IN THE CASE OF:	  

		BOARD DATE:	  4 October 2011

		DOCKET NUMBER:  AR20110002368 


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 his previous request for award of the Purple Heart.

2.  The applicant states the following:

	a.  The Board's denial letter contains quite a number of inconsistencies and outright false information.

	b.  There is no medical documentation between 7 December 2003 and 
31 January 2005 relating to treatment for wounds or injuries as a result of hostile action because he was not treated until August 2004 when he re-injured his shoulder while attempting to work out.  That does not mitigate the fact that he was initially injured in March 2004.

	c.  It was his first feeble attempt to use the arm and shoulder since he was injured in March 2004.  When he complained of shoulder pain on 1 August 2004, it was because he pulled or pinched a nerve in his shoulder trying to work out but the initial injury was in March 2004 during the rocket attack in Baghdad.  He cannot use his right arm to the full extent to this day and still has the large "L" shaped mark left by the corner of the locker he landed against.

	d.  He has read and re-read the requirements for the Purple Heart and no where he can find the words immediate treatment or immediately.  He was injured on 2 March 2004 at around 0300 hours and did not return to his unit 
50 miles away until the middle of March.  He did not get immediate treatment on 2 March 2004 but "immediate" has nothing to do with it.  The treatment was a matter of official military records.

	e.  He sought Congressional assistance because the Army Human Resources Command (AHRC) kept interjecting words and conditions not stated in the regulation such as "immediate treatment" and he could begin to sense the old proverbial "run around" treatment.

	f.  He will be glad to explain why he was not awarded the Purple Heart at the time of his injury.  He had no idea at the time that such an injury entitled a Soldier to a Purple Heart and it was not until he was undergoing a retirement physical in May 2009 that he was told that he should have been awarded the Purple Heart in 2004.  He was not looking for medals.  All that was on his mind was self-preservation, performing his duties, and getting out of Iraq alive.

	g.  It is not reasonable to presume anything in a matter of such importance to an individual who spent 42 years, 6 months, and 18 days in the U.S. Army as he did.  He has attempted to rebut and explain the inaccuracies in the Board's letter of denial and would have never thought of this had he not been advised to pursue it by the medical personnel conducting his retirement physical in May 2009.

3.  The applicant provides no additional evidence.

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 AR20100014340, on 14 December 2010.  

2.  In the previous Record of Proceedings (ROP) it was erroneously stated the applicant was a member of the South Carolina Army National Guard.  The ROP should have stated that he was a member of the Mississippi Army National Guard (MSARNG).  Also, in the previous ROP, it was not stated that he re-entered active duty on 1 February 2005.

3.  In the previous ROP it was noted that:

	a.  he was serving in the rank of chief warrant officer four (CW4) when ordered to active in support of Operation Iraqi Freedom effective 7 December 2003 and was released from active duty on 31 January 2005.
	b.  his Official Military Personnel File (OMPF) did not contain medical documentation dated between 7 December 2003 (date ordered to active duty) and 31 January 2005 (date released for active duty) showing he was treated for injuries sustained as a result of hostile action;

	c.  he visited a doctor and complained of shoulder pain on 1 August 2004 and on 4 August 2004, during a follow-up visit, complained of chronic shoulder pain and stated he pulled or pinched his shoulder while working out;

	d.  he was awarded the Combat Action Badge for actions on 2 March 2004;

	e.  a DA Form 2173 (Statement of Medical Examination and Duty Status), dated 15 May 2009, showed he sustained right shoulder and right knee injuries, tinnitus, increased hearing loss, and a bloody nose as a result of being blown from his bed during a rocket attack on 2 March 2004, while in Baghdad, Iraq.  His injuries were determined to have been incurred in line of duty.

	f.  he was placed on the retired list on 18 May 2009;

	g.  the AHRC returned his request for the Purple Heart without action on      19 January 2010 due to lack of required supporting documentation; and

	h.  he provided through his Representative in Congress a buddy statement authored by an individual who contended he had first-hand knowledge of the incident to which the applicant referred and that he was present at the time the applicant was injured on 2 March 2004.

4.  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.  

5.  Army Regulation 600-8-4 (Line of Duty Policy, Procedures, and Investigations), paragraph 2–3 (Requirements for Line of Duty Investigations) states line of duty investigations are conducted essentially to arrive at a determination of whether misconduct or negligence was involved in the disease, injury, or death and, if so, to what degree.  Depending on the circumstances of 
the case, a line of duty investigation may or may not be required to make this 

determination.  The line of duty determination is presumed to be "line of duty YES" without an investigation in the case of injuries clearly incurred as a result of enemy action or attack by terrorists.

DISCUSSION AND CONCLUSIONS:

1.  The applicant's request for reconsideration of his previous request for award of the Purple Heart has been carefully considered.  

2.  The line of duty investigation indicates he injured his shoulder while in Iraq; however, there is no service medical evidence that conclusively shows the injury was incurred as a result of hostile action.  

3.  He states that his request for the Purple Heart was denied because he did not seek immediate medical assistance.  However, the issue in this case is not whether he sought immediate medical care for his injuries; but rather, that his delay in obtaining medical treatment makes it impossible to determine that his subsequent injury was connected to the injury he sustained as a result of enemy action.  

4.  The applicant admitted he pulled or pinched his shoulder while working out.  There is no evidence which provides a nexus between the March 2004 incident and the medical treatment he received in August 2004.  Without proof that the medical treatment he received was for an injury/wound sustained as a result of enemy action, the Purple Heart is not authorized.

5.  Based on the foregoing, there is insufficient evidence in this case to grant the requested relief.

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 to amend the decision of the ABCMR set forth in Docket Number AR20100014340, dated 14 December 2010.




      __________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)                                         AR20110002368



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ABCMR Record of Proceedings (cont)                                         AR20110002368



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