IN THE CASE OF:	

		BOARD DATE:	  30 August 2012

		DOCKET NUMBER:  AR20120004914 


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 and its addition to his DD Form 214 (Certificate of Release or Discharge from Active Duty).

2.  The applicant states he should have been awarded the Purple Heart.  In effect, his separation orders and a letter from the National Personnel Records Center (NPRC) show he is entitled to the Purple Heart.

3.  The applicant provides copies of his separation orders and the NPRC letter.

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's military records show he enlisted in the Regular Army on 25 January 1989.  He completed training and was awarded military occupational specialty (MOS) 54B (Chemical Operations Specialist).  He served in Southwest Asia from 15 January through 24 April 1991.

3.  A DA Form 2173 (Statement of Medical Examination and Duty Status), dated June 1995, shows he was seen in the emergency room for hip pain.  The form stated he was participating in airborne operations on or about June 1995 at Fort Bragg, NC, when he had a collision in mid-air and got entangled with another Soldier causing the applicant to land on his right hip.  The injury was determined to be in the line of duty (LOD).

4.  Medical evaluation board (MEB) proceedings show he underwent a physical examination on 7 February 1996.  The report stated he sustained a mid-air entanglement that resulted in a hard landing on his right side in June 1995.  Initial pelvic and right thigh x-rays were performed in the emergency room and the patient was diagnosed with muscle strain.  Hip and back pain persisted.  He was sent to physical therapy and a hip effusion was noted.  X-rays in September showed a non-displaced stress fracture of the inferior ramus of the right public bone.  He was subsequently referred to Orthopedic Surgery and was seen on 28 November 1995.  He was given a P3 profile on 21 December 1995 and referred to a physical evaluation board (PEB).

5.  On 13 February 1996, an MEB referred him to a PEB.

6.  A letter of evaluation from his commander, dated 22 February 1996, stated he was injured during an airborne operation on 22 June 1995.  Since the injury, he was unable to participate in any company mission involving strenuous physical effort.  Through no fault of his own, he was unable to perform in his primary MOS in an airborne rifle company.  Due to his injuries, he had been relegated to a purely administrative role in the company.

7.  PEB Proceedings, dated 5 May 1996, show he sustained a right femoral neck stress fracture and chronic stress fracture of the right interior public ramus.  The PEB found him unfit, rated him at 10-percent disabled, and recommended his separation with severance pay.

8.  Orders 151-0297 issued by Headquarters, 82d Airborne Division, dated 30 May 1996, discharged him from active duty on 14 June 1996.  The orders stated his disability was based on an injury or disease received in the LOD as a direct result of armed conflict or caused by an instrumentality of war and incurred in the LOD during a war period as defined by law.  Disability resulted from a combat-related injury as defined in Title 26, U.S. Code, section 104.

9.  He was honorably discharged on 14 June 1996 for disability with severance pay.  His DD Form 214 shows he was awarded or authorized the:

* Meritorious Service Medal
* Army Commendation Medal (3rd Award)
* Army Achievement Medal (2nd Award)
* Valorous Unit Award
* Army Good Conduct Medal
* National Defense Service Medal
* Southwest Asia Service Medal with two bronze service stars
* Noncommissioned Officer Professional Development Ribbon
* Army Service Ribbon
* Overseas Service Ribbon
* Kuwait Liberation Medal (Saudi Arabia)
* Kuwait Liberation Medal (Kuwait)
* Parachutist Badge

10.  There are no orders or medical records in his service personnel records that show he was awarded the Purple Heart.

11.  He provides a copy of a letter from the NPRC, dated 30 September 2004, wherein he was advised of his entitlement to the Purple Heart.

12.  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 medical treatment, and the medical treatment must have been made a matter of official record.

13.  Army Regulation 600-8-22 also states that when contemplating an award of the Purple Heart, the key issue commanders must take into consideration is the degree to which the enemy caused the injury.

DISCUSSION AND CONCLUSIONS:

1.  The evidence of record shows the applicant sustained a stress fracture as the result of a mid-air entanglement with another Soldier while participating in airborne operations at Fort Bragg.  His injury was determined to be in the LOD and he was referred to a PEB.  The PEB found him unfit at 10-percent disabled and recommended his separation with severance pay.  He was honorably discharged accordingly on 14 June 1996.

2.  His claim of entitlement to the Purple Heart and the supporting evidence provided were carefully considered.  It is understandable that such documents would cause one to believe that his injury was combat related since it was determined to be in the LOD as noted in his separation orders.  However, there is no evidence of record and he provided insufficient evidence to show his injury was caused by enemy action.

3.  By regulation, in order to support award of the Purple Heart, there must be evidence confirming that an injury/wound for which the award is being made was received as a direct result of or was caused by enemy action, that the wound was treated by medical personnel, and a record of this treatment must have been made a matter of official record.

4.  Notwithstanding the NRPC letter, the evidence of record contains no orders or other documents confirming his award of the Purple Heart.  The evidence also does not show and he did not provide sufficient evidence to show he was ever recommended for or awarded the Purple Heart by proper authority.  The documentation he submitted is insufficient to form a basis for his entitlement to award of the Purple Heart and its addition to his DD Form 214.

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)                                         AR20120004914



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ABCMR Record of Proceedings (cont)                                         AR20120004914



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