IN THE CASE OF:
BOARD DATE: 29 September 2011
DOCKET NUMBER: AR20110005950
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 that he be awarded the Purple Heart.
2. The applicant states, in effect, while waiting to attend his monthly drill at his Texas Army National Guard (TXARNG) unit he was attacked by a man from Cuba and suffered substantial damage to his body. He goes on to state that he was placed on light duty, ordered to seek medical care, and return to his unit when his injuries were better. He goes on to state that he was discharged and he never wanted out. He continues by stating the Office of Risk Management has assessed that he is 36% disabled. His injury is being considered to be deemed in the line of duty and on government grounds; therefore, he should be awarded the Purple Heart.
3. The applicant provides copies of his separation documents and medical treatment documents.
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 applicants 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 applicants 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 TXARNG on 24 February 1995 for a period of 8 years and training as a personnel administration specialist. He was ordered to active duty for training (ADT) on 27 March 1995 and completed his one-station unit training at Fort Jackson, South Carolina. On 5 August 1995, he was released from ADT and transferred to his TXARNG unit.
3. The documents the applicant provided indicate he was injured on 17 May 1998 while working as an aide at Terrell State Mental Hospital when a patient attacked him, choked his neck, and threw him to the floor causing fractured ribs and a neck injury resulting in his being totally disabled.
4. On 10 July 1999, the applicant requested assignment to the inactive National Guard due to an incompatible occupation. His request was approved and he was transferred to the Inactive National Guard.
5. On 23 February 2001, he was honorably discharged from the TXARNG due to expiration of service obligation and transferred to the U.S. Army Reserve Control Group (Reinforcement).
6. 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 against an enemy of the United States, 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 applicants contentions have been noted and found to lack merit. The evidence provided by the applicant clearly shows he was injured while performing his civilian duties at a State Mental Hospital and not while on duty as a member of the TXARNG.
2. Additionally, while the applicants assailant may have been hostile, the requirements for award of the Purple Heart require that the injury be the result of action by an enemy of the United States.
3. While there is no doubt that the applicant was injured, there is no evidence to show he was injured while serving in his capacity as a member of the TXARNG, that his assailant was acting under the orders of an enemy of the United States, or that he meets any of the criteria for award of the Purple Heart. Accordingly, there appears to be no basis for awarding him the Purple Heart.
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.
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