BOARD DATE: 18 December 2014
DOCKET NUMBER: AR20140008756
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, in effect, that he was wounded when a improvised explosive device (IED) detonated as his vehicle was passing. He is trying to readjust after his deployment and is currently in receipt of a total disability evaluation for posttraumatic stress disorder (PTSD).
3. The applicant provides a copy of a DA Form 2173 (Statement of Medical Examination and Duty Status).
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, as a U.S. Army Reserve (USAR) corporal, was called to active duty in support of Operation Iraqi Freedom. He served in Kuwait and Iraq from 7 February 2004 through 7 February 2005.
3. A 12 November 2004 DA Form 2173 shows the applicant sustained a concussion with headaches and ringing in the ears following the detonation of an IED. He was seen at the 67th Combat Support Hospital as an out-patient for the concussion. The incident and injury were found to be in the line of duty.
4. The applicant's DD Form 214 lists his awards as the Army Commendation Medal (2nd Award), National Defense Service Medal, War on Terrorism Expeditionary Medal, War on Terrorism Service Medal, Armed Forces Reserve Medal With "M" Device, Army Service Ribbon, Army Lapel Button, Marksman Marksmanship Qualification Badge with Rifle Bar, and the Driver and Mechanic Badge.
5. A Mayo Clinic website defines a concussion as a traumatic brain injury that alters the way the brain functions. Effects are usually temporary but can include headaches and problems with concentration, memory, balance and coordination. Although concussions usually are caused by a blow to the head, they can also occur when the head and upper body are violently shaken. These injuries can cause a loss of consciousness, but most concussions do not.
6. Army Regulation 600-8-22 (Military Awards) states:
a. The Purple Heart is awarded to an individual who is wounded in action against an enemy of the United States, the armed force of a foreign country which is or has been engaged, while serving with a friendly foreign forces against an opposing force even though the U.S. is not engaged, as the result of any act of such enemy or opposing force or as a result an act of any hostile foreign force. Substantiating evidence must be provided to verify that the wound was the result of hostile action, the wound must have required treatment by a medical officer, and the medical treatment must have been made a matter of official record.
b. 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 listed above. 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.
DISCUSSION AND CONCLUSIONS:
1. The applicant's service medical and dental records are believed to be on permanent loan to the Department of Veterans Affairs (VA) and are not available for review. Without access to those records the DA Form 2173 is insufficient to show the applicant received any medical treatment and that the medical treatment must have been made a matter of official record.
2. It is recommended that the applicant contact the VA directly and obtain copies of his medical records. Upon receipt of those records the applicant should carefully review his records and if they contain a record of treatment following the IED he should reapply to the ABCMR.
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.
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