IN THE CASE OF:	  

		BOARD DATE:	  13 December 2011

		DOCKET NUMBER:  AR20110012934 


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 (PH). 

2.  The applicant states his request for the PH was denied by the U.S. Army Human Resources Command (USAHRC) because he was injured in a vehicle accident in April 2010, as the driver tried to avoid a large crater caused by an IED (Improvised Explosive Device).  He is requesting the Board review his case and correct the error of the USAHRC determination that injuries received as a result of accidents incurred in a combat zone do not entitle individuals to an award of the PH.

3.  The applicant provides:

* Three third-party DA Forms 2823 (Sworn Statement)
* A DD Form 689 (Individual Sick Slip)
* His DD Form 214 (Certificate of Release or Discharge from Active Duty)
* Two USAHRC letters
* A DD Form 2173 (Statement of Medical Examination and Duty Status)
* A DD Form 1300 (Report of Casualty) and accompanying documents
* A Warrior Transition Battalion memorandum



CONSIDERATION OF EVIDENCE:

1.  The applicant’s record shows on 17 November 2009, while a member of the U.S. Army Reserve (USAR), he entered active duty in support of Operation Iraqi Freedom.   

2.  The applicant's record contains a DD Form 2173 that shows he was injured on 9 April 2010 while in a convoy in Iraq.  The details of the accident outlined in item 30 (Details of the Accident) of this form indicate the vehicle the applicant was in suddenly dropped into a ditch when the driver tried to avoid a large crater.  It further indicates the vehicle had minimal damage and the applicant was able to continue as Convoy Commander, but he was having some neck, head pain, and nausea.  Upon his return to the Forward Operating Base (FOB), he complained of neck, right shoulder, arm pain, finger numbness, and headaches.  He was instructed to seek medical attention and he was sent to the Kandahar Airfield.

3.  The applicant’s record is void of serious incident reports or other documents outlining the specific facts and circumstances surrounding the accident.  It is also void of any documentation indicating the applicant’s chain of command in Afghanistan recommended the applicant for the PH as a result of this incident.

4.  On 13 September 2010, the applicant was honorably released from active duty.  

5.  The applicant provides letters from the USAHRC Chief, Awards and Decorations Branch, dated 4 May and 14 June 2011, responding to Members of Congress who had inquired about the applicant’s desire to be awarded the PH.  These letter responses indicate a determination had been made that the applicant’s injuries were accidently incurred and as a result, he was not eligible to receive the PH.

6.  The applicant also provides three third-party statements that indicate the applicant was injured as a result of a vehicle accident that resulted from the driver of the vehicle trying to avoid a crater caused by an IED.  He also provides a DD Form 689 that shows he was treated for neck injuries he received as a result of the 9 April 2010 vehicle accident.  This document indicates the applicant’s injuries resulted from a vehicle accident that occurred when the driver of the vehicle he was in panicked when an IED went off and wrecked the vehicle off road.


7.  Army Regulation 600-8-22 (Military Awards) contains the Army’s awards policy.  Paragraph 2-8 contains guidance on award of the PH.  It states in order to support award of the PH there must be evidence that the wound/injury for which the award is being made was received as a result of enemy action; that it required treatment by military medical personnel; and a record of this treatment must have been made a matter of official record.  The regulation defines a wound as an injury to any part of the body from an outside force or agent.  It further stipulates when contemplating an award of the PH 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 sole justification for award of the Purple Heart.

8.  Paragraph 2-8h of the same regulation contains examples of injuries which clearly do not justify award of the PH.  Included in this list are accidents to include explosive, aircraft, vehicular, and other accidental wounding not related to or caused by enemy action.

DISCUSSION AND CONCLUSIONS:

1.  The applicant’s request for the PH has been carefully considered.  However, there is insufficient evidence to support granting the requested relief.  By regulation, in order to support award of the PH there must be evidence confirming the wound for which the award is being made was received as a result of enemy action.

2.  The evidence of record is void of incident reports or chain of command input confirming the convoy the applicant was travelling in at the time of the accident was engaged with the enemy, or that confirms an enemy-caused IED explosion occurred in the area close enough to cause the accident.

3.  Although the statements provided by the applicant seem to indicate the accident may have resulted from enemy action, absent any official record corroboration in the form of incident reports containing the facts and circumstances surrounding the incident or confirmation that the accident was the result of enemy action by the applicant’s chain of command in Afghanistan, the independent evidence submitted by the applicant is not sufficiently compelling to overcome the USAHRC determination that the applicant’s injuries were received as a result of an accident not caused by enemy action.  

4.  In view of the foregoing, the regulatory burden of proof necessary to support award of the PH has not been satisfied in this case and it would not be appropriate or serve the interest of all those who served in Afghanistan and who faced similar circumstances to award the applicant the PH at this time.

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)                                         AR20110012934



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ABCMR Record of Proceedings (cont)                                         AR20110012934



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