IN THE CASE OF:	  

		BOARD DATE:	  26 November 2013

		DOCKET NUMBER:  AR20130004723 


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.

2.  The applicant states she was wounded by enemy contact and will forever live with a neck injury.  Not granting her this award is unjust due to not having a real explanation and reason for not receiving it.  She was alone with 15 Iraqi Soldiers when the attack happened which is why there were no eyewitnesses. 

3.  The applicant provides:

* Congressional correspondence
* Denial letter from the U.S. Army Human Resources Command (HRC)
* DA Form 4187 (Personnel Action), request for award of the Purple Heart
* Incomplete DA Form 2173 (Statement of Medical Examination and Duty Status)
* Standard Forms 600 (Chronological Record of Medical Care)
* Incomplete DD Form 261 (Report of Investigation - Line of Duty and Misconduct Statement)
* DD Form 214 (Certificate of Release or Discharge from Active Duty)
* Self-authored DA Form 2823 (Sworn Statement)
* Other DA Forms 2823
* Orders for award of the Combat Action Badge
* Civilian medical records
* Department of Veterans Affairs (VA) Compensation and Pension Examination Report

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 U.S. Army Reserve on 15 May 2002 and she held military occupational specialty 92Y (Unit Supply Specialist).  She was ordered to active duty on 24 September 2004 and subsequently served in Kuwait/Iraq from 1 October 2004 to 13 September 2005.  

3.  She was honorably released from active duty on 6 October 2005.  Her 
DD Form 214, as amended by her DD Form 215 (Correction to DD Form 214), does not list the Purple Heart. 

4.  It appears she communicated with HRC regarding her eligibility for award of the Purple Heart. 

5.  On 15 March 2007, by letter, an HRC official notified the applicant's commander that according to the governing regulation, a request for award of the Purple Heart is processed on a DA Form 4187 which must be submitted through the chain of command to the approving authority.  The request must include documentary evidence of medical treatment pertaining to the wound.  During wartime, the request must include

* Sworn eyewitness statements or affidavits
* DA Form 1155 (Witness Statements on Individual)
* Casualty Report or Message
* DA Form 1156 (Casualty Feeder Report)
* DD Form 1380 (U.S. Field Medical Card)
* Unit and Medical Journals
* Other documentation necessary to corroborate the award

6.  She submitted or forwarded through her chain of command a request for award of the Purple Heart to HRC based on the following documents:  
	a.  DA Form 4187, dated 5 June 2006 (possibly 2008), signed by the company commander of Company E, 1st Battalion, 304th Infantry Regiment.  The company commander states on 20 April 2005, the applicant came under enemy rocket attack at Camp Taji in Iraq.  The rockets exploded approximately 10 to 15 meters from her position.  She was struck in the neck by debris from the explosion while jumping between connexes and she sought treatment on 20 April 2005.  At that time, no hearing loss or tinnitus were reported.  Follow up treatment for the injury occurred on 10, 11, and 29 May 2005 at Camp Taji.  She was evaluated at the 86th Combat Support Hospital - North and it was noted her neck injury would require physical therapy and it was battle related.  She also requested a hearing test during demobilization because she began to experience ringing and whistling in her ears.  An audiogram, dated 30 September 2005, demonstrated she had suffered hearing loss and tinnitus as a result of the explosion from the rocket attack.  In November 2005, she applied for disability based on her tinnitus and ongoing treatment.  She was awarded service-connected disability compensation by the VA.  It was noted that the March examination recorded a lump and neck pain still evident nearly 1 year after this incident. 

	b. An incomplete DA Form 2173, dated 2 September 2005, which shows the entry "Hit with 3 rockets 20 feet away …[illegible word] from ground hit my neck at CEW on 20 April 2005 caused a lump on my neck."  The form is signed by an unknown captain.  However, the form is incomplete as no information or signature is provided by the unit commander and or unit advisor.  

	c.  An incomplete DD Form 261, dated 10 May 2005, signed by a Physician Assistant at Travis Air Force Base shows she suffered an injury on 20 April 2005 at Camp Taji while jumping between connexes during a rocket attack.  This form is also incomplete and not signed by an investigating officer, approving authority, or reviewing authority.  No final approval or disposition is listed. 

	d.  A self-authored sworn statement, dated 6 September 2005, wherein she states on 20 April 2005, three rockets hit the “CEW” at Camp Taji, Iraq.  She jumped off the forklift and ran to her vehicle to grab the radio when she heard a whistled sound and ran between the connexes.  The second rocket hit about 
25 yards from her causing pieces of the ground to hit her neck.  The third went directly over her and hit 20 yards from her.  Three Iraqi soldiers were injured.  She called for help and helped the wounded while awaiting help. 

	e.  A sworn statement, dated 5 September 2005, from a staff sergeant who states on 20 April 2005, three rounds came into their compound where the applicant was working.  After the impact, the applicant helped where needed.  

	f.  A sworn statement, dated 6 September 2005, from a specialist who states on 20 April 2005 while working, he heard explosions coming from their old location.  He called the applicant to see if everything was OK.  She told him that three rockets had landed and three Iraqi soldiers were injured.  

	g.  Permanent Orders 336-005, issued by Headquarters, 98th Division, Rochester, NY, on 2 December 2005, awarding her the Combat Action Badge for actively engaging or being engaged by the enemy on 20 April 2005. 

	h.  Multiple chronological records of medical care, dated in April and May 2005, and related to neck pain attributed to an injury while jumping in between connexes for cover.  The documents state "no open wound, no shrapnel wound, no ….. to ex.., no head injury, no hearing loss or tinnitus." 

	i.  A VA compensation and examination report with progress notes. 

7.  In a letter, dated 20 July 2009, to the applicant’s Member of Congress, an HRC official outlined the criteria for award of the Purple Heart and indicated as previously stated in their 8 April 2009 letter, due to the nature of the applicant's injury, HRC coordinated with The Office of the Surgeon General (OTSG) of the Army.  The documentation submitted by the applicant was reviewed by HRC as well as The OTSG and they determined the applicant's injury does not meet the criteria for 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

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 available evidence shows the applicant's injury resulted from debris, scattered remains, and not from shrapnel or the rocket fire.  The fact that others (Iraqi soldiers) were injured, or that the applicant was treated for neck pain, or that the group of Soldiers (Iraqi soldiers and the applicant) as a whole engaged or was engaged by the enemy and warranted awarding her the Combat Action Badge, does not mean the enemy rockets caused her neck pain and/or injury.  As such, her injury does not meet the criteria or the intent for award of the Purple Heart.

4.  Notwithstanding her sincerity, in the absence of documentation that conclusively shows she was wounded or injured as a result of hostile action, treated for those wounds/injuries, and her 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 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)                                         AR20130004723



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ABCMR Record of Proceedings (cont)                                         AR20130004723



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