IN THE CASE OF:	  

		BOARD DATE:	  27 March 2014

		DOCKET NUMBER:  AR20140001715 


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

2.  The applicant states:

* he was injured on 24 July 2009; he was present and physically located within 15 meters of the impact zone of several enemy mortar rounds
* he was involved in an enemy indirect mortar attack that set ablaze a lithium battery warehouse 
* the incident caused him internal injuries and concussion injuries as a result of an enemy-generated explosion
* HRC stated he did not meet the criteria for award of the Purple Heart because he was responding to an enemy attack rather than being involved in the attack
* the impact of the mortar rounds caused the concussion and the smoke and fumes from the battery caused internal injuries to his nose, throat, and airway and required three surgical procedures
* the fact that he provided assistance does not change the fact that he was exposed to two physical events as a result of direct enemy action

3.  The applicant provides:

* Medical statement, dated 15 January 2014
* DA Form 3349 (Physical Profile), dated 8 January 2014
* Officer Record Brief, dated 16 January 2014
* Standard Form 600 (Chronological Record of Medical Care), dated 24 July 2009
* Orders A-09-926119 (deployment)
* Standard Form 600, dated 23 October 2009
* DD Form 2796 (Post-Deployment Health Assessment (PDHA))
* Fire Incident Report, dated 28 July 2009
* Memorandum for Record, dated 14 February 2011
* Witness statement, dated 14 January 2011
* HRC denial letter, dated 10 December 2013

CONSIDERATION OF EVIDENCE:

1.  The applicant's records show he was appointed as Regular Army commissioned officer and entered active duty on 5 June 1997.  He completed the Infantry Basic Officer Leader Course. 

2.  He served in a variety of stateside or overseas assignments and he was promoted to major on 1 February 2007.  At the time of the incident, he was assigned to the Multi-National Sustainment Training Command, Multi-National Force Iraq. 

3.  The applicant provides:

	a.   Standard Form 600, dated 24 July 2009, which shows the applicant was exposed to smoke and acid fumes from burning batteries.  He inhaled smoke from burning plastic and waste.  He was also exposed to loud noise, an explosion, and heat.  He was seen for headache, dizziness, irritated eyes, sore throat, coughing, congestion, and runny nose.  He was given “CHI” for facial, skin, and watery eyes, and Tylenol for the headaches.  

	b.  A Fire Incident Report, dated 28 July 2009, that essentially describes a loud explosion from a mortar round that occurred on Friday 24 July 2009 at a lithium battery warehouse in Baghdad, Iraq.  Some personnel working inside the warehouse were injured.  

	c.  DD Form 2796 (PDHA), dated 23 October 2009, in which he states he served in theater from 19 June to 29 September 2009.  He indicated he had breathing difficulty and claimed he was injured during this deployment.  He attributed his injury to a blast in a battery warehouse fire accident.


	d.  Standard Form 600, dated 23 October 2009, which he completed in conjunction with the PDHA and he again indicated he was injured by a blast or explosion of a lithium battery warehouse.  He rated his health as much worse now than when he deployed and indicated his emotional problems are now very difficult.  He also stated he was a patient at the Warrior Transition Unit and is scheduled for Rhinoplasty on 2 November 2009. 

4.  On 29 August 2013, the Commander, U.S. Army Element, Joint Task Force Civil Support, Fort Eustis, VA, submitted a DA Form 4187 (Personnel Action) to the Commander, HRC, recommending the applicant be awarded the Purple Heart for wounds received in action caused directly by the enemy.  He stated:

The applicant was involved in an enemy indirect mortar attack that set ablaze a lithium battery warehouse causing internal injuries and damage to his respiratory airways due to exposure to toxic fumes while in Iraq. 

5.  With this request, which was favorably endorsed by the Commanding General, Joint Task Force Civil Support, Fort Eustis, he submitted:

	a.  Memorandum for Record, dated 14 February 2011, from Chief Warrant Officer Four (CW4) MEA, an aviation officer, who states he was forward deployed in Iraq from 20 June 2009 to 14 June 2010.  On the evening of 24 July 2009, after an enemy indirect mortar attack at Victory Base Camp, he went to see if there was any assistance he could provide.  He witnessed the applicant and others within 20 to 30 meters from the burning warehouse receiving medical assistance from the medics on site.  He later learned of the contents of the warehouse which burned for several days with thick black smoke.  He also later learned that the applicant departed theater due to medical issues caused by the exposure during the mortar attack. 

	b.  Statement from MAJ TEB, dated 14 February 2011, who states he worked as a quality assurance technician for a joint program in Kuwait.  He states that on 24 July 2009 he personally witnessed the applicant physically present and within 20 meters of the location that came under enemy indirect mortar attack on base.  He was departing after a meeting that day when he witnessed several mortar rounds impacting the warehouse and setting ablaze the entire facility.  He remembers the applicant because he immediately arrived at the site after a mortar round impacted within a few meters from his location.  He saw him exiting his vehicle and running toward the building and his location was within 20 meters from the explosion.  He was then actively involved in assisting some of the personnel who were injured in the attack.  He also had the opportunity to talk to the applicant at that time.  
	c.  Statement from Mr. GLF, dated 24 November 2011, who states he also worked at the joint program in Kuwait at the time.  He adds that he personally witnessed the applicant on 24 July 2009 physically present at the location when that location came under enemy indirect mortar attack.  He saw the applicant dismount and run from his vehicle to within 20 meters of his position.  At the time of the explosion, he (the author) was a few meters away from the applicant and about 15 meters from the door to the warehouse.  There were three rounds that impacted the area.  As soon as the applicant arrived, he ran toward the building when another round impacted within 20 meters of his location.  

6.  On 10 December 2012, by memorandum, the Chief, Awards and Decorations Branch, HRC, disapproved the request for award of the Purple Heart.  The memorandum stated that the narrative and sworn statements provided show that the injuries are not directly caused by enemy action.  The mortar round impacted the warehouse that the applicant was not inhabiting and although he went above and beyond the call of duty to rescue those injured in the attack, this injury does not meet the criteria for award of the Purple Heart. 

7.  He provides additional documents:

	a.  A medical statement, dated 15 January 2004, that shows he was seen at the Internal Medicine Clinic at Fort Eustis for primary care.  He was exposed to a blast while serving in Iraq in 2009.  Since that time, he has been experiencing intermittent headaches, dizziness, visual disturbances, anxiety, and asthma (attributed to fume exposure).  His medical condition is consistent with a concussion and traumatic brain injury. 

	b.  DA Form 3349, dated 8 January 2014, for asthma.  The profile states he was medically evacuated from Iraq in 2009 after exposure to toxic fumes and subsequently developed asthma.  

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 inhaling fumes and exposure to a loud noise, not from the mortar round itself.  The fact that he exited the vehicle, approached the warehouse, and assisted the wounded/injured, is noted; however, the agent that caused the injury was the battery fumes; the mortar round 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 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)                                         AR20140001715



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ABCMR Record of Proceedings (cont)                                         AR20140001715



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