IN THE CASE OF:	  

		BOARD DATE:	  20 June 2013

		DOCKET NUMBER:  AR20120021115 


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:

The applicant defers requests and statements to counsel and provides no additional evidence.

COUNSEL'S REQUEST, STATEMENT AND EVIDENCE:

1.  Counsel requests reconsideration of the applicant's previous request for award of the Purple Heart.

 2.  Counsel states:

	a.  The applicant is not seeking reconsideration of the other matters, only his award of the Purple Heart for injuries received on 29 June 2008.  

	b.  The applicant served on active duty in the Army from 19 October 2005 through 21 March 2009.  He served in Afghanistan for 14 months from 3 May 2007 through 14 July 2008.  Army Regulation 600-8-22 (Military Awards), paragraph 2-8(a-k), gives the criteria for an entitlement of the Purple Heart.  The new evidence meets the criteria in Army Regulation 600-8-22, paragraphs 2-8(a-k) and thus demonstrates the applicant is entitled to award of the Purple Heart for injuries suffered on 29 June 2008 for a land mine explosion.  Four statements are included with this letter, one from the applicant and the other three statements are from fellow Soldiers.


	c.  Finally, the applicant's military health record from both the date of the land mine explosion and subsequent months show he received immediate and continuous treatment for the injury sustained in the blast.  The applicant was on a combat patrol as a forward observer and was standing next to Captain (CPT) Mxxxxx when CPT Mxxxxx stepped on a land mine.  The land mine detonated and as a result of his close proximity, the applicant was injured by the secondary blast effects.

   d.  The applicant was medically evacuated to Forward Operating Base (FOB) Bostick (formerly FOB Narray) for treatment.  His official health record from 29 June 2008 indicates he was admitted into the 1-91 Cavalry clinic because of open wounds caused by an exploding military device.  The wounds were on his left thigh, right leg, and right hand.  X-rays taken that day showed metallic fragments in his right hand and right leg.  The applicant's physician recorded the applicant's wounds were bandaged and he was further treated with Ceftizonmine (an antibiotic).
   
   e.  These facts, as recorded by sworn statements, establish the factual basis for the award.  They are further enforced by the excerpts from his official health record detailing the injuries, their source, and their treatment by a physician.
   
   f.  Furthermore, the applicant will be applying to the U.S. Army Human Resources Command (HRC) for an entitlement to a second award of the Purple Heart.  The applicant was involved in a rocket-propelled grenade attack almost a year prior to the land mine explosion and as a result suffered a concussion.  According to recent changes in the criteria for the award of the Purple Heart, the applicant is likely entitled to a second award for his concussion.  Consequently, he may be qualified for consideration for other relief previously requested from and denied by the Army Board for Correction of Military Record (ABCMR) on 6 December 2011 if he pursues proper application to the lower level administrative bodies for the second award of the Purple Heart.
   
   g.  The statutory purpose of Title 10, U.S. Code, section 1552(a)(1) is to permit correction of a Soldier's military record when it is "necessary to correct an error or remove an injustice."  Sergeant First Class (SFC) Bxxxx's statement details his attempts to process the applicant's Purple Heart through proper channels.  It would be fundamentally unfair to deny the applicant the award as a result of bureaucratic inefficiency or unrelated investigations.  In keeping with the purpose of the statute, the applicant’s previous denial of an award of the Purple Heart for his injuries sustained on 29 June 2008 should be reconsidered and decided in his favor.


3.  Counsel provides:

* DA Form 3349 (Physical Profile)
* Eight Standard Forms 600 (Health Record – Chronological Record of Medical Care)
* four sworn statements

CONSIDERATION OF EVIDENCE:

1.  Incorporated herein by reference are military records which were summarized in the previous consideration of the applicant's case by the ABCMR in Docket Number AR20110004978, on 6 December 2011.

2.  Counsel submits four sworn statements, eight Standard Forms 600, and a DA Form 3349.  These documents are new evidence that will be considered by the Board.

3.  The applicant enlisted in the Regular Army on 19 October 2005.  He completed training and he was awarded military occupational specialty 13F (Fire Support Specialist).  He served in Afghanistan from 13 May 2007 through 14 July 2008.  

4.  He was honorably released from active duty on 21 March 2009 and was transferred to the U.S. Army Reserve Control Group (Reinforcement).  He was credited with completing 3 years, 5 months, and 3 days of net service with no time lost.  His DD Form 214 (Certificate of Release or Discharge from Active Duty) lists the:

* Afghanistan Campaign Medal with one bronze service star
* Army Commendation Medal
* National Defense Service Medal
* Global War of Terrorism Service Medal
* Army Service Ribbon
* Overseas Service Ribbon (2nd Award)
* North Atlantic Treaty Organization Medal
* Combat Action Badge
* Parachutist Badge

5.  Counsel provided the following documents:

	a.  A DD Form 3349, dated 13 August 2008, which shows the applicant was given a temporary profile for symptoms of head concussions and persistent joint issues.  He was restricted from running or any high impact activities such as airborne jumping.

	b.  Eight Standard Forms 600, dated between 29 June 2008 and 27 January 2009, which show the applicant underwent medical treatment after being wounded from fragments from a land mine that was stepped on by a squad member who was standing shoulder to shoulder with him and a concussion with a brief loss of consciousness.  X-rays were performed showing very small metallic fragments in his right leg and right hand.  His wounds were cleaned and bandaged and were treated with Ceftizonmine.  The forms also show he received medical treatment for joint pain of the knee; post-concussion syndrome; headaches; hip, back, and ankle pain as a result of shrapnel wounds; and anxiety disorder.

   c.  A sworn statement from the applicant, wherein the applicant stated:

        (1)  He served 14 months in Afghanistan and was assigned to Troop B, 1st Battalion, 91st Cavalry (Airborne) as a forward observer for the 2nd platoon.  On 29 June 2008, he was on a combat patrol in the Kamdesh District, Nuristan Province, Afghanistan with CPT Mxxxxx (then lieutenant (LT) Mxxxxx).  CPT Mxxxxx stepped on a "toe popper" land mine.  The ensuing explosion destroyed CPT Mxxxxx's leg, such that it had to be amputated.  Because he was standing right next to CPT Mxxxxx when he stepped on the land mine, he suffered injuries from the blast as well.  He had open wounds on his left thigh, right leg, and right hand.  Additionally, fragmentation from the mine was blown into his right leg and right hand.

	     (2)  A MEDEVAC helicopter took him to FOB Bostick, his wounds were bandaged, X-rays were taken, and he was given an antibiotic.  After he left Afghanistan, he was transported to the American Hospital Center Schweinfurt post-deployment.  Pieces of fragmentation had worked their way to the surface of his skin for approximately eighteen months after the injury.

        (3)  After the blast, on two separate occasions, SFC Bxxxx attempted to submit paperwork for his Purple Heart award.  On both occasions, the paperwork was lost in the administrative process.

	d.  A sworn statement from CPT Mxxxxx, wherein the individual stated:

	     (1)  On the morning of 29 June 2008, he was leading a squad from the 2nd Platoon on a patrol to the northwest of Observation Post Fritsch in the Kamdesh District.  The patrol was conducting sensitive sight exploitation of an area where a Marine Embedded Training Team attached to his platoon was injured a week prior.  Upon arrival at the site the squad provided security while he investigated the scene.

	     (2)  As they started their movement, he initiated what was suspected to be a pressure plate improvised explosive device (IED) and/or an anti-personnel land mine.  At the moment of the blast the applicant was standing next to him approximately two feet to his left.  He remained conscious from the blast and as he began to gain control of the situation he realized the applicant was also injured and was lying on the ground approximately one to two feet to his left.  

        (3)  The applicant was medically evaluated with him and then taken off at FOB Bostick for treatment of wounds he sustained as a result of the land mine and/or IED.  Following the incident, he was evacuated out of Afghanistan and lost visibility on the applicant's situation.

	e.  A sworn statement from SFC Bxxxx, wherein the individual stated:

	     (1)  On the day the applicant was injured, they were operating out of Observation Post Fritsch.  He was not in the immediate area when the applicant and his platoon leader were injured in an explosion.  However, he was immediately notified because of the injury of his platoon leader.  The lieutenant lost part of his leg as a result of stepping on a toe-popper land mine.  The applicant was standing right next to the lieutenant when the blast occurred and was hit in his own leg with fragmentation.  He observed the applicant's wounds.

        (2)  He submitted paperwork on two occasions for the applicant to receive the Purple Heart.  He was absolutely convinced based on his own observations of the wounds and in investigating the circumstances of the injury that the applicant's injuries were due to action by a hostile enemy force.  He personally signed both recommendations as the recommending official.  
   
        (3)  To his knowledge, the first recommendation was lost on its way up to brigade headquarters while they were still in Afghanistan.  He checked on the award and discovered this unfortunate administrative oversight.  When they returned to Europe he again submitted the award recommendation which he was able to trace.  He verified the battalion commander had signed off on the award and it was transmitted to the brigade commander for action.  Unfortunately, at the exact same time as the award was being processed, the brigade commander was relieved of command for his own misconduct.  To his knowledge, all of the items that were pending his action were lost in the process.
   
        (4)  He strongly recommends the applicant be awarded the Purple Heart.  He is ashamed that his Army has lost the paperwork and has not honored this combat-injured Soldier.

   f.  A sworn statement from Private First Class Lxxx, wherein the individual stated he served with the applicant in the U.S. Army on the observer team for the 2nd Platoon through most of their deployment to Afghanistan.  The applicant was about 200 meters from his position when the applicant was injured.  He did not personally observe the explosion, but he heard the explosion and saw the smoke plume and spoke to the lieutenant on the radio.  He heard about the applicant's and the lieutenant’s injuries.  He was told the applicant was standing near LT Mxxxxx when he stepped on the toe-popper.  He was also told the applicant was airlifted to FOB Bostick for treatment.  The applicant returned to the unit within a day or two and showed him the fragmentation wounds in his leg.

6.  On 5 June 2013, a staff member of the HRC Awards and Decorations Branch verified their records indicated the applicant's unit had submitted a request for award of the Purple Heart in 2010.  The request was returned without action because no medical documentation was provided.

7.  On 12 June 2013, a staff member of HRC, Casualty and Mortuary Affairs Branch, verified they had a casualty report for that incident and the applicant.  The casualty report stated on 19 June 2008 during a dismounted patrol around the vicinity of the Kamdesh District, a land mine exploded near the element’s position.  The applicant received shrapnel wounds in both legs, but he was not seriously injured.

8.  Army Regulation 600-8-22 (Military Awards) prescribes Army policy, criteria, and administrative instructions concerning individual and unit military awards.

	a.  This regulation specifies a 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.

	b.  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.

	c.  This regulation further 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.  Examples of enemy-related injuries which clearly justify award of the Purple Heart are an injury caused by enemy placed mine or trap.

	d.  It is not intended that such a strict interpretation of the requirement for the wound or injury to be caused by direct result of hostile action be taken that it would preclude the award being made to deserving personnel.  Commanders
must also take into consideration the circumstances surrounding an injury, even if it appears to meet the criteria. 

DISCUSSION AND CONCLUSIONS:

1.  The applicant's and counsel's contentions regarding award of Purple Heart for injuries the applicant received on 29 June 2008 were carefully considered and found to have merit.

2.  The evidence of record shows the applicant served in Afghanistan from 13 May 2007 through 14 July 2008.  On 29 June 2008, he sustained a combat injury as a result of a land mine explosion.  He was medically evacuated to FOB Bostick for treatment.  It appears his unit recommended him for award of the Purple Heart for this incident; however, no medical records were submitted with the request.

3.  The evidence of record shows the injuries he sustained on 29 July 2008 were the direct result of an enemy placed mine.  He received medical treatment and this treatment was made a matter of official record.  Examples of enemy-related injuries which clearly justify award of the Purple Heart are an injury caused by enemy placed mine or trap.  

4.  In accordance with current regulatory guidance the evidence shows he met the criteria for award of the Purple Heart.  Therefore, he is entitled to correction to his records to show award of the Purple Heart for injuries he sustained on 
29 June 2008 while serving in Afghanistan.

BOARD VOTE:

____X____  ___X_____  ___X_____  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION
BOARD DETERMINATION/RECOMMENDATION:

The Board determined that the evidence presented was sufficient to warrant amendment of the ABCMR’s decision in Docket Number AR20110004978, dated 
6 December 2011.  As a result, the Board recommends that all Department of the Army records of the individual concerned be corrected by awarding the applicant the Purple Heart for injuries sustained on 29 June 2008 in Afghanistan and adding this award 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)                                         AR20120021115



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ABCMR Record of Proceedings (cont)                                         AR20120021115



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