IN THE CASE OF:	   

		BOARD DATE:	  29 October 2015

		DOCKET NUMBER:  AR20140017278 


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, the spouse of a deceased former service member (FSM), requests correction of her husband's DD Form 1300 (Report of Casualty) to show the type of casualty as "hostile" instead of "non-hostile," so he may be posthumously awarded the Purple Heart.  She also requests a personal appearance before the Board.

2.  The applicant states:

	a.  The Government states the FSM was not killed by the enemy.  Charges brought against a fellow Soldier for the FSM's murder resulted in an acquittal of that Soldier; therefore, the Government failed to substantiate its claim that anyone other than the "enemy" is responsible for the FSM's death.  Should the Government stand by its position, any individual who willfully inflicts death upon an American Soldier while in a combat zone meets the definition of enemy.

	b.  Her husband was killed in a combat zone.  The weapon used to kill him and the other Soldier was a claymore mine, the front of which reads, "Front Toward Enemy."  

	c.  Clearly, the perpetrator believed himself an enemy of the two American officers when he deployed the claymore mine with the intent to kill.  In her opinion, the perpetrator successfully aided and abetted the enemy.  

	d.  For 9 years she has struggled to see her husband's sacrifice and service duly honored by our country.  Like the case at Fort Hood, Texas, her former husband’s case warrants careful consideration.  Like those victims, her former husband deserves to be represented before this Board.

	e.  Any Soldier who willfully conspires to harm or bears arms against another Soldier should be declared an enemy of our Nation.  She proposes the term "unconventional enemy" be applied to these individuals.  For example, despite several attempts by hostile Iraqi forces, no American casualties occurred on Forward Operating Base (FOB) Danger during the Iraq war, other than her husband and his former company commander.  Application of this term and recognition of an enemy status, therefore, alters the manner of death from non-hostile to hostile.  Thus her former husband’s manner of death would meet the criteria for Purple Heart eligibility.

	f.  In her particular case the Government failed to convict the accused.  Therefore, there is no merit in its argument someone other than a known or conventional enemy placed and detonated the claymore mine that killed her husband and his company commander.  

3.  The applicant provides:

* DD Form 1300
* National Guard Bureau (NGB) Form 22 (Report of Separation and Record of Service)
* email from the Military Awards Branch, U.S. Army Human Resources Command (HRC), dated 21 July 2009
* summarized record of trial and accompanying papers 
* the FSM's final autopsy examination report
* statement of support from Lieutenant Colonel (LTC) P, U.S. Air Force (retired)
* 16 third-party email statements of support 
* New York Post article, titled Anguish at Soldier Dishonor, dated 9 May 2010
* document addressing the Fort Hood, Texas shooting

CONSIDERATION OF EVIDENCE:

1.  The FSM served in the Regular Army from 21 July 1988 to 13 October 1989.  He was appointed as a second lieutenant in the U.S. Army Reserves and New York Army National Guard on 1 July 2000.  He was promoted to first lieutenant on 28 September 2004.  

2.  He was mobilized and ordered to active duty in support of Operation Iraqi Freedom on 28 April 2005.  
3.  The FSM's final autopsy examination report indicates that while he was deployed to Iraq, on 8 June 2005, he and another Soldier were sitting at their desks in their living spaces when a claymore-type mine exploded killing both Soldiers.  

4.  The FSM's Report of Casualty shows the type of casualty as "non-hostile" and the category as "homicide."

5.  General Court-Martial Order Number 2, issued by Headquarters, XVIII Airborne Corps on 9 March 2009, shows that U.S. Army Staff Sergeant (SSG) M was charged with premeditated murder of the FSM and another Soldier by means of emplacing and detonating an explosive device outside a room where the FSM was located.  The court-martial order shows the accused was found "not guilty" of the charges.

6.  An email from the Military Awards Branch, HRC, dated 21 July 2009, states the applicant had contacted HRC inquiring about award of the Purple Heart for the FSM.  The Military Awards Branch responded and informed the applicant that the criteria for the Purple Heart required it to be awarded to Soldiers for wounds or injuries received as a direct result of enemy action.  The letter concluded that because the governing Army regulation does not allow issuance of the Purple Heart for injuries incurred as a result of homicide, the FSM is not eligible for the award.

7.  In the processing of this case, an advisory opinion was obtained from the Casualty Support Division, HRC.  The advising official states:

	a.  For the Purple Heart to be considered, the FSM's DD Form 1300 must be corrected to reflect the type of casualty as "hostile" instead of "non-hostile."

	b.  In order to answer the applicant's request to change the type of casualty on the DD Form 1300, the difference between the two casualty categories must be defined.  

	c.  The "hostile casualty" category pertains to a person who is the victim of a terrorist activity or who becomes a casualty "in action," which characterizes the casualty as having been the direct result of hostile action, sustained in combat or relating thereto, or sustained going to or returning from a combat mission provided that the occurrence was directly related to hostile action.  Included are persons killed or wounded mistakenly or accidentally by friendly fire directed at a hostile force or what is thought to be a hostile force. However, not to be considered as sustained in action and not to be interpreted as hostile casualties, are injuries due to elements, self-inflicted wounds and, except in unusual cases, wounds or death inflicted by a friendly force while the individual is in absent without leave, deserter, or dropped from the rolls status or is voluntarily absent from a place of duty.

	d.  The "non-hostile casualty" category pertains to a person who becomes a casualty due to circumstances not directly attributable to hostile action or terrorist activity.  For example, casualties due to the elements, self-inflicted wounds, and combat fatigue are non-hostile casualties.

	e.  The circumstances related to the FSM's death are as follows:

(7 June 2005) -Soldier was at a desk at FOB Danger in Tikrit when a claymore mine detonated. (25 June 2005) - Murder charges have been filed against [SSG M] for the murder of this Soldier.  [SSG M] is in military pre-trial confinement and the investigation is in progress.  After further investigation, it was found that a claymore mine type device was probably placed on a cement window ledge inside a metal grate, which was over the window, as shown by the blast pattern.  Damage consistent with a ball bearing spread of a claymore explosion, and other evidence including plastic pieces of the shell, and legs to the claymore mine were found in the debris field.  Also found following the investigation were two grenade spoons, which would corroborate witness accounts of hearing two smaller explosions, initially believed to be part of a mortar attack.  After checking for significant activity involving radar acquisitions of mortars the night of the incident, there were no acquisitions found.

	f.  After a thorough investigation there were no enemy personnel involved in the FSM's death; therefore, HRC cannot change the FSM casualty category to reflect "hostile."  The Purple Heart is awarded to members of the armed forces of the United States who are wounded by an instrument of war in the hands of the enemy; and posthumously awarded to the next of kin in the name of those who are killed in action or die of wounds received in action.

8.  The advisory opinion was provided to the applicant to afford her the opportunity to submit comments and/or a rebuttal.  No response was received.

9.  There is no available evidence that indicates the FSM's death resulted from hostile actions perpetrated by an enemy of the United States.  

10.  The applicant provided a statement of support from LTC P, U.S. Air Force (retired), in which LTC P states the following:

	a.  The denial of the Purple Heart is a travesty.  It goes against all we stand for in the U.S. military, and he is frankly ashamed that it was denied.

	b.  The FSM was killed in a combat zone in a completely unexpected fashion. While many (even most) Purple Heart recipients were at least aware of impending danger, the FSM had virtually no opportunity to fight for his life.
	
   c.  If, as the court-martial concluded, the accused was not guilty of murder, it would logically follow that someone else was responsible.  The location was in Iraq and the troops in this command were subject to mortar attacks.  Isn't it conceivable, and even probable, that the FSM's attacker was an enemy combatant?  The Army cannot have it both ways; it was either murder by a "friendly" (though not according to the court martial) or an attack by an enemy perpetrator or force.

	d.  A common definition of "enemy" is:  "One who seeks to disrupt an opponent's forces and actions, often by wounding or killing the opponent's personnel."  Therefore, it does not matter who killed the FSM.  The actions that evening had a major negative impact on the unit's readiness and morale.  In his opinion those actions ultimately proved beneficial to the overall enemy.

	e.  Pat Tillman was awarded the Purple Heart, even though his death was caused by friendly fire.  If this was an accident, it would be even less worthy of the award, based on the Army's current position.  He would argue that presentation of the Purple Heart in both circumstances is valid.

	f.  The FSM was an Army National Guardsman and a high school teacher.  He proudly put on the uniform of this Nation and deployed to a war zone.  He was willing to put his life on the line to serve his country, and tragically, lost his life doing exactly that.  He urges the Board to not compound this tragedy by failing to correct the misguided efforts of some who profess to follow the letter of the regulation, while ignoring the overall intent, which is to honor those who have made a grave sacrifice while serving their country in a combat zone.

	g.  Presenting this award to the FSM's family does nothing to diminish its value to others who have received it.  Other recipients agree that it is deserved in this case, some of whom have offered their own medals to the FSM's family.  Please listen to them, and reverse the decision to decline this honor to the FSM.

11.  The applicant provided:

	a.  sixteen (16) third-party email statements of support that strongly recommend awarding the Purple Heart to the FSM; 
	b.  a New York Post article titled, Anguish at Soldier Dishonor, dated 9 May 2010, addressing the incident in which the FSM died and the applicant's attempts to receive the Purple Heart posthumously on behalf of the FSM; and 

	c.  a document addressing the Fort Hood, TX, shooting and the granting of the Purple Heart for the victims of that incident by the U.S. Congress.

12.  Army Regulation 600-8-22 (Military Awards) states the Purple Heart is awarded to any member who, while serving under competent authority in any capacity with one of the armed services, has been wounded or killed or who has died or may hereafter die after being wounded:

	a.  in any action against an enemy of the United States;
      
	b.  in any action with an opposing armed force of a foreign country in which the Armed Forces of the United States are or have been engaged;

	c.  while serving with friendly foreign forces engaged in an armed conflict against an opposing armed force in which the United States is not a belligerent party;

	d.  as a result of an act of any such enemy of opposing armed forces;

	e.  as a result of an act of any hostile foreign force;

	f.  after 28 March 1973, as a result of an international terrorist attack against the United States or a foreign nation friendly to the United States, recognized as such an attack by the Secretary of the Army, or jointly by the Secretaries of the separate armed services concerned if persons from more than one service are wounded in the attack;

	g.  after 28 March 1973, as a result of military operations while serving outside the territory of the United States as part of a peacekeeping force; or

	h.  military members killed or wounded by friendly fire.
      
13.  Department of Defense (DOD) Manual 1348.33 – Volume 3, dated 23 November 2010, (subject:  Manual of Military Decorations and Awards:  DOD-Wide Performance and Valor Awards; Foreign Awards; Military Awards to Foreign Personnel and U.S. Public Health Service Officers; and Miscellaneous Information) implements the DOD Military Awards Program.  In pertinent part, the Purple Heart is awarded to any member of the U.S. Armed Forces who is killed or wounded in action as the result of action by friendly weapon fire while directly engaged in armed conflict, other than as a result of an act of an enemy of the United States, unless (in the case of a wound) the wound is the result of willful misconduct of the member.  After March 28, 1973, as a result of an international terrorist attack against the United States or a foreign nation friendly to the United States, recognized as such an attack for purposes of award of the Purple Heart by the Secretary of the Military Department concerned, or jointly by the Secretaries of the Military Departments concerned if members from more than one Military Department are wounded in the attack. 

14.  Executive Order 11016, 25 April 1962, provides for award of the Purple Heart as follows:

   a.  in any action against any enemy of the United States;
   
   b.  in any action with an opposing armed force of a foreign country; 
   
   c.  while serving with friendly foreign forces engaged in armed conflict against an opposing armed force; 
   
   d.  as the result of an act of any such enemy or opposing armed force, or 
   
   e.  as a result of any act of any hostile foreign force.

15.  Title 50, U.S. Code (War and National Defense), section 2204 (Definitions) defines the term "enemy" as any country, government, group, or person that has been engaged in hostilities, whether or not lawfully authorized, with the United States.

16.  Title 10, U.S. Code, section 1129 (Purple Heart:  members killed or wounded in action by friendly fire) provides that a member described in this subsection is a member who is killed or wounded in action by weapon fire while directly engaged in armed conflict, other than as the result of an act of an enemy of the United States, unless (in the case of a wound) the wound is the result of willful misconduct of the member.  For purposes of the award of the Purple Heart, the Secretary concerned shall treat a member of the armed forces in the same manner as a member who is killed or wounded in action as the result of an act of an enemy of the United States.

17.  Title 10, U.S. Code, section 1129a, as amended by the Carl Levin and Howard P. "Buck" McKeon National Defense Authorization Act for Fiscal Year 2015, Section 571, states with regard to award of the Purple Heart for Servicemembers killed or wounded in attacks by foreign terrorist organizations, the Secretary of the Army will treat a Servicemember of the Armed Forces who is killed or wounded as a result of an international terrorist attack against the United States as stated in paragraph 2-8b(6).  A member described in this subparagraph is a member on active duty who was killed or wounded in an attack by a foreign terrorist organization in circumstances where the death or wound is the result of an attack targeted on the Servicemember due to such Servicemember’s status as a member of the Armed Forces.  An attack by an individual or entity will be considered to be an attack by a foreign terrorist organization if:

	a.  the individual or entity was in communication with the foreign terrorist organization before the attack;

	b.  the attack was inspired or motivated by the foreign terrorist organization.

18.  Army Regulation 15-185 (Army Board for Correction of Military Records (ABCMR)), paragraph 2-11, provides that applicants do not have a right to a hearing before the ABCMR.  The Director or the ABCMR may grant a formal hearing whenever justice requires.

DISCUSSION AND CONCLUSIONS:

1.  The applicant's contention that the FSM's record should be corrected to show entitlement to the Purple Heart has been carefully considered.  

2.  The applicant has correctly identified an important issue in this case:  Can the circumstances of her husband’s death be reasonably construed as having been the result of enemy action?  The concept of "enemy action" was, and remains, an essential criterion for the Purple Heart.  The President of the United States authorized the military services to award the Purple Heart to individuals injured or killed on behalf of their country, but only if the wounds were inflicted as defined by Executive Order 11016.

3.  Congress later expanded the circumstantial categories under which the Purple Heart may be awarded.  As a result, so-called "friendly fire" incidents can today justify the award if a Servicemember is killed or wounded in action by other than enemy fire while directly engaged in armed conflict.  Similarly, a Servicemember on active duty killed in an attack by a foreign terrorist organization may be awarded the Purple Heart, but only in circumstances where the death resulted from of an attack targeted on the Soldier due to the Soldier’s status as a member of the armed forces.  Such an attack is deemed "an attack by a foreign terrorist" if the attacker "was in communication with the foreign terrorist organization before the attack" and "the attack was inspired or motivated by the foreign terrorist organization."  Although the Department of Defense (DOD) and the Department of the Army have codified these concepts in their respective regulations, the core requirement of "action against an enemy," "armed conflict against an opposing force," or "an act of any such enemy or opposing armed force" originated with the President and Congress.

4.  There is substantial evidence in the record that an Army Soldier perpetrated, either premeditatedly or with some lesser degree of culpability, the weapons-based attack on the applicant's husband.  Evidence supporting this inference includes documents indicating the Soldier was tried (although acquitted) of "emplacing and detonating an explosive device outside a room where First Lieutenant L.E.A. was located"; evidence submitted by applicant that the Soldier submitted an offer to plead guilty prior to trial; the medical examiner’s report which states the cause of death as homicide rather than killed in action; and the absence of any radar acquisitions of incoming enemy mortar rounds at the time of the attack.  Thus, the record strongly indicates that a fellow Soldier was responsible for unleashing the deadly force that killed the applicant’s husband.

5.  The manner in which Congress acted with regard to "friendly fire" incidents is instructive in this case.  Prior to 1993, the fact that an American Soldier was responsible for another Soldier’s death might have precluded the awarding of a Purple Heart.  But Congress in 1993 clarified the law such that fratricidal "Servicemember on Servicemember" violence can today substantiate awarding the Purple Heart.  But Congress specified only two specific circumstances in which a Purple Heart is warranted for fratricidal incidents: death or wounds resulting from friendly fire incidents, and those inflicted by an American Servicemember acting as an agent of a terrorist organization.

6.  The applicant cited awarding the Purple Heart to Corporal Pat Tillman in support of her application.  She is correct that Corporal Tillman’s "friendly fire" situation was one in which his command determined a Purple Heart award was justified.  As previously discussed, Congress clarified the circumstances under which a Purple Heart might be appropriate even though the lethal or wounding weapon fire is "other than as the result of an act of an enemy of the United States."  According to Congress, a Servicemember wounded in such circumstances will be deemed as having been killed or wounded in action "as the result of an act of an enemy of the United States" but only if the wounded or deceased Soldier had been "killed or wounded in action by weapon fire while directly engaged in armed conflict."  It therefore appears that Congress contemplated situations in which Servicemembers willfully, negligently, or innocently killed or injured fellow Servicemembers on the battlefield.  It is equally clear that Congress deemed it appropriate to limit Purple Heart awards exclusively to only those situations in which the victim endured other-than-enemy weapon fire "while directly engaged in armed conflict." The evidence in this case, however, does not support an inference that the applicant’s husband was directly engaged in armed conflict at the time of his tragic death.  He was in his living quarters at a forward operating base presumably during a period of rest from his work day.  It is therefore difficult to reasonably conclude that the applicant’s husband was killed by "friendly fire" as that phrase is defined by Congress.

7.  In 2014, Congress again clarified situations in which fratricidal death might justify awarding the Purple Heart.  The applicant is again correct when she cites the Fort Hood, Texas shooting as an impetus for Congressional action.  Due to that tragedy, Congress passed a statute that directed the service Secretaries to expand Purple Heart consideration to instances where a perpetrator, whether or not a fellow Servicemember, initiates an attack on behalf of a foreign terrorist organization.  An attack is considered a foreign terrorist attack if the perpetrator "was in communication with the foreign terrorist organization before the attack" and "the attack was inspired or motivated by the foreign terrorist organization."  Thus, an attack by a fellow Servicemember, even in non-combat situations, could warrant a Purple Heart if some connection is established between the perpetrating Servicemember and a foreign terrorist organization.  The record in the applicant’s case, however, discloses no such connection.  Instead, the record indicates that the perpetrator who killed her husband had not communicated with foreign terrorists and was motivated by a personal animus toward the other Soldier killed in the attack.  Consequently, and unfortunately, it appears Congress' foreign terrorism statute does not afford a viable way in which a Purple Heart could be awarded to the applicant’s husband posthumously.

8.  Department of the Army and DOD regulations reflect Congressional and Presidential intent in this regard.  DOD authorizes a Purple Heart for Servicemembers killed or wounded in action as the result of action by friendly weapon fire while directly engaged in armed conflict, other than as a result of an act of an enemy of the United States.  The Army’s regulation on this topic is virtually identical.  Both regulations’ friendly-fire provisions cite specifically to Title 10, U.S. Code, section1129, the statute discussed previously which authorizes the award for combat-related friendly-fire incidents.  These same two regulations likewise contain provisions that mirror the federal statute previously discussed regarding attacks by foreign terrorist organizations.  

9.  The applicant correctly points out that her husband was killed in a combat zone.  But the statutes and regulations cited above make clear that Servicemember combat zone deaths do not automatically fall within the criteria for the Purple Heart award.  She also asserts that the perpetrator should be considered an enemy co-conspirator because, by killing her husband and his company commander, the perpetrator furthered the aims of America’s enemies.  The same can be said, however, about any homicidal incidents (whether intentional or accidental) that occur in deployed areas.  Furthermore, there is no evidence that the perpetrator conspired with or communicated with the enemy before initiating his attack.  Thus, these asserted reasons do not match the particular criteria necessary to favorably consider awarding the Purple Heart.

10.  Lastly, the Board respectfully must disagree with the applicant’s assertion that the perpetrator’s acquittal necessarily forecloses the possibility that anyone other than an enemy combatant launched the attack against her husband.  An acquittal on premediated murder charges does not establish that the accused perpetrator did not carry out the heinous act.  The acquittal merely indicates that the court-martial military panel (jury) believed the prosecution failed to prove beyond a reasonable doubt at least one of the several essential elements of premeditated murder.  Despite the acquittal, the greater weight of evidence, as discussed more fully above, indicates that the accused perpetrator was more likely than not responsible for her husband’s death.

11.  The applicant’s husband, and by extension the applicant herself, made the ultimate sacrifice on behalf of their country.  Unfortunately, however, the Purple Heart criteria do not coincide with the manner in which her husband died. Granting the applicant’s request would therefore require the Board to deliberately disregard, and to consciously contravene, the criteria that Congress, the President, DOD, and the Department of the Army have established for this particular award. 

12.  The applicant also requested to appear before the board and a personal appearance hearing was carefully considered.  However, by regulation, an applicant is not entitled to a hearing before the Board.  A formal hearing may be authorized by the Board or by the ABCMR Director whenever justice requires.  In this case, the evidence of record and independent evidence provided by the applicant are sufficient to render a fair and equitable decision at this time.  As a result, a personal appearance hearing is not necessary to serve the interest of equity and justice in this case.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

___x____  ___x____  ____x____  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

1.  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.

2.  The Board wants the applicant and all others concerned to know that this action in no way diminishes the sacrifices made by the FSM in service to our Nation.  The applicant and all Americans should be justifiably proud of the FSM's service in arms.



      ___________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)                                         AR20140017278



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ABCMR Record of Proceedings (cont)                                         AR20140017278



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