BOARD DATE:	  25 August 2015

		DOCKET NUMBER:  AR20150001149 


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 mother of the deceased former service member (FSM), requests correction of his records to show award of the Purple Heart and the Combat Action Badge.

2.  The applicant states that her son died in an action with an opposing armed force of a foreign country in which the Armed Forces of the United States are or have been engaged.

   a.  The vehicle that her son was in was stopped due to an enemy placed improvised explosive device and he was performing his duty until he could no longer survive.

   b.  She travelled to see her son before he passed away, but he never regained consciousness.  The Purple Heart and the Combat Action Badge were given to her and she was promised that the orders for the awards would be sent to her at her home.  She never received the orders and when she asked about them, she was informed that her son was never awarded the decorations.  She adds that she has attempted to resolve this error through her congressman.

   c.  She requests the Army honor her late son's memory and service by granting the two awards.

3.  The applicant provides copies of the FSM's memorial ceremony program, certificate of death, an investigation report, the Purple Heart award criteria, and a 
U.S. Army Human Resources Command letter.
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 FSM enlisted and entered active duty in the Regular Army on 19 January 2006.  He was awarded military occupational specialty 19K (M1 Armor Crewman) and he was promoted to private first class/pay grade E-3.

3.  The FSM was assigned to Company C, 1st Battalion, 30th Infantry Regiment,
2nd Brigade Combat Team.  He deployed overseas to Iraq in support of Operation Iraqi Freedom on 7 May 2007.

4.  An Office of the Armed Forces Regional Medical Examiner, Landstuhl Regional Medical Center (LRMC), Landstuhl, Germany, Final Autopsy Report, performed at 0900 hours, 26 June 2007, shows the FSM was admitted to the 28th Combat Support Hospital, Baghdad, on 18 June 2007, for heat injury.  He was found in a field minimally responsive (exact circumstances unknown) and medical treatment was administered for presumed heat stroke.  He was air evacuated to LRMC and pronounced dead at 1921 hours, 24 June 2007.  It shows the manner of death, in the opinion of the pathologist, was accident.

5.  A DD Form 2064 (Certificate of Death) pertaining to the FSM, prepared by the pathologist on 26 June 2007, shows in the:

* Medical Statement section:

* Disease or Condition Directly Leading to Death:  Heat Injury
* Autopsy Performed:  Yes
* Mode of Death:  Accident
* Date of Death:  1921 hours, 24 June 2007
* Place of Death:  Landstuhl, Germany


6.  A DD Form 1300 (Report of Casualty) pertaining to the FSM, prepared on 
7 August 2007, shows in:

* item 4 (Casualty Information):

* block a (Type):  Nonhostile
* block b (Status):  Deceased
* block c (Category):  Accident
* block d (Date of Casualty):  24 June 2007
* block e (Place of Casualty):  Landstuhl, Germany
* block f (Circumstances):  Accident:  Heat Injury, per DD Form 2064

* item 7 (Interested Persons/Remarks):  Conflict:  War on Terrorism/ Operation Iraqi Freedom

7.  Headquarters, U.S. Army Human Resources Command, Alexandria, VA, Permanent Orders 177-18, dated 26 June 2007, and a DA Form 4980-5-A (Bronze Star Medal Certificate) show the Bronze Star Medal was awarded to the FSM (posthumously) for meritorious service during Operation Iraqi Freedom from 7 May 2007 to 24 June 2007.

8.  Headquarters, Multi-National Corps-Iraq, Baghdad, Iraq, Permanent Orders 177-010, dated 26 June 2007, show the Army Good Conduct Medal (1st Award) was awarded to the FSM (posthumously) for exemplary behavior, efficiency, and fidelity in active federal military service from 19 January 2006 to 24 June 2007.

9.  A review of the FSM's military personnel records failed to reveal orders or other evidence that he was awarded the Purple Heart or Combat Action Badge.

10.  In support of the application the applicant provides the following documents.

   a.  A copy of the Memorial Ceremony program in honor of the FSM conducted by 1st Battalion, 30th Infantry Regiment, Forward Operating Base (FOB) FALCON, Baghdad, Iraq, on 2 July 2007.  It shows, in pertinent part, the FSM's "awards and decorations include the Bronze Star [Medal], Purple Heart, Combat Action Badge, and National Defense Service Medal."

   b.  A 29th Brigade Support Battalion, 2nd Brigade, 3rd Infantry Division, 
FOB KALSU, Iraq, Memorandum for Record, dated 1 July 2007, subject:  Army Regulation 15-6 [Procedures for Investigating Officers and Boards of Officers] investigation into the facts and circumstances surrounding the death of [FSM] by heat casualty.  It shows, in pertinent part, on 18 June 2007, the FSM was a driver for an M1 Abrams Main Battle Tank and participating in the recovery of an 
M2 Bradley Fighting Vehicle in over 110 degree temperature with enemy contact possible.  The FSM had been in the tank in the driver's hatch about two and one half hours when he joined the other Soldiers to repair the track that the FSM's tank had thrown.  After repairing the track (about two hours), the FSM showed signs of confusion in performing his tasks.  The other Soldiers sat him down and gave him water.  The FSM lost consciousness and aid was administered.  The FSM was being evacuated when he had a seizure.  His condition continued to decline (presumed heat stroke) prior to arriving at the Battalion Aid Station.  His prognosis was grave and the FSM was air evacuated to LRMC where he died on 24 June 2007.

   c.  Headquarters, U.S. Army Human Resources Command, Alexandria, VA, memorandum, dated 1 October 2014, that shows the Chief, Soldier Programs and Services Division, informed the applicant, "Regrettably, we are unable to award the Combat Action Badge and the Purple Heart to your late son, [the FSM].  According to Army medical personnel his death was due to a non-battle injury not related to enemy action, both awards require engagement by the enemy or requirement to engage the enemy."  The applicant was advised she could appeal to the ABCMR.

11.  Army Regulation 600-8-22 (Military Awards) provides policy, criteria, and administrative instructions concerning military awards and decorations.

   a.  The Purple Heart is awarded to members of the Armed Forces of the United States who have been wounded or killed in action against an enemy or 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.  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 award.  Substantiating evidence must be provided to verify that the wound was the result of hostile action.

       (1)  A wound is defined as an injury to any part of the body from an outside force or agent.  A physical lesion is not required; however, the wound for which the award is made must have required treatment by medical personnel and the medical treatment must have been made a matter of official record.

       (2)  The regulation provides examples of injuries or wounds which clearly do not justify award of the Purple Heart that, in pertinent part, includes injuries caused by accidents or heat stroke.
   
   b.  The requirements for award of the Combat Action Badge are branch and military occupational specialty immaterial.  Assignment to a combat arms unit or a unit organized to conduct close or offensive combat operations or performing offensive combat operations is not required to qualify for the Combat Action Badge.  However, it is not intended to award the Combat Action Badge to all Soldiers who serve in a combat zone or imminent danger area.  The Soldier must be performing assigned duties in an area where hostile fire pay or imminent danger pay is authorized.  The Soldier must be personally present and actively engaging or being engaged by the enemy and performing satisfactorily in accordance with the prescribed rules of engagement.  The Soldier must not be assigned or attached to a unit that would qualify the Soldier for the Combat Infantryman Badge or the Combat Medical Badge.  Award of the Combat Action Badge is authorized from 18 September 2001 to a date to be determined.

   c.  For all personal decorations, approval by the award approving authority and announcement in orders are required.

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends that the records of her late son should be corrected to show award of the Purple Heart and the Combat Action Badge because he died in an action with an opposing armed force of a foreign country in which the Armed Forces of the United States was engaged and the awards were presented to her.

2.  Records show the FSM was serving in Iraq in support of Operation Iraqi Freedom on 18 June 2007.  On that date he was a driver of an M1 Abrams Main Battle Tank and participating in the recovery of an M2 Bradley Fighting Vehicle.  

   a.  The temperature was in excess of 110 degrees and the recovery operation was taking a prolonged period of time.  The FSM showed signs of heat exhaustion followed by heat stroke.  He was treated for his symptoms and evacuated to a medical treatment facility.  He was then air evacuated to LRMC, Germany, where he died on 24 June 2007.

   b.  The Final Autopsy Report shows, in the opinion of the pathologist, the manner of the FSM's death was accident.  The Certificate of Death shows the condition that led to the FSM's death was heat injury and the mode of death was accident.

3.  The evidence of record shows for award of the Purple Heart, 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 award.  Substantiating evidence must verify that the wound or injury was the result of hostile action.  

   a.  There is no evidence of record that shows the FSM's injury was the result of hostile action.

   b.  The Military Awards regulation provides examples of injuries or wounds that clearly do not justify award of the Purple Heart and specifically lists injuries caused by accidents or heat stroke.

   c.  The Military Awards regulation also shows that for award of the Combat Action Badge a Soldier must actively engage the enemy or be engaged by the enemy, and perform satisfactorily in accordance with the prescribed rules of engagement.  The evidence of record shows that during the incident under review enemy contact possible; however, there is no evidence of actual engagement with or by the enemy.  Thus, there is insufficient evidence to support award of the Combat Action Badge.
 
   d.  While the Board does not dispute the sincerity of the applicant's claim that she was presented the Purple Heart and the Combat Action Badge, there is insufficient documentary evidence to corroborate that the awards were approved by the appropriate award authority and/or officially announced in orders.

   e.  Regrettably, the evidence of record fails to support a claim to the Purple Heart or the Combat Action Badge.

4.  Therefore, in view of all of the foregoing, there is an insufficient basis for granting the requested relief.

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 former service member in service to our Nation.  The applicant and all Americans should be justifiably proud of his 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)                                         AR20150001149



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