IN THE CASE OF:	  

		BOARD DATE:	  18 April 2013

		DOCKET NUMBER:  AR20120018508 


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 reversal of the decision by the U.S. Army Human Resources Command (HRC) Awards and Decorations Board denying him award of the Purple Heart.

2.  The applicant states:

* he was injured in Baghdad at the onset of Operation Iraqi Freedom
* he sustained a head, neck, and back injury when the heavy equipment transporter (HET) he was driving collided with another vehicle in front of his
* the vehicle in front of him came under small arms fire which caused its driver to stop suddenly
* his vehicle was hit with a rocket-propelled grenade (RPG) after the collision
* two other Soldiers and he were medically evacuated to the 98th Combat Support Hospital in Baghdad for initial care and released to his unit in Kuwait for further treatment
* he is still being treated for injuries to this day
* he is currently being seen for traumatic brain injury (TBI) for the head wound he received when his head hit the metal console after his helmet was knocked off from the violent impact of the collision
* he had major back surgery in 2009 for herniated and ruptured discs
* 
his chain of command did not recommend him for the award because his commander and first sergeant were relieved in a cascade of unrelated issues
* he was later awarded the Combat Action Badge for this incident
* the Department of Veterans Affairs awarded him service-connected disability compensation for his back and neck, as well as for TBI
* he deserves award of the Purple Heart

3.  The applicant provides:

* Standard Form 600 (Chronological Record of Medical Care)
* assumption of command memorandum
* DA Form 2173 (Statement of Medical Examination and Duty Status)
* front of DA Form 2823 (Sworn Statement)
* letter of evaluation
* Physical Disability Information Report
* DA Form 3947 (Medical Evaluation Board (MEB) Proceedings)
* Combat Action Badge orders
* DA Form 199 (Physical Evaluation Board (PEB) Proceedings)
* denial letter from HRC
* DD Form 214 (Certificate of Release or Discharge from Active Duty)

CONSIDERATION OF EVIDENCE:

1.  The applicant's records show he enlisted in the Regular Army on 1 October 1998 and he held military occupational specialty 88M (Motor Transport Operator).  He executed a reenlistment on 3 October 2001.

2.  He served in Kuwait from 20 October to 19 November 2002 and in Kuwait/Iraq from 23 January 2003 to 19 January 2004.  He was assigned to the 377th Transportation Company (HET).

3.  In June 2003, he injured his back and neck.  A DA Form 2173 was initiated on 21 January 2005.

	a.  Item 15 (Details of the Accident or History of the Disease) shows he stated he had to make a sudden stop while in a convoy in a HET as a restrained driver and rear-ended the truck in front of him and was then struck from behind.  He hit his chest on the steering wheel and immediately noted chest, neck, and lower back pain, along with moderate knee pain.  At the time he was taking live fire from RPG's.

	b.  Item 30 (Details of the Accident – Remarks) shows the entry, "chest, neck and lower back pain along with moderate knee pain.  SM [Applicant] at the same time was taking live fire from RPG's," followed by the hand-written entry, "SM was driving in a convoy when the vehicle in front of him stopped.  He hit the vehicle and was rear ended by the vehicle behind of him.  SM received the injury from the multiple collisions."

4.  He was diagnosed with mechanical low back pain and right ulnar nerve compressive neuropathy.  He was considered by an MEB that referred him to a PEB.  The PEB determined his injury was caused by an instrumentality of war (HET) during a traffic accident caused by an ambush in Iraq and recommended his separation with entitlement to severance pay.  He concurred.

5.  He was discharged on 19 May 2005 by reason of disability with entitlement to severance pay.  His DD Form 214 does not show award of the Purple Heart.

6.  On 27 March 2007, HRC issued permanent orders awarding him the Combat Action Badge for actively engaging or being engaged by the enemy on 15 June 2003.

7.  On 23 May 2011, the HRC Awards and Decorations Branch denied award of the Purple Heart because the supporting documentation he provided indicated his accident on 15 June 2003 was not caused by the enemy.  The sworn statement he provided shows the convoy was hit with RPG's after the collision.  Accidents not caused by the enemy do not warrant award of the Purple Heart.

8.  Army Regulation 600-8-22 (Military Awards) provides that 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.

	a.  A wound is defined as an injury to any part of the body from an outside force or agent sustained under one or more of the conditions applicable to the Purple Heart.  A physical lesion is not required; however, the wound for which the award is made must have required treatment by medical personnel and records of medical treatment for wounds or injuries received in action must have been made a matter of official record.

	b.  Examples of enemy-related injuries which clearly justify award of the Purple Heart are as follows:

* 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

	c.  Examples of injuries or wounds which clearly do not justify award of the Purple Heart are as follows:

* frostbite or trench foot injuries
* heat stroke
* food poisoning not caused by enemy agents
* chemical, biological, or nuclear agents not released by the enemy
* battle fatigue
* disease not directly caused by enemy agents
* accidents, to include explosive, aircraft, vehicular, and other accidental wounding not related to or caused by enemy action
* self-inflicted wounds, except when in the heat of battle and not involving gross negligence
* post-traumatic stress disorders
* jump injuries not caused by enemy action

DISCUSSION AND CONCLUSIONS:

1.  The Purple Heart differs from all other decorations in that an individual is not "recommended" for the decoration; rather, he or she is entitled to it upon meeting specific criteria.  When contemplating award of the Purple Heart, the key issue that commanders must take into consideration is the degree to which the enemy caused the injury.  The fact that the proposed recipient was participating in direct or indirect combat operations is a necessary prerequisite, but is not the sole justification for the award.

2.  The criteria for an award of the Purple Heart requires the submission of substantiating evidence to verify the injury/wound was sustained in action against an enemy or as a result of hostile action, the injury/wound must have required treatment by medical personnel, and the medical treatment must have been made a matter of official record.

3.  In this case, the applicant's injury resulted from a vehicular collision, not from enemy small fire or enemy RPG's.  The fact that the convoy as a whole engaged or was being engaged by the enemy warranted award of the Combat Action Badge, but this engagement did not cause the injury.  As such, his injury does not meet the criteria or the intent for award of the Purple Heart.

4.  Notwithstanding his sincerity, in the absence of documentation that conclusively shows he was wounded or injured as a result of hostile action, treated for those wounds/injuries, and his treatment was made a matter of record, there is insufficient evidence upon which to base award of the Purple Heart 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 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)                                         AR20120018508



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ABCMR Record of Proceedings (cont)                                         AR20120018508



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