BOARD DATE: 16 April 2015
DOCKET NUMBER: AR20140015266
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, he is requesting award of the Purple Heart for injuries sustained due to an improvised explosive device (IED) blast in Iraq on
29 July 2005. He understands an award of the Purple Heart is warranted in the case of an IED blast resulting in an injury. He recently became aware that the Army allows award of the Purple Heart for battlefield "concussions." He was involved in three separate IED blasts, one of which resulted in him being awarded disability from the Department of Veterans Affairs (VA) for post-concussion headaches.
3. The applicant provides copies of a five-page statement written in his own behalf; a letter from the Army Human Resources Command (AHRC), dated
14 May 2014; DA Form 2173 (Statement of Medical Examination and Duty Status); two pages of medical treatment records; and an Army Board for Correction of Military Records (ABCMR) Record of Proceedings (ROP), Docket Number AR20130009926, dated 6 February 2014, with attachments.
4. The above ABCMR ROP, dated 6 February 2014, did not deny the applicant award of the Purple Heart; but rather declined to address that aspect of the application due to failure to exhaust all other administrative remedies. The submissions provided at that time included copies of the IED incident reports/sworn statements, a VA disability rating decision, and other documents.
COUNSEL'S REQUEST, STATEMENT AND EVIDENCE:
1. Counsel requests the additional evidence provided be seriously considered for a granting award of the Purple Heart.
2. Counsel states a previous application that was forwarded to the ABCMR but it was denied (not considered) due to his failure to first submit the request to AHRC.
3. Counsel provides no additional documentation.
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 Regular Army on 22 August 1997, completed the training requirements, and he was awarded military occupational specialty 11B (Infantryman). On 5 July 2001, he was released from active duty and transferred to the Wisconsin Army National Guard (WIARNG).
3. He was ordered to active duty in support of Operation Enduring Freedom on 20 June 2004 and served in Iraq from 24 November 2004 through 29 October 2005.
4. On 29 June 2005, the applicant sustained concussive trauma from an IED blast while on patrol in Samarra, Iraq. He received treatment at the 228th Combat Support Hospital and was afforded a diagnosis of possible perforated eardrum with conductive hearing loss.
5. On 27 August 2005, follow-up medical treatment shows the applicant was suffering from tinnitus, right ear pain, and subjective hearing loss with no improvement since he was last seen.
6. 20 November 2005, the applicant was honorably released from active duty and was transferred to the WIARNG. On 6 March 2006, he was honorably discharged from the WIAARNG.
7. In concert with a prior application, the applicant provided copies of sworn statements attesting to his injury as a result of an IED attack in Iraq and a VA disability rating decision granting him benefits for tinnitus and post-concussion headaches.
8. Army Regulation 600-8-22 (Military Awards), paragraph 2-8 provides that Purple Heart is awarded to an individual who is wounded in action or as a result of enemy action against an enemy of the United States, the armed force of a foreign country which is or has been engaged, or while serving with a friendly foreign forces against an opposing force even though the U.S. is not engaged. 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.
DISCUSSION AND CONCLUSIONS:
1. The applicant is shown to have suffered a wound as a result of enemy action that required in-medical treatment and that medical treatment is a matter of official record.
2. Therefore, the applicant is entitled to award of the Purple Heart. He should be properly awarded this medal and the award should be added to his DD Form 214.
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 a recommendation for relief. 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 and including an entry on his DD Form 214 for the period 20 November 2005 listing this award.
_______ _ 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) AR20140015266
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ABCMR Record of Proceedings (cont) AR20140015266
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