IN THE CASE OF

		BOARD DATE:	    5 August 2014

		DOCKET NUMBER:  AR20130020143 


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 Combat Action Badge and, in effect, correction of his DD Form 214 (Certificate of Release or Discharge from Active Duty) to show these awards.  He also requests issuance of the Purple Heart and Combat Action Badge medal sets.

2.  The applicant states:

* he incurred an injury to his left shoulder and left ankle during a convoy ambush near Baghdad, Iraq, on 12 November 2013 (should read 2003)
* he followed up with physical therapy at Andrews Air Force Base after his return from deployment
* his DD Form 214 does not reflect his combat-related injury
* he has been concentrating on his post-traumatic stress disorder and family issues
* he has been in constant pain and requested assistance from the Department of Veterans Affairs for continued treatment

3.  The applicant provides:

* DA Form 4187 (Personnel Action), dated 12 November 2003
* self-authored memorandum, dated 14 November 2003
* Bronze Star Medal Certificate, dated 19 December 2003
* DD Form 214 for the period ending 21 March 2004
* DA Form 2173 (Statement of Medical Examination and Duty Status), dated 24 August 2004
* letter from the Commander, 547th Transportation Company, Anacostia Naval Annex, Washington, DC, dated 10 January 2005
* DA Form 1156 (Casualty Feeder Report), dated 10 January 2005
* medical record extracts

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.  Requests for retroactive award of the Combat Action Badge must be forwarded to the Commander, U.S. Army Human Resources Command, 
ATTN:  AHRC-PDP-A, 1600 Spearhead Division Avenue, Fort Knox, KY  40122.  Requests must be on a DA Form 4187 if an individual is currently on active duty or in an active status.  Individuals not on active duty or in an active status may request this award by letter.  All requests must contain:

* assignment, attachment, or operational control orders
* copy of the individual's Enlisted Record Brief or Personnel Qualification Record
* copy of the chain of command endorsement
* one-page narrative description of the qualifying incident
* certified copy of the DD Form 214
* other supporting documentation

3.  Therefore, since the applicant has not exhausted his administrative remedies, the Combat Action Badge will not be discussed further in this Record of Proceedings.

4.  After prior periods of honorable enlisted service in the Regular Army and the U.S. Army Reserve, the applicant enlisted in the California Army National Guard (ARNG) on 12 March 1996.

5.  On 20 February 1999, he received approval and acceptance for an interstate transfer to the DC ARNG.

6.  He was ordered to active duty on 8 March 2003.  Item 5 (Oversea Service) of his DA Form 2-1 (Personnel Qualification Record – Part II) shows he served in Iraq during the period 8 April 2003 through 12 February 2004.

7.  On 12 November 2003, the Commander, 547th Transportation Company, submitted a DA Form 4187 through the Commander, 28th Combat Support Hospital, Baghdad, Iraq, recommending the applicant for award of the Purple Heart for sustaining an injury during an ambush attack on 12 November 2003.  The recommendation only bears the signature of the recommending official and does not show any other coordination, signatures, or approval.

8.  On 21 March 2004, the applicant was honorably released from active duty to the control of his ARNG unit by reason of completion of required active service.  His DD Form 214 for this period does not show award of the Purple Heart.

9.  A DA Form 2173, dated 24 August 2004, shows he was examined at the 28th Combat Support Hospital, Baghdad, Iraq, on 14 November 2003 for a sprained left ankle injury incurred while serving on active duty orders on 12 November 2003.  Item 30 (Details of Accident – Remarks) states he stepped in a large pothole on the roadside while receiving harassing fire during a combat operation.

10.  On 10 January 2005, the Commander, 547th Transportation Company, submitted a memorandum, subject:  Verification Letter for (Applicant), 547th Transportation Company, to Receive the Purple Heart Award, to the Commander, U.S. Total Army Personnel Command, Alexandria, VA, through the Commander, 74th Troop Command, Washington, DC.  There is no evidence the request was processed, approved, or disapproved.

11.  On 28 November 2011, the applicant was discharged from the ARNG.  His National Guard Bureau Form 22 (Report of Separation and Record of Service) does not show award of the Purple Heart.

12.  The applicant provided:

	a.  a memorandum from the applicant to the 485th Corps Support Battalion, dated 14 November 2003, subject:  Mission After Action/Closure Report, that summarizes a 3d Platoon, 547th Transportation Company, mission in Iraq during the period 7 through 13 November 2003 and describes the injury he sustained to his ankle when he stepped in a large hole while running during incoming small arms fire;

	b.  a Bronze Star Medal Certificate which shows 16th Corps Support Group Permanent Orders 353-030, dated 19 December 2003, awarded him the Bronze Star Medal for meritorious service as a convoy commander in support of Operation Iraqi Freedom; and

	c.  a DA Form 1156, dated 10 January 2005, which shows the applicant injured his right ankle while dodging small arms fire on 12 November 2003.

13.  The applicant also provided medical record extracts which show, in part, he was prescribed physical therapy to assist with strengthening his left ankle.  His medical record extracts fail to show he sustained any injuries as a direct result of hostile action.

14.  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 this award 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.  In this case, the applicant's injury resulted from stepping in a pothole, not directly from enemy action itself.  As such, this accidental injury does not meet the criteria or the intent for award of the Purple Heart.

3.  Notwithstanding his sincerity, in the absence of documentation that conclusively shows he was wounded or injured as a result of hostile action, 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)                                         AR20130020143



3


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1

ABCMR Record of Proceedings (cont)                                         AR20130020143



2


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1