IN THE CASE OF:	  

		BOARD DATE:	  13 October 2011

		DOCKET NUMBER:  AR20110006762 


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 was injured as a result of a mortar attack on 20 June 2005 in Balad, Iraq.  The high operations tempo led to the matter being overcome by other events.  He is a retired Soldier who suffers from service-related disabilities and he was recently determined Purple Heart eligible.

3.  He provides:

* correspondence written to his Member of Congress
* a letter from the Army Human Resources Command (AHRC) Awards and Decorations Branch (ADB)
* three pages from his service medical records
* a self-authored statement
* two DA Forms 2823 (Sworn Statement)
* a DA Form 2173 (Statement of Medical Examination and Duty Status)
* a DD Form 214 (Certificate of Release or Discharge from Active Duty)
* a DA Form 4187 (Personnel Action)
* deployment orders
* mobilization orders





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 previously served as an enlisted member of the U.S. Marine Corps (USMC), USMC Reserve, and U.S. Army Reserve (USAR) and as a commissioned officer in the USAR.  Effective 14 July 1992, he was appointed as a warrant officer in the Army National Guard (ARNG), and he served as an ARNG warrant officer until he was transferred to the Retired Reserve on 1 September 2007.  Effective 2 May 2009, he was placed on the U.S. Army Retired list in the rank of major/O-4.

3.  His record includes a DD Form 214 (Certificate of Release or Discharge from Active Duty) showing he served in Iraq from 27 October 2004 to 17 October 2005.  

4.  Permanent Orders 160-038, issued by the Office of the Adjutant General, State of South Carolina Military Department, Columbia, SC, dated 9 June 2006, showing he was awarded the Combat Action Badge for actively engaging or being engaged by the enemy on 20 June 2005.

5.  His complete service medical records are not available for review.  He provides three pages from his service medical records showing he sought medical treatment on 20 June 2005 for pain in his left elbow after a mortar attack.  The examining medic noted his elbow was tender to palpation and he had a minor abrasion to the outer layer of the skin.  The medic noted he had full mobility, but noted the possibility of a fracture.  He was told to return to the clinic the next morning and to take Motrin every 8 hours for pain.  

6.  On 21 June 2005, he was seen by a physician.  The examining physician found he had ecchymosis (the escape of blood into tissue from ruptured blood vessels) and minimal pain on rotation, flexion, or extension.  The physician prescribed rest, ice, wrapping the elbow, and ibuprofen.  On the same day, he underwent a radiological examination that showed swelling, dorsal, proximal ulna without an underlying fracture.

7.  He provides a self-authored statement showing on the evening of 20 June 2005 at [Logistics Support Area (LSA)] Anaconda, Iraq, he was sitting outside in his unit's housing area when several mortar rounds exploded in a nearby parking area approximately 100 meters from his location.  He was in the open and felt the concussion and debris blow by as well as smoke from the explosion.  His left elbow was hit by a rock or rocks thrown by the explosion.  He sought cover, and when the area was clear he asked Chief Warrant Officer 3 C------ W----- to take him to an aid station to have the injury examined.  A medic cleaned and dressed the broken skin and swelling.  The following day, the flight surgeon directed him to have x-rays at the local U.S. Air Force hospital.  An x-ray showed no broken bones.  

8.  He provides a DA Form 2823, dated 20 June 2005, showing Chief Warrant Officer 2 C------ W----- confirmed the events described by the applicant in his statement.  

9.  He provides a DA Form 2173 showing he incurred lacerations to his left elbow which were found to be in the line of duty.  The physician who examined him on 21 June 2005 signed the form on 30 August 2005.  The Adjutant General, South Carolina Army National Guard, approved the finding on 7 January 2006.  [The form shows it was approved on 7 January 2005, but it appears an error was made in the year.]

10.  On 19 March 2010, the AHRC ADB informed him his request for award of the Purple Heart was disapproved.  The ADB stated, in effect, the available documentation did not show he received an injury that required treatment by medical personnel.  

11.  In a letter to his Member of Congress, dated 25 May 2010, he stated he was treated for lacerations to his left elbow incurred during a mortar attack on 20 June 2005.  In his letter, he transcribed a portion of the Purple Heart criteria published in Army Regulation 600-8-22 (Military Awards) and indicated his injury could be associated with two examples of enemy -related injuries justifying award of the Purple Heart listed in the regulation:

* injury was caused by enemy bullet, shrapnel, or other projectile created by enemy action
* concussion injuries caused as a result of enemy generated explosions

12.  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.  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.  Examples of enemy-related injuries which clearly justify award of the Purple Heart are an:

* injury caused by enemy bullet, shrapnel, or other projectile created by enemy action
* injury caused by enemy placed mine or trap
* injury caused by enemy released chemical, biological, or nuclear agent
* injury caused by vehicle or aircraft accident resulting from enemy fire
* concussion injuries caused as a result of enemy generated explosions

DISCUSSION AND CONCLUSIONS:

1.  The available documentation does not support the applicant's request for award of the Purple Heart.

2.  To meet the criteria for award of the Purple Heart, an injury caused by hostile action must have been severe enough to require treatment by medical personnel.  Seeking treatment should not be confused with requiring treatment.  In this case, after seeking treatment, the applicant was referred for an x-ray to determine if he had incurred a fracture.  The x-ray was negative.  

3.  The term "concussion injuries" in Army Regulation 600-8-22 refers to head injuries resulting from enemy-generated explosions.  The record does not show he received a head injury.

4.  The available documentation shows that, after being struck in the elbow by an object during a hostile mortar attack, the applicant made the appropriate decision to be examined by medical personnel.  Examination did not, however, reveal that any conditions requiring medical treatment had resulted from his exposure to mortar explosions.  While medical personnel cleaned and dressed his elbow, this is a basic first aid measure that all Army personnel are trained to perform.  In other words, having an injury cleaned and dressed, while necessary to prevent an infection does not mean the injury required treatment by medical personnel.

5.  In view of the foregoing, there is an insufficient basis upon which to award 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.

ABCMR Record of Proceedings (cont)                                         AR20110006762



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ABCMR Record of Proceedings (cont)                                         AR20110006762



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