RECORD OF PROCEEDINGS IN THE CASE OF: BOARD DATE: 5 February 2008 DOCKET NUMBER: AR20070013149 I certify that hereinafter is recorded the true and complete record of the proceedings of the Army Board for Correction of Military Records in the case of the above-named individual. Ms. Catherine C. Mitrano Director Mr. Mohammed R. Elhaj Analyst The following members, a quorum, were present: Mr. Kenneth L. Wright Chairperson Mr. Antonio Uribe Member Mr. Ronald D. Gant Member The Board considered the following evidence: Exhibit A - Application for correction of military records. Exhibit B - Military Personnel Records (including advisory opinion, if any). THE APPLICANT'S REQUEST, STATEMENT, AND EVIDENCE: 1. The applicant requests correction of his DD Form 214 (Certificate of Release or Discharge from Active Duty), dated 28 August 2006 as follows: a. Item 4a (Grade, Rate or Rank) to show sergeant first class (SFC) instead of staff sergeant (SSG) and Item 4b (Pay Grade) to show "E-7" instead of "E-6;” b. Item 12a (Date Entered Active Duty This Period) to show "1986 04 13" instead of "1989 04 05;" c. Item 12c (Net Active Service This Period) be recalculated to show additional active service from 13 April 1986 to 4 May 1989; and d. Item 13 (Decorations, Medals, Badges, Citations and Campaign Ribbons Awarded or Authorized) to show award of the Purple Heart. 2. The applicant did not state a reason for his request. 3. The applicant provides the following additional documentary evidence in support of his application: a. DD Form 214, dated 28 August 2006. b. Enlisted Record Brief, dated 3 November 2003. c. DA Form 2-1 (Personnel Qualification Record). d. DD Form 4 (Enlistment/Reenlistment Document), dated 5 April 1989. e. DA Form 4430-R (Department of the Army Report of Result of Trial), dated 9 December 2005. f. DD Form 2808 (Report of Medical Examination), dated 16 May 2006. g. DA Form 3947 [Medical Evaluation Board (MEB) Proceedings], dated 9 June 2006, and Allied Documents. h. DA Form 199 [Physical Evaluation Board (PEB) Proceedings], dated 11 August 2006, and Allied Documents. CONSIDERATION OF EVIDENCE: 1. The applicant's records show that he enlisted in the U.S. Army Reserve (USAR) on 29 October 1986 for a period of 4 years. During this USAR enlistment, he completed 4 months and 24 days of active duty to attend basic combat and advanced individual training. This initial enlistment in the USAR is not available for review with this case. 2. The applicant's records further show that he enlisted in the Regular Army on 5 April 1989. He completed advanced individual training and was awarded military occupational specialty (MOS) 63B (Wheeled Vehicle Mechanic). He subsequently executed a series of extensions and/or reenlistments in the Regular Army. He served in Korea, Germany, Kosovo, and Bosnia throughout his military service. He also served in Iraq in support of Operation Iraqi Freedom, from 22 April 2003 to 23 April 2004 (although he was medically evacuated on or about 18 December 2003). The highest rank he attained during his military service was SFC/E-7. 3. His awards and decorations include the Army Commendation Medal (4th Award), the Army Achievement Medal (4th Award), the Army Superior Unit Award, the Good Conduct Medal (5th Award), the National Defense Service Medal (2nd Award), the Iraq Campaign Medal, the Global War on Terrorism Service Medal, the Kosovo Campaign Medal, the Korea Defense Service Medal, the Noncommissioned Officer Professional Development Ribbon (2nd Award), the Army Service Ribbon, the Overseas Service Ribbon (2nd Award), the NATO Medal, and the Driver and Mechanic Badge with Mechanic Bar. The applicant's records do not show any significant acts of valor during his military service. 4. On 18 December 2003, the applicant sustained multiple injuries following a motor vehicle accident while serving in Iraq. He suffered brain injury, ruptured right Achilles tendon, and a laceration to the forehead. He was initially treated at a combat field hospital and later medically evacuated to Landstuhl Medical Center, Germany. He was subsequently transferred to Walter Reed Army Medical Center (WRAMC), Washington, D.C. on 25 December 2003, where he was treated by the orthopedic clinic, neurology clinic and physical therapy. Upon his release from the hospital, he was assigned to Fort Polk, Louisiana. 5. On 9 December 2005, the applicant pled guilty at a Summary Court-Martial for one specification of wrongfully having sexual intercourse with a woman (Soldier) not his wife, between on or about 1 February 2001 and on or about 31 May 2004. He was sentenced to reduction to the grade of SSG/E-6 and forfeiture of $1,938.00 pay per month for one month. 6. Throughout the two years after the applicant’s injury, he continued to show symptoms of memory deficits, impaired attention, daily headaches, occasional dizziness, as well as symptomatology of Post Traumatic Stress Disorder (PTSD). 7. On 31 March 2006, he was issued a DD Form 3349 (Physical Profile) for PTSD-Traumatic Brain Injury. The profiling officer remarked that the applicant was incapable of functioning in any live fire or simulated combat unit training. He further received a second permanent physical profile on 8 June 2006. 8. On 9 June 2006, a Medical Evaluation Board (MEB) convened at Fort Polk, Louisiana, and determined that the applicant was medically unfit for duty due to traumatic brain injury, right Achilles tendon shortening after surgery, occupational problems, and cognitive disorder due to traumatic brain injury. The MEB recommended the applicant be referred to a PEB. The MEB also noted the applicant did not desire to remain on active duty. 9. On 27 July 2006, an informal PEB convened at Fort Sam Houston, Texas, and found the applicant's condition prevented him from performing his duties and determined that he was physically unfit due to pain, secondary to right Achilles tendon shortening after surgery; cognitive disorder due to traumatic brain injury, and PTSD. The applicant was rated under the Department of Veterans Affairs Schedule for Rating Disabilities (VASRD) codes 5099, 5003, 8045, 9304, and 9411. The PEB recommended a combined disability rating of 30 percent and that the member be placed on the Temporary Disability Retired List (TDRL) with reexamination during January 2008. The applicant concurred and waived a formal hearing of his case. 10. The PEB noted that the applicant’s temporary disability retirement is based on disability from injury or disease in the line of duty or a direct result of armed conflict or caused by an instrumentality of war and incurring in line of duty during a period of war as outlined by law. 11. The applicant was separated from active duty and issued a DD Form 214 showing that he was honorably retired on 28 August 2006, in accordance with paragraph 4-24b(2) of Army Regulation 635-40. His narrative reason for separation is shown as "Physical Disability-Temporary." He completed 17 years, 4 months, and 24 days of creditable active service. Additionally, the DD Form 214 shows the following entries: a. Item 4a and 4b, "SSG/E-6;" b. Item 12a, "1989 04 05;" c. Item 12c, "0017 04 24;” and d. Item 12d (Total Prior Active Service), "000 04 01." 12. Item 13 of the applicant's DD Form 214 does not show award of the Purple Heart and the applicant's records do not contain an order awarding the applicant the Purple Heart. 13. Army Regulation 635-5 (Separation Documents) establishes the standardized policy for preparing and distributing the DD Form 214. The regulation directs, in pertinent part, that the purpose of the separation document is to provide the individual with documentary evidence of their military service. It is important that information entered on the form should be complete and accurate. This regulation specified that the DD Form 214 is a summary of a Soldier's most recent period of continuous active duty to include attendance at basic and advanced training. It also states, in pertinent part, that the DD Form 214 will be prepared for all personnel at the time of their retirement, discharge, or release from active duty. The active duty grade or rank and pay grade at the time of separation is entered in Item 4. The date the Soldier entered active duty status is entered in Item 12a; the last date of active duty is entered in Item 12b; the amount of service this period, computed by subtracting item 12a from 12b, is entered in Item 12c; and the total prior active duty service is entered in Item 12d. 14. The Purple Heart was established by General George Washington at Newburgh, New York on 7 August 1782 during the Revolutionary War. It was reestablished by the President of the United States per War Department General Orders Number 3 in 1932. It was awarded in the name of the President of the United States to any member of the Armed Forces or any civilian national of the United States who, while serving under competent authority in any capacity with one of the U.S. Armed Services after 5 April 1917, died or sustained wounds as a result of hostile action. 15. Army Regulation 600-8-22 (Military Awards) provides, in pertinent part, that the Purple Heart is awarded for a wound sustained while in action against an enemy or 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, and the medical treatment must have been made a matter of official record. DISCUSSION AND CONCLUSIONS: 1. Evidence of record shows that the applicant initially enlisted on 29 October 1986 in the U.S. Army Reserve, not in the Regular Army. He completed 4 months and 1 day of active service during this initial enlistment. This period of active military service is correctly shown in Item 12d of the DD Form 214, dated 28 August 2006. 2. Evidence of record further shows that the applicant enlisted in the Regular Army (entered active duty) on 5 April 1989 and was discharged (temporary disability retirement) on 28 August 2006. Item 12a of his DD Form 214, dated 28 August 2006, reflects the entry "1989 04 05" (the date he enlisted) and Item 12b (Separation Date This Period) reflects the entry "2006 08 28" (the date he was discharged for disability retirement). Item 12d reflects an entry of 17 years, 04 months, and 01 days, which is the applicant's total active military service from the time he enlisted to the time he was retired. 3. Evidence of record shows that the applicant was reduced to the grade of SSG/E-6 on 23 December 2005 as a result of a Summary Court-Martial that sentenced him to reduction to this grade. There are no promotion orders that show he was promoted back to SFC/E-7 after his reduction. Therefore, the entries of SSG/E-6 in Items 4a and 4b accurately reflect the applicant’s grade or rank and pay grade at the time of separation. 4. Evidence of record shows that the applicant’s unfortunate injury in Iraq resulted from a vehicle accident and not as a result of hostile action. While he undoubtedly continues to suffer from that injury, regrettably, in the absence of any evidence of record which shows that he was wounded as a result of hostile action, particularly since he was treated at a medical facility where the casualty report would have been rendered entitling the applicant to award of the Purple Heart if wounded as a result of hostile action. 5. When contemplating an award of the Purple Heart, the key issue that commanders must take into consideration is the degree to which the enemy caused the injury. The fact that the applicant was participating in direct or indirect combat operations is a necessary prerequisite, but is not sole justification for award. A wound is defined as an injury to any part of the body from an outside force, element, or agent sustained as the result of a hostile act of the enemy or while in action in the face of the enemy. 6. 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 also take into consideration the circumstances surrounding an injury. Some examples of enemy-related injuries which clearly justify award of the Purple Heart include injury caused by enemy bullet, shrapnel, or other projectile created by enemy action; injury caused by enemy placed mine or trap; injury caused by vehicle or aircraft accident resulting from enemy fire; and concussion injuries caused as a result of enemy generated explosions. 7. Some examples of injuries or wounds which clearly do not qualify for award of the Purple Heart are illness or disease not directly caused by enemy agents; accidents, to include explosive, aircraft, vehicular, and other accidental wounding not related to or caused by enemy action; post traumatic stress disorder, jump injuries not caused by enemy action; battle fatigue and/or food poisoning; and self-inflicted wounds, except when in the heat of battle, and not involving gross negligence. 8. Based on the preceding conclusions, there is no evidence of record upon which to base award of the Purple Heart in this case and the evidence submitted by the applicant is insufficient as a basis for award of the Purple Heart. Therefore, the applicant is not entitled to award of the Purple Heart. BOARD VOTE: ________ ________ ________ GRANT FULL RELIEF ________ ________ ________ GRANT PARTIAL RELIEF ________ ________ ________ GRANT FORMAL HEARING __klw___ __au____ __rdg___ DENY APPLICATION BOARD DETERMINATION/RECOMMENDATION: 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. Kenneth L. Wright ______________________ CHAIRPERSON INDEX CASE ID AR SUFFIX RECON YYYYMMDD DATE BOARDED YYYYMMDD TYPE OF DISCHARGE (HD, GD, UOTHC, UD, BCD, DD, UNCHAR) DATE OF DISCHARGE YYYYMMDD DISCHARGE AUTHORITY AR . . . . . DISCHARGE REASON BOARD DECISION (NC, GRANT , DENY, GRANT PLUS) REVIEW AUTHORITY ISSUES 1. 2. 3. 4. 5. 6.