IN THE CASE OF:	  

		BOARD DATE:	  14 June 2012

		DOCKET NUMBER:  AR20110022494 


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 through his Congressional representative.

2.  The applicant states, in effect, he should be awarded the Purple Heart for injuries he sustained during an enemy attack while serving in Afghanistan on 24 January 2008.  In addition to his physical injuries, he suffers from post-traumatic stress disorder (PTSD).

3.  The applicant provides:

* Combat Infantryman Badge Permanent Orders 103-034, dated 12 April 2008
* Army Board for Correction of Military Records memorandum, dated 2 June 2011
* DD Form 149 (Application for Correction of Military Record), dated 13 September 2011
* U.S. Army Human Resources Command (HRC) Awards and Decorations Branch (ADB) letter, dated 13 October 2011
* self-authored statement
* two DA Forms 2173 (Statement of Medical Examination and Duty Status)
* three DA Forms 2823 (Sworn Statement)



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 enlisted in the South Carolina Army National Guard on 18 April 1986.  He was awarded military occupational specialty 74C (Tactical Telecommunications Center Operator).  On 29 January 2007, he was ordered to active duty in support of Operation Enduring Freedom.

3.  His complete service medical records are not available for review; however, he provides the following documents in support of his application:

	a.  A DA Form 2173, dated 25 April 2008, which is to some extent illegible, shows in:

* item 11 (Medical Opinion) – "Occurred while on active duty during rocket attack"
* item 15 (Details of Accident or History of Disease) – "During rocket attack at [illegible] member dropped down on conex roof to take cover and landed on elbows"
* item 30 (Details of accident – Remarks) – "Soldier was pulling security on top conex when forward operating base (FOB) was rocketed.  Soldier went to prone position, landing on elbows causing injury"
* item 31 (Formal Line of Duty (LOD) Required) – "No"

	b.  A DA Form 2173, dated 28 June 2011, shows in:

* item 11 and item 15 – "During a combat deployment, this Soldier suffered PTSD-like symptoms from combat"
* item 30 – "[Applicant] is suffering PTSD-like symptoms from his combat encounters"
* item 31 – "yes" (a formal LOD was required, but documentation was not provided by the applicant or found in his record)

	c.  A DA Form 2823, dated 22 August 2010, shows Corporal R____ confirmed the events described by the applicant in his statement.  Further, he stated he witnessed the medic apply bandages to the applicant's right elbow and left knee.

	d.  A DA Form 2823, dated 22 August 2010, shows SPC B____, the medic, confirmed the events of the attack and he stated he observed the applicant on the top of a conex with a few cuts and scratches on his arms.  The applicant informed him that he "hurt his elbow and knee trying to take cover."  The medic stated he attended to the cuts and scratches, then wrapped the applicant's elbow and knee.

	e.  Permanent Orders 103-034 issued by the Combined Security Transition Command, Kabul, Afghanistan, awarded him the Combat Infantryman Badge.

	f.  A DA Form 2823, dated 22 August 2010, shows the applicant stated:

On 24 January 2008 at 1500 hours, the FOB I was located at (Silverback) came under enemy rocket attack.  During this attack the enemy fired a number of rockets at our FOB.  One of the rockets exploded 15 meters from my fighting position.  As the rocket was coming in, I dove for cover on top of the conex box I was on as my fighting position.  As I took cover I injured my right elbow and left knee.  When the rocket exploded, it sent dirt, rock, and shrapnel on top of me.  I had a few small scratches as well.  After the attack and the enemy left, I was checked out by the medic (SPC B____) at the FOB for the elbow and knee injuries as well as the small scratches I received during the attack.  SPC B____ cleaned the scratches [and] wrapped my elbow and knee.  I was at this location for a few more weeks.  Once I returned to our main FOB (Camp Stone) I went to the troop medical clinic (TMC) to have my elbow and knee checked out.  The medics there filled out an LOD on my elbow.  I was awarded the Combat Infantryman Badge as well for this attack.

	g.  Email correspondence written to his Congressman states he sustained shrapnel wounds and injuries to his elbow and knee in Afghanistan during a rocket attack in January 2008.  However, the medic at his TMC only listed his elbow injury on the LOD because his shrapnel wounds had healed by the time he returned to his unit.  He obtained witness statements from the medic who treated him after the attack and from one other Soldier, but his unit never recommended him for the Purple Heart.  He eventually recommended himself, but it was denied by the South Carolina Army National Guard.  He later submitted a request to this Board and was informed that he had not followed the proper chain of command (not exhausted his administrative remedies with HRC).

4.  On 18 October 2011, the HRC ADB informed him that his request for award of the Purple Heart was disapproved.  The ADB stated, in effect, accidental injuries not directly caused by enemy action do not warrant award of the Purple Heart.

5.  Army Regulation 600-8-22 states the Purple Heart is awarded for a wound sustained in action against an enemy or as a result of hostile action.  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.  Examples of enemy-related injuries which clearly justify award of the Purple Heart are:

* 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

6.  PTSD is specifically listed as an injury not justifying award of the Purple Heart in Title 32 of the Code of Federal Regulations.

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, the injury must have been sustained in action against an enemy or as a result of hostile action.  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.

3.  His witness statements clearly confirm he was injured in the LOD.  However, he stated in his account of events that he dove for cover on top of the connex as the rocket was coming in and injured his right elbow and left knee.  By his own admission, it appears that the manner in which he took cover caused the injury and not the enemy rocket.  The debris generated by the explosion caused superficial injuries that, although were cleaned and wrapped, did not require treatment.

4.  He received a subsequent LOD which showed he suffered from PTSD-like symptoms as a result of combat; however, this disorder is not a qualifying criterion for award of the Purple Heart.  By definition, PTSD is an anxiety disorder, not a wound.

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 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)                                         AR20110022494



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ABCMR Record of Proceedings (cont)                                         AR20110022494



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