that all Department of the Army records of the individual concerned be corrected by:

	a.  awarding the applicant the Purple Heart for wounds received in action on
7 December 2004 in Mosul, Iraq;

   b.  deleting from item 13 of his DD Form 214 the Iraq Campaign Medal; and

   c.  adding to item 13 of his DD Form 214 the Purple Heart, Iraq Campaign Medal with one bronze service star, and Driver and Mechanic Badge with "W" Bar.




      _______ _   __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)                                         AR20100028216



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ABCMR Record of Proceedings (cont)                                         AR20100028216



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