IN THE CASE OF:	   

		BOARD DATE:	  10 July 2012

		DOCKET NUMBER:  AR20120000566 


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 to be awarded the Purple Heart and any other awards he may be authorized.

2.  The applicant states he and others were injured on 13 July 2004 as a result of enemy attacks.  He contends that only one Soldier was awarded the Purple Heart because they were not properly evaluated.  He believes the requirements for award of the Purple Heart were met but not properly applied.

3.  The applicant provides:

* two DA Forms 2823 (Sworn Statement)
* medical documents listing injuries, treatment, and disposition
* DA Form 1156 (Casualty Feeder Report), dated 13 July 2004
* Diagram of Indirect Fire Impacts, dated 13 July 2005
* DD Form 214 effective 11 August 2005
* memorandum for record, Company B, 1st Battalion, 34th Armor Regiment, dated 26 October 2005, subject:  Combat Action Badge Narrative for Action on 13 July 2004
* memorandum for record, Company B, 1st Battalion, 34th Armor Regiment, dated 26 October 2005, subject:  Purple Heart Narrative for Action on 13 July 2004
* letter, U.S. Army Human Resources Command (HRC) Awards and Decorations Branch (ADB), dated 8 December 2011



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 Regular Army on 12 August 2002.  He completed training and was awarded military occupational specialty 92Y (Unit Supply Specialist).

3.  On 11 August 2005, he was honorably released from active duty in the rank/grade of specialist/E-4 and transferred to the U.S. Army Reserve Control Group (Reinforcement).  His DD Form 214 shows he completed 3 years of net active service during this period, including 1 year of foreign service.

	a.  His DD Form 214 indicates he was awarded the:

* Army Lapel Button
* Army Commendation Medal
* National Defense Service Medal
* Global War on Terrorism Service Medal
* Global War on Terrorism Expeditionary Medal
* Army Service Ribbon

	b.  His DD Form 214 indicates he deployed to Kuwait and Iraq from 9 September 2003 through 18 September 2004 in support of Operation Iraqi Freedom.

4.  His medical records were not available for review in this case; however, he provides:

	a.  a diagram of the impact area and a casualty feeder report which shows he was lightly wounded or injured in action at 0630 hours on 13 July 2004 and he sustained a laceration to his left arm;

	b.  medical records which show he sustained superficial abrasions to his arm which were cleaned and bandaged by the 1st Battalion, 34th Armor Regiment Aid Station, Camp Manhattan; and

	c.  two memoranda for record issued by Company B, 1st Battalion, 34th Armor Regiment, Fort Riley, KS, dated 26 October 2005:

		(1)  One is a narrative for the Combat Action Badge and the other is a narrative for the Purple Heart.  Although the narrative and list of Soldiers is the same on both memoranda, only one Soldier was identified for award of the Purple Heart.

		(2)  In summary, both memoranda state that insurgents attacked the forward operating base (FOB) with indirect fire, improvised explosive devices, and rocket-propelled grenades on 13 July 2004.  As a result of the insurgent action, rockets and mortars impacted on the FOB in the vicinity of the battalion tactical operations center, the combat trains command post (CTCP), the field artillery barracks, and the strategic psychological operations frequency modulation radio and billeting building.  A rocket made a direct impact on an 
M-998 parked beside the CTCP causing a significant explosion and a subsequent fire.  Four Soldiers inside the CTCP were wounded as a result of the rocket impact.  In addition, a mortar round landed within 20 feet of the barracks located adjacent to the CTCP and another rocket landed approximately 75 meters south of the CTCP.  As a result of this enemy action, no less than six Soldiers were wounded and several were exposed to enemy fires.  The applicant's name is shown as having sustained minor injuries;

	d.  a DA Form 2823, dated 26 October 2005, in which Captain D____ confirms the events described in the narratives discussed above; and

	e.  a second DA Form 2823, dated 22 December 2005, in which Staff Sergeant L____ further confirms the events described in the narratives and includes a list of Soldiers who were within 30 meters or less of the rocket/mortar impact area.  The applicant's name is listed and noted that he sustained minor injuries.

5.  On 8 December 2011, HRC ADB informed him his request for award of the Purple Heart was disapproved.  The ADB stated the available documentation shows he sustained a superficial laceration to his left arm which did not meet the criteria for award of the Purple Heart.

6.  During the processing of this case the analyst reviewed the official military personnel file (OMPF) of three Soldiers recommended for the Combat Action Badge which included the applicant's name.  It was determined that all three individuals were awarded the Combat Action Badge for the period 13 July 2004 by permanent orders issued by Headquarters, 24th Infantry Division (Mechanized) and Fort Riley, Fort Riley, KS.  All orders were published in 2006, which was after the applicant was released from active duty.

7.  Army Regulation 600-8-22 (Military Awards) 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

8.  Accidental injuries, injuries resulting from their own negligence, post traumatic stress disorders, and self inflected wounds are examples of injuries which do not justify the award of the Purple Heart.

9.  Army Regulation 600-8-22 states the Army Good Conduct Medal is awarded to individuals who distinguish themselves by their conduct, efficiency, and fidelity during a qualifying period of active duty enlisted service.  This period is 3 years except in those cases when the period for the first award ends with the termination of a period of Federal military service.  Although there is no automatic entitlement to the Army Good Conduct Medal, disqualification must be justified.

10.  Army Regulation 600-8-22 states the requirements for award of the Combat Action Badge are branch and MOS immaterial.  Assignment to a combat arms unit or a unit organized to conduct close or offensive combat operations or performing offensive combat operations is not required to qualify for the Combat Action Badge.  However, it is not intended to award the Combat Action Badge to all Soldiers who serve in a combat zone or imminent danger area.  The Soldier must be performing assigned duties in an area where hostile fire pay or imminent danger pay is authorized.  The Soldier must be personally present and actively engaging or being engaged by the enemy and performing satisfactorily in accordance with the prescribed rules of engagement.  The Soldier must not be assigned or attached to a unit that would qualify the Soldier for the Combat Infantryman Badge or the Combat Medical Badge.  Award of the Combat Action Badge is authorized from 18 September 2001 to a date to be determined.  Award for qualifying service in any previous conflict is not authorized.

DISCUSSION AND CONCLUSIONS:

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

2.  The fact that the applicant was involved in enemy action and received minor wounds is not in question; however, the available evidence does not clearly show how he sustained his injuries, nor does the applicant indicate how his injuries occurred.  Witness statements and award narratives provided by the applicant are also vague on this point and only state he was in the impact area (within 30 meters or less) of the rocket and mortar fires but these documents fail to expound on the origin of his injuries.  Commanders on the ground must consider the circumstances surrounding an injury as not all injuries meet the criteria for award of the Purple Heart.  Lacking evidence to contrary, there is insufficient evidence to award the Purple Heart.

3.  The evidence shows the applicant and others involved in the incident were recommended for award of the Combat Action Badge.  A review of the OMPF of three Soldiers listed on the Combat Action Badge narrative found that these individuals were awarded the Combat Action Badge for the period 13 July 2004 after the applicant was released from active duty.  The applicant should not be penalized for the apparent delay in the processing of his award; therefore, it would be appropriate to award him the Combat Action Badge and add this award to his DD Form 214.

4.  There is no evidence in his record to indicate he was disqualified by his chain of command from receiving the Army Good Conduct Medal.  His records contain no evidence of court-martial action, nonjudicial punishment, or lost time.  In the absence of evidence showing disqualification for award of the Army Good Conduct Medal, it would be appropriate to award him the Army Good Conduct Medal (1st Award) based on completion of qualifying service from 12 August 2002 through 11 August 2005 and to add it to his DD Form 214.



BOARD VOTE:

__X_____  ___X____  ____X___  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

1.  Notwithstanding the staff DISCUSSION AND CONCLUSIONS above, the Board believed that the evidence shows the applicant met the eligibility criteria for award of the Purple Heart; i.e., that he was wounded as a result of hostile action and he was treated for those wounds.  

2.  As a result, the Board determined that the evidence presented was sufficient to warrant a recommendation for relief.  As a result, the Board recommends that all Department of the Army records of the individual concerned be corrected by:

* awarding him the:

* Purple Heart for wounds received on 13 July 2004
* Army Good Conduct Medal (1st Award) for the period 12 August 2002 through 11 August 2005
* Combat Action Badge effective 13 July 2004

* adding the Purple Heart, Army Good Conduct Medal (1st Award), and Combat Action Badge to his DD Form 214



      _______ _  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)                                         AR20120000566



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ABCMR Record of Proceedings (cont)                                         AR20120000566



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