IN THE CASE OF:	  

		BOARD DATE:	  5 January 2012

		DOCKET NUMBER:  AR20110013237 


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 award of the PH was denied by the Military Awards Branch (MAB), U.S. Army Human Resources Command (HRC), due to negligence on his part.  He states while removing hearing protection should be considered negligence under normal circumstances, there were extraordinary circumstances surrounding this event.  He states that during the firefight he was responsible for monitoring and communicating via multiple radio frequencies and he monitored these under the direction of his commander.  He claims he was also engaging enemy positions with vehicle mounted .50 caliber machine gun and his personal assault rifle.  He claims he only removed his hearing protection for a brief period to communicate his need for more ammunition during partial cessation of gunfire when the main gun of the tank was fired next to him, resulting in his injury.  

3.  The applicant provides a DA Form 2823 (Sworn Statement) from his commander in Iraq and the original PH request packet and HRC denial in support of his application.  

CONSIDERATION OF EVIDENCE:

1.  The applicant’s record shows he enlisted in the Regular Army on 2 April 2004, and was trained in and awarded military occupational specialty (MOS) 11B (Infantryman).  He was promoted to sergeant/E-5 on 1 March 2007, and this was the highest rank he attained while serving on active duty.  
2.  The record further shows the applicant served in Iraq from 19 June 2006 through 2 September 2007.  The record is void of any indication that the applicant was reported as a combat casualty or treated for a combat-related wound while serving in Iraq.  

3.  On 20 December 2007, the applicant was honorably released from active duty, in the rank of SGT/E-5, after completing 3 years, 8 months, and 19 days of active military service.  The DD Form 214 (Certificate of Release or Discharge) he was issued at the time shows he earned the following awards:

* Army Commendation Medal 
* Army Achievement Medal
* Army Good Conduct Medal
* National Defense Service Medal
* Global War on Terrorism Service Medal 
* Iraq Campaign Medal
* Army Service Ribbon
* Overseas Service Ribbon
* Combat Infantryman Badge


4.  On 13 February 2008, the applicant was examined by at a Department of Veterans Affairs (VA) treatment facility.  This examination resulted in a diagnosis of a small posterior, marginal perforation of the right tympanic membrane.  The examining physician indicated it was at least as likely as not that the perforation of the right tympanic membrane could have occurred as a result of the tank firing incident of 23 February 2007.  

5.  On 5 May 2008, the applicant’s former commander in Iraq completed a DA Form 4187 recommending the applicant be awarded the PH.  He indicated that during an engagement in Iraq on 23 February 2007, the applicant had to remove his hearing protection to communicate when the main tank gun fired.  He claims the applicant had a small amount of bleeding from his right ear.  He further indicates the extent of the applicant’s injury was not known at the time and no PH recommendation was submitted.  He further states that subsequent to the applicant’s release from active duty, he was diagnosed with a perforation of his right tympanic membrane.  



6.  On 3 March 2009, the HRC Chief, Awards and Decorations Branch denied the applicant’s request for the PH.  He stated that according to the supporting documents during a firefight on 23 February 2007, the applicant removed his hearing protection in order to communicate his need for ammunition, at which time the tank next to his position fired causing him to be dazed.  In January 2008, a year later, the applicant was diagnosed with a right eardrum perforation.  This official further indicated because the applicant’s injury was caused as a direct result of his removing his hearing protection it does not meet the criteria for award of the PH. 

7.  Army Regulation 600-8-22 (Military Awards) provides 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 the member was wounded as a result of enemy action; that the wound required treatment by military medical personnel; and a record of the medical treatment must have been made a matter of official record.  The regulation states an individual injured as a result of their own negligence will not be awarded the PH.  It also provides for award of the Purple Heart to individuals wounded or killed as a result of “friendly fire” in the “heat of battle” as long as the “friendly” projectile or agent was released with the full intent of inflicting damage or destroying enemy troops or equipment.

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.  

2.  Given the circumstances surrounding the incident in question, this Board would not support denial based on negligence alone and would not concur with the HRC denial if it were solely based on this factor.  However, the evidence of record and independent evidence provided by the applicant still fails to meet the regulatory criteria necessary to support award of the PH.  

3.  By regulation, in order to support award of the PH there must not only be evidence that the member was wounded as a result of enemy action, there must also be evidence that wound for which the award is being made required treatment by military medical personnel and a record of that treatment must have been made a matter of official record.  

4.  The evidence of record and independent evidence provided by the applicant fails to show the applicant was treated for the wound in question by military medical personnel at the time it occurred or that the wound was caused by enemy action.  The first medical treatment record related to the injury is the VA examination more than a year later.  
5.  Absent evidence confirming the wound in question required treatment by military medical personnel at the time it occurred, the regulatory burden of proof has not been satisfied in this case.  Further, the noise of the tank being fired was not intended to destroy the enemy; therefore, award of the Purple Heart based upon a friendly fire incident would not be appropriate, either.  Therefore, it would not be appropriate or serve the interest of all those who served in Iraq and faced similar circumstances to support award of the PH. 

6.  The applicant and all others concerned should know that this action related to award of the PH in no way diminishes the sacrifices made by the applicant in service to our Nation.  The applicant and all Americans should be justifiably proud of his service in arms.  

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)                                         AR20110013237



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ABCMR Record of Proceedings (cont)                                         AR20110013237



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