MEMORANDUM OF CONSIDERATION

		IN THE CASE OF:     

		BOARD DATE:           25 September 2003  
		DOCKET NUMBER:  AR2003088670

	I certify that hereinafter is recorded the record of consideration of the Army Board for Correction of Military Records in the case of the above-named individual.

	Mr. Carl W. S. Chun		Director	
	Mr. Joseph A. Adriance		Analyst	

  The following members, a quorum, were present:

	Mr. John N. Slone		Chairperson	
	Ms. Regan K. Smith		Member	
	Mr. Linda D. Simmons 		Member	

	The Board, established pursuant to authority contained in 10 U.S.C. 1552, convened at the call of the Chairperson on the above date.  In accordance with Army Regulation 15-185, the application and the available military records pertinent to the corrective action requested were reviewed to determine whether to authorize a formal hearing, recommend that the records be corrected without a formal hearing, or to deny the application without a formal hearing if it is determined that insufficient relevant evidence has been presented to demonstrate the existence of probable material error or injustice.

	The applicant requests correction of military records as stated in the application to the Board and as restated herein.

	The Board considered the following evidence:

	Exhibit A -  Application for correction of military 
                             records
	Exhibit B -  Military Personnel Records (including
	                  advisory opinion, if any)

APPLICANT REQUESTS:  In effect, that he be awarded the Purple Heart (PH).

APPLICANT STATES:  In effect, that he was injured in the Gulf War and never received the PH.  He states that this injury was the reason for his separation.  In support of his application, he provides copies of medical treatment records and evaluation documents from his Medical Evaluation Board (MEB).  

EVIDENCE OF RECORD:  The applicant's military records show:

He served on active duty from 23 October 1990 until 10 June 1993, at which time he was honorably discharged.  He was trained and served in military occupational specialty (MOS) 13B (Cannon Crewmember) and the highest rank he attained while serving on active duty was specialist (SPC).  

The applicant’s Personnel Qualification Record (DA Form 2-1) confirms that he served in Saudi Arabia for a little over two months from 16 February through 
24 April 1991.  

The medical history outlined in the medical record report (OF 275), prepared during the MEB proceedings conducted on the applicant contains his statement on how his injury was incurred.  It indicates he awoke one morning in April 1991 with a stiff neck and when the condition did not improve over the next few days, he was referred for a medical evaluation.  The MEB record contains no indication that the applicant’s injury or illness was the direct result of or related to action by a hostile force. 

The MEB diagnosed the applicant as having “torticollis, functional, unfitting in accordance with Army Regulation 40-501” and it recommended that he be referred to a Physical Evaluation Board (PEB).  

The PEB proceedings (DA Form 199) on file confirm that the applicant’s condition was evaluated on 15 April 1993, and that the PEB found him physically unfit for further service.  The PEB recommended a combined physical disability rating of 10% and that the applicant separated with disability severance pay.  On 
10 June 1993, the applicant was honorably discharged.

The separation document issued to the applicant on the date of his separation, 10 June 1993, shows that at that time, he held the rank of SPC and he had completed a total of 2 years, 7 months, and 18 days of active military service.  

Item 13 (Decorations, Medals, Badges, Citations and Campaign Ribbons Awarded or Authorized) of the applicant’s DD Form 214 shows that he earned the following awards during his tenure on active duty:  Army Service Ribbon; Sharpshooter Marksmanship Qualification Badge with Rifle and Hand Grenade Bars; National Defense Service Medal; Southwest Asia Service Medal with 
2 bronze service stars; and Saudi Arabia Kuwait Liberation Medal.  The applicant authenticated the separation document with his signature in Item 21 (Signature of Member Being Separated).  

Army Regulation 600-8-22 (Military Awards) prescribes Army policy and criteria concerning individual military awards.  Paragraph 2-8 contains the regulatory guidance pertaining to awarding the PH.  It states, in pertinent part, that the PH is awarded to any member of an Armed Forces who, while serving in any capacity with one of the Armed Services after 5 April 1917, has been wounded or killed as a result of hostile action by an enemy.  A wound as an injury to any part of the body from an outside force or agent sustained as a result of enemy action.  

Paragraph 2-8b(5) of the awards regulation provides a list of examples of injuries or wounds which clearly do not qualify for award of the PH.  Included in this list is being wounded or injured a result of accidents not related to or caused by enemy action.  

DISCUSSION:  Considering all the evidence, allegations, and information presented by the applicant, together with the evidence of record, applicable law and regulations, it is concluded:

1.  The Board notes the applicant’s contention that he is entitled to the PH for a back injury he received while serving in the Gulf War.  However, it finds insufficient evidence to support this claim.  

2.  By regulation, in order to support award of the PH the wound or injury on which the award is based must have been the result of enemy action.  The regulation also provides examples of injuries or wounds which clearly do not qualify for award of the PH.  Included in this list are accidental wounds or injuries received that are not related to or caused by enemy action.  

3.  The Board carefully considered the MEB and PEB documentation on file and provided by the applicant, and while these treatment records confirm the applicant suffered a neck injury, they do not show that this injury was directly caused by or related to enemy action.  

4.  The Board also finds no evidence of record showing that the applicant was ever recommended for or awarded the PH at the time, when both the members of his chain of command and medical treatment officials would have been very much aware of the circumstances and events surrounding his injury.  Further, the applicant signed his separation document on 10 June 1993, thereby verifying that the information contained therein was correct at the time the document was prepared and issued.  There is no indication that he raised the PH issue at the time.  

5.  The Board wishes to advise the applicant that it does not question the veracity of his claim or that he was injured while in the performance of his duty during the Gulf War.  However, based on the lack of supporting records and evidence to confirm his injury was the result of enemy action, it concludes that the regulatory burden of proof necessary to support award of the PH has not been satisfied in this case.  

6.  In view of the foregoing, there is no basis for granting the applicant's request.

DETERMINATION:  The applicant has failed to submit sufficient relevant evidence to demonstrate the existence of probable error or injustice.

BOARD VOTE:

_JS__  __LDS___  __RKS           GRANT

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION

		    Carl W. S. Chun
		     Director, Army Board for Correction
      of Military Records

INDEX

CASE ID	AR2003088670	
SUFFIX		
RECON		
DATE BOARDED	2003/09/DD	
TYPE OF DISCHARGE	HD	
DATE OF DISCHARGE	1993/06/10	
DISCHARGE AUTHORITY	AR 635-40	
DISCHARGE REASON	Disability 	
BOARD DECISION	DENY	
REVIEW AUTHORITY		
ISSUES         1.  61	107.0015	
2.		
3.		
4.		
5.		
6.