IN THE CASE OF:	  

		BOARD DATE:	  26 July 2011

		DOCKET NUMBER:  AR20110002500 


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 for injuries he received as a result of a motor vehicle accident (MVA) in Balad, Iraq, on 6 June 2003.

2.  The applicant states he sustained injuries as a direct result of an MVA caused when his driver swerved to avoid rocket-propelled grenade (RPG) fire from enemy combatants.  He received treatment for his injuries at the Balad Combat Support Hospital (CSH) and subsequently was awarded a Combat Action Badge for this specific incident.

3.  He contends the commanding general (CG) at the time his Purple Heart was submitted believed the injuries he sustained were due to negligence and even stated in an email that the applicant's injuries were caused by an MVA as a result of poor driving.  He agrees the injuries were caused by the MVA; however, the MVA resulted from the presence of enemy in the immediate area and a launch of an RPG that was observed by others on the ground and directed at his vehicle.  He believes that if not for the quick reaction of his driver, the award [Purple Heart] would have been presented, without hesitation, posthumously to his widow.  The MVA would not have occurred had it not been for the driver swerving for what he felt was an incoming enemy RPG round.  Further, this incident was documented in The Monitor, a Fort Bliss, Texas, newspaper on 12 June 2003.  Finally, he cites Army Regulation 600-200 (Military Awards), paragraph 2-8(b)(4)(d), dated 25 February 1995, which prescribes that injury caused by a vehicle or an aircraft accident resulting from enemy fire qualify for the award of the Purple Heart. 

4.  The applicant provides the following

* Combat Action Badge packet with three witness statements
* medical records relating to his injury
* Enlisted Record Brief (ERB), dated 24 October 2011
* a news article published in the Fort Bliss newspaper, The Monitor, dated 12 June 2003

CONSIDERATION OF EVIDENCE:

1.  The applicant is a sergeant first class serving on active duty and assigned to Fort Drum, New York.

2.  His records show he served in Iraq from 10 April 2003 to 9 April 2004.  During this tour he was assigned to the 978th Military Police Company, 2nd Brigade, 4th Infantry.

3.  The applicant provides the following:

	a.  Medical records which show on 6 June 2003 he received emergency medical treatment at the 3rd Battalion, 67th Armor Aid Station, for multiple shoulder and chest contusions and a knee abrasion sustained in an MVA when his vehicle swerved to avoid RPG fire.  He was treated and later evacuated to the 27th CSH for further evaluation.  There is no record of the treatment he received at the CSH; however, the applicant provides a summary of a surgical procedure he underwent at William Beaumont Army Medical Center, El Paso, Texas.  The physician's notes indicate the applicant's right shoulder pain was the result of an MVA which occurred in Iraq.

	b.  A news article, titled, "978th MPs injured.  Small arms fire, grenades strike water point."  The article provides an unofficial report, according to the applicant and one other Solder, of the enemy attack on a water pump station which occurred on 3 June 2003.  In the article, the applicant describes the attack that led to the MVA and stated, "A couple of the other vehicles said they saw a flash like something fired at us right before our crash."

	c.  Combat Action Badge recommendation with related documents which was approved on 27 June 2006.  The award recommendation contains a narrative and three eye witness statements.

		(1)  The narrative stated, "while en route members of [the applicant's] squad came under small arms and RPG attack.  The vehicle in front of [the applicant's] vehicle reported seeing a streak of light travel directly in front of the [the applicant's] vehicle's front hood.  [The applicant's] driver swerved to avoid the incoming fire."

		(2)  All three witness statements reported that the convoy came under small arms and RPG fire and described seeing a flash of light directly in front of the applicant's vehicle prior to the MVA.  One witness stated he saw, "a large flash from what appeared to be an RPG."  The witness goes on to say the driver swerved and made a necessary hard turn to avoid the RPG.  Another witness stated the RPG went straight in front of the vehicle and upon seeing the light the driver swerved to avoid incoming fire.  The driver provided the final witness statement and reported that he saw the flash of a RPG in front of his vehicle and swerved to get out of the way of any additional enemy fire.

	d.  Purple Heart recommendation and related documents, dated 30 August 2006.  These documents show his battalion and brigade commanders recommended approval of the Purple Heart; however, the CG, Headquarters, 10th Mountain Division (Light Infantry) and Fort Drum, recommended disapproval.  In an email correspondence the CG stated the applicant was injured due to poor driving and not by the RPG.  On 25 October 2007, the U.S. Army Human Resources Command (USAHRC) Awards Branch disapproved the applicant's request for the award of the Purple Heart stating commanders must take into consideration the degree to which the enemy caused the injury.  The medical documentation and sworn statements show he was treated for injuries due to a vehicle accident and not injuries caused by the enemy.

4.  Army Regulation 600-8-22 states the Purple Heart is awarded for a wound sustained while in action against an enemy or as a result of hostile action.

	a.  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.

		(1)  A wound is defined as an injury to any part of the body from an outside force or agent sustained by missile, force, explosion, or agent.  A physical lesion is not required.

		(2)  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.  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.

		(3)  Some examples of enemy-related injuries which justify award of the Purple Heart include injury caused by:

* enemy bullet, shrapnel, or other projectile created by enemy action
* enemy-placed mine or trap
* caused by enemy-released chemical, biological, or nuclear agent
* vehicle or aircraft accident resulting from enemy fire

   b.  It is not intended that such a strict interpretation of the 'requirement for the wound or injury to be caused by direct result of hostile action be taken that it would preclude the award being made to deserving personnel.  Commanders must also take into consideration the circumstances surrounding an injury, even if it appears to meet the criteria.  One example provided is in a case such as an individual injured while making a parachute landing from an aircraft that had been brought down by enemy fire or an individual injured as a result of a vehicle accident caused by enemy fire, the decision will be made in favor of the individual and the award will be made.

5.  The same regulation states the requirements for award of the Combat Action Badge are branch and MOS immaterial.  Assignment to a combat arms unit or a unit organized to conduct close or offensive combat operations or performing offensive combat operations is not required to qualify for the Combat Action Badge.  However, it is not intended to award the Combat Action Badge to all Soldiers who serve in a combat zone or imminent danger area.  The Soldier must be performing assigned duties in an area where hostile fire pay or imminent danger pay is authorized.  The Soldier must be personally present and actively engaging or being engaged by the enemy and performing satisfactorily in accordance with the prescribed rules of engagement.  The Soldier must not be assigned or attached to a unit that would qualify the Soldier for the Combat Infantryman Badge or the Combat Medical Badge.

DISCUSSION AND CONCLUSIONS:

1.  The applicant requests award of the Purple Heart for injuries he received as a result of an MVA in Balad, Iraq, on 6 June 2003.

2.  Available medical records show he sustained multiple shoulder and chest contusions and a knee abrasion as a result of an MVA accident caused when his driver swerved off the road to avoid RPG fire.  He was treated at the 3rd Battalion, 67th Armor Aid Station, and evacuated to the 27th CSH for further evaluation.

3.  Notwithstanding the disapproval of the Purple Heart by USAHRC Awards Branch, regulatory guidance provides for the award of the Purple Heart when injuries are a result of a motor vehicle accident resulting from enemy fire.  Based on the preponderance of evidence in this case it is reasonable to conclude that the applicant was injured as a result of hostile action.  Therefore, there is sufficient evidence upon which to base award of the Purple Heart in this case.

BOARD VOTE:

____X____  ____X____  ____X____  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

The Board determined the evidence presented is 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 awarding him the Purple Heart for wounds received in Balad, Iraq, on 3 June 2003.



      ___________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)                                         AR20110002500



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ABCMR Record of Proceedings (cont)                                         AR20110002500



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