IN THE CASE OF:  

		BOARD DATE:  	  27 August 2015

		DOCKET NUMBER:  AR20150000465 


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 a correction to his DD Form 214 (Certificate of Release or Discharge from Active Duty) to show he received the Purple Heart (PH).

2.  The applicant states, in effect, that:

   a.  He was injured by an enemy rocket in Bostick, Afghanistan.
   
   b.  He was recommended for the PH twice, once by a brigadier general and the second time by a major general; however, it was denied by the U.S. Army Human Resource Command (HRC).
   
   c.  A medic who was with him at the time wrote in the applicant’s medical record that he dove away from the rocket and it was the dive that injured his foot, not the mortar.  However, the applicant claims he did not dive, but was thrown and injured his foot.
   
   d.   The U.S. Army Human Resources Command (HRC) disapproved his request because they stated that it was an accident and it was not caused by enemy action.  In addition, he states he suffered a concussion from this incident but was not given a military acute concussion evaluation (MACE) test or any examination when the injury occurred.



3.  The applicant provides:

* A self-authored statement
* A picture of his vehicle awaiting mission
* A photo of the rocket crater three days after the incident
* A photo of the site of where he was standing in Kunar Province when the rocket hit
* A photo of his injured foot
* A picture of himself in a medical boot 30 days after the incident

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 had prior Army National Guard Service.  On 4 September 2008, he enlisted in the Regular Army.  After initial training, he was awarded military occupational specialty 25U (Signal Support Systems Specialist).  The highest rank/grade he attained was sergeant (SGT)/E-5. 

3.  On 5 March 2010, the applicant received Orders 064-301 to the 1st Infantry Division, 32nd Calvary in Afghanistan.  

4.  On 15 April 2011, the applicant was involved in a mortar attack in Bostick, Afghanistan.  While inspecting his vehicle, an enemy 107mm rocket landed approximately 15-20 meters away.  During the attack, the applicant suffered a broken bone in his right foot.  

5.  A DA Form 1156 (Casualty Feeder Card) was completed by the applicant that documented a hostile casualty which was inflicted by enemy forces due to a mortar attack.  However, it was never signed or approved by his commander.

6.  Two days later, the applicant was seen by medical and a Standard Form (SF) 600 dated 17 April 2011, stated “Patient states he dove when a rocket landed 20 meters from him on 15 April 2011…and [he] slammed his right foot on the ground,” causing his big right toe to be injured.

7.  DA Forms 2823 (Sworn Statements) completed by members of the applicant’s unit confirm the he was injured by an enemy mortar in Afghanistan. He was violently thrown to the ground and limped away to gain cover.  

8.  On 27 July 2012, the applicant submitted a DA Form 4187 (Personnel Action) for a PH for injuries sustained on 15 April 2011 while assigned to Troop HHT, Aerial Reaction Force Platoon for the 1st Infantry Division, 32nd Calvary in Bostick, Afghanistan in support of Operation Enduring Freedom.  

9.  On 3 February 2012, during a follow-up appointment, the applicant’s medical records show he was seen at radiology for his toe at Fort Campbell, KY on 
18 January 2012.  The medical report states, “no fracture or dislocation of the right foot is seen.”

10.  The initial recommendation for the PH was never processed, and on 
28 May 2013, his command submitted another DA Form 4187 stating “the Soldier’s report to medical staff 2 days after the incident [was] that he injured his toe while diving for cover.  There is no report of being thrown or knocked down by the blast.  CO [commanding officer] did not sign the [casualty] feeder card.” 

11.  On 10 December 2013, HRC denied award of the PH to the applicant.  They stated “[his] injury was an accident not directly caused by enemy actions; therefore, this injury does not meet the criteria for award of the Purple Heart.”

12.  The applicant states that he did not appeal the decision for the PH because it did not fully matter to him at the time.  His career in the Army was over since he was found medically unfit for further service and part of the reason was his foot injury.  His wife convinced him to resubmit for a PH because it was an injustice that needed to be corrected.  

13.  His records do not contain orders awarding him the Purple Heart.

14.  On 3 March 2014, the applicant was transferred to the temporary disability retired list (TDRL) due to post-traumatic stress disorder (PTSD), traumatic brain injury with migraine headaches, residual foot pain, lumbar intervertebral disc syndrome with thoracolumbar degenerative arthritis, and thoracic scoliosis.

15.  Army Regulation 600-8-22 (Military Awards) provides that the PH is awarded for a wound sustained as a result of hostile action.  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.  In addition, it states in:

   a.  Paragraph 8(f), when contemplating an award of this decoration, 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 sole justification for award.
   
   b.  Paragraph 8(i), it is not intended that such a strict interpretation of the requirement for the wound or injury to be caused by direct result of hostile action be taken that it would preclude the award being made to deserving personnel. Commanders must also take into consideration the circumstances surrounding an injury, even if it appears to meet the criteria.

DISCUSSION AND CONCLUSIONS:

The applicant’s request for correction of his records to add the PH was carefully considered and was found to have merit.  Based on the criteria to be awarded the PH, the wound or injury for which the award is made must have been sustained as a result of hostile action, the wound must have required treatment by medical personnel, and record of the medical treatment for the wound or injury sustained in action must have been made a matter of official record.  The applicant has met the criteria to be awarded the PH. 

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 him the PH for the injury he incurred on 15 April 2011 and adding the PH to item 13 of his DD Form 214.


                                                                        ___________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)                                         AR20140005986



3


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1

ABCMR Record of Proceedings (cont)                                         AR20150000465



5


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1