BOARD DATE:	  15 January 2013

		DOCKET NUMBER:  AR20120012276 


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, in effect, award of the Purple Heart.

2.  The applicant states he was injured during an incident involving friendly fire.  At the time of his injury he was told the Purple Heart is not awarded for injuries occurring as a result of friendly fire.  Instead he was awarded the Army Commendation Medal with "V" Device.  His injury required surgery and he received a service-connected disability.

3.  The applicant provides:

* DA Form 638 (Recommendation for Award of the Meritorious Service Medal and Below) showing award of the Army Commendation Medal with "V" Device
* Memorandum, dated 30 March 1993
* Message from the U.S. Army Personnel Command (PERSCOM), currently known as the U.S. Army Human Resources Command (AHRC), dated 
17 May 1993
* DD Form 214 (Certificate of Release of Discharge from Active Duty)
* Letter, Vocational Rehabilitation, dated 25 May 2012
* Letter, Department of Veterans Affairs (VA), dated 4 June 2012
* Letter from his Member of Congress, dated 25 July 2012
* Various VA records



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.  After having had previous enlisted service, the applicant enlisted in the Regular Army on 5 February 1986 and held military occupational specialty 95B (Military Police).  The highest rank/grade he attained while serving on active duty was sergeant/E-5.

3.  His DA Form 2-1 (Personnel Qualification Record) shows he was deployed to Saudi Arabia from 3 December 1990 to 16 May 1991.

4.  His record contains a DA Form 638, dated 29 March 1991.  This form shows he was recommended for and awarded the Army Commendation Medal with "V" Device.  This form shows the applicant reacted to a friendly fire situation calmly and without jeopardizing the security mission.

5.  Separation Orders Number 140-00485, issued by Headquarters, 101st Airborne Division (Air Assault), Fort Campbell, KY, dated 20 May 1993, show his effective date of discharge was 10 June 1993.  These orders further show he had received a disability rating of 20% and he was authorized severance pay in pay grade E-5.

6.  His DD Form 214 shows he was honorably discharged on 10 June 1993.  He completed 7 years, 4 months, and 6 days of net active service, 11 months and 
25 days of which was credited as foreign service.  His narrative reason for separation was listed as "physical disability with severance pay."

7.  He provided a memorandum written by sergeant first class (SFC) MDH, on 
30 March 1993.  SFC MDH stated:

	a.  The applicant was assigned to headquarters company in June 1992 because he was on a medical profile and unable to deploy with his unit.  The profile limited his ability to do anything other than office work.

	b.  The applicant put forth his best effort but he was unable to maintain his duties due to his constant medical appointments for physical therapy and occasional bouts with pain or numbness in his leg which caused additional medical appointments.  He lost so much time from work he was replaced and sent to a job that was not mission essential.  

	c.  He (SFC MDH) believed the applicant's career was halted in 1991 when he was first issued a temporary profile for a back injury he received while deployed in Desert Storm.  Due to his profiles and surgery he was not able to be boarded and subsequently promoted with his peers.

8.  The applicant provided a message issued by the Commander, AHRC, dated 17 May 1993, which states the applicant's disability resulted from a combat related injury.

9.  The applicant provided a letter from the VA, dated 4 June 2012, addressing his request for vocational rehabilitation benefits.  He was advised that all of his issues would be evaluated to determine his entitlement to vocational rehabilitation benefits.  This documentation included several printed screen displays from a VA data base, and a listing of his physical ailments/disabilities.  His back injury is among the listed items.

10.  Included as part of the Department of Defense Appropriations Act for fiscal year 1994 was an amendment to the rules governing award of the Purple Heart.  While the original rules established that the Purple Heart would be awarded to individuals killed or wounded as a result of hostile action the amendment enabled the Secretaries of each department to award the Purple Heart to members of the armed forces who were killed or wounded in action by weapons fire, while directly engaged in armed conflict, other than as the result of an act of an enemy of the United States.  This ruling granted the service Secretaries the authority to award the Purple Heart to individuals directly engaged in armed conflict who were killed or wounded as a result of "friendly fire."

11.  Army Regulation 600-8-22 (Military Awards) 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 evidence of record shows the applicant was present and reacted calmly to an incident of friendly fire and that he injured his back at some point while he was serving in Desert Storm.  However, he has not provided sufficient evidence to show these two occurrences were linked.  

2.  He has provided insufficient evidence to show he was directly involved in armed conflict when the friendly fire occurred and that in the heat of battle his injury occurred.  Based on the forgoing, there is insufficient evidence to grant relief in this case.

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)                                         AR20120012276



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ABCMR Record of Proceedings (cont)                                         AR20120012276



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