BOARD DATE: 18 February 2014 DOCKET NUMBER: AR20130019270 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: * reconsideration of his earlier request for restoration of his award of the Purple Heart and damages for lost income * as a new issue, removal of the General Officer of Reprimand (GOMOR) from his records 2. The applicant states he received a leg injury in Afghanistan in 2007 and was awarded the Purple Heart for this injury by the Department of Defense (DOD). The award was revoked by the chief of the Awards and Decorations Branch, U.S. Army Human Resources Command (HRC), some five years after that. He considers his Purple Heart valid and believes HRC has no lawful right to take his award. The Board failed to review the entire evidence submitted by him in his earlier application and the Board's findings caused him personal damage. Furthermore, an "Ex-Post Facto" (after the fact) ruling devoid of rules are unconstitutional and are unethical. Specifically, he states: * the evidence that led to rescinding his award of the Purple Heart and receipt of the GOMOR was manufactured and false * HRC did not have jurisdiction in the award of the Purple Heart; the jurisdiction belongs to DOD * HRC violated their own procedures because Ex-Post Factos rules are unethical; HRC revoked the award 5 years after it had been issued * he has been stabbed in the back by those who sit in air conditioned offices and do not hold to the decisions made by the command in a combat zone * he has suffered the loss of employment and his reputation has suffered as a result of the actions of Government employees * he has been forced into the retirement process as a result of the leg injury that was validated by the Department of Veterans Affairs (VA) and the medical review system * he deserves damages for the loss of one year of employment because of the lies and abuse of power by the Chief of Awards Branch at HRC * the Board should issue him a letter of apology after correcting his records and validating his award of the Purple Heart * he cannot run for public office until this issue is resolved; the actions by HRC has hurt his reputation * the Board should contact him for further information or clarification as the Board's system is detached; issues like this ruin lives * the Army is corrupt and is run by personalities, not rules; if the Board supports HRC's ruling in revoking the Purple Heart then the Board is supporting the abuse of power * he should receive an independent review by a group of people who do not communicate with one individual in the Awards and Decorations Branch * his award was screwed up but was fixed in Afghanistan by a DOD Special Task Force Command with authority * he regards his Purple Heart to be perpetually valid and reiterates his position that HRC has no lawful right to take it 3. The applicant provides an email regarding his medical status and the letter from the Chief of Awards and Decorations Branch at HRC. CONSIDERATION OF EVIDENCE: 1. Incorporated herein by reference are military records which were summarized in the previous consideration of the applicant's case by the Army Board for Correction of Military Records (ABCMR) in Docket Number AR20120006868, on 23 October 2012. 2. The applicant submitted a new argument in the form of a rebuttal to the previous Record of Proceedings. Therefore, it is considered new evidence and as such, warrants consideration by the Board. 3. Having had prior enlisted service, the applicant was appointed as a Reserve commissioned officer of the Virginia Army National Guard (VAARNG) on 25 July 1992. He completed the Infantry Officer Basic Course. 4. He was honorably separated from the VAARNG (due to resignation) on 11 July 1995 and he was transferred to the U.S. Army Reserve (USAR) Control Group to complete his remaining service obligation. 5. He was transferred to the Kentucky ARNG (KYARNG) on 13 October 2004. He entered active duty on 16 December 2004 and served in Kuwait/Iraq from 27 January 2005 to 18 January 2006. He was honorably released from active duty on 14 February 2006. 6. He again entered active duty on 2 January 2007 and subsequently served in Afghanistan from 11 January 2007 to 31 March 2008. He was assigned as an Embedded Training Team (ETT) Kandak Mentor, 4th Kandak, 1st Brigade, 201st Corps, Afghan National Army, in the rank of captain. His unit fell under the operational control of Task Force Phoenix. 7. He was honorably released from active duty on 26 May 2008. His DD Form 214 (Certificate of Release or Discharge from Active Duty) listed several awards but not the Purple Heart. 8. On 9 January 2009, he was issued a DD Form 215 (Correction to DD Form 214) that added bronze service stars to his Iraq and Afghanistan Campaign Medals. 9. On or about 3 March 2009, the applicant filed a Congressional Inquiry with Congressman Driehaus asking him to look into HRC's denial of his application for the Purple Heart. HRC responded to Congressman Driehaus in a letter dated 18 March 2009, stating that the Awards and Decorations Branch had reviewed the application and the Defense Casualty Records and determined the applicant was not entitled to receive the Purple Heart Award. The letter stated: We reviewed Defense Casualty Records for Operation Enduring Freedom and were unable to locate an entry for [Applicant]. A review of [Applicant's] records indicates that he is currently serving in an active component of the Army National Guard. As such, any request for an award of the Purple Heart must be forwarded through his current chain of command to this office for review and determination. We recommend he work with his current unit S-1 to assemble a request packet. This packet must include: DA Form 4187 (Personnel Action) with chain of command endorsements, all medical documentation pertaining to treatment for his injuries, and notarized eyewitness statements. When we receive the packet, we will make a determination of [Applicant's] entitlement to an award of the Purple Heart. 10. A second letter from the Military Awards Branch, HRC, dated 11 May 2009, to Congressman Driehaus stated: The criteria for award of the Purple Heart require it to be awarded to Soldiers for wounds or injuries received as a direct result of enemy action. The wounds must have required treatment by medical personnel been made a matter of official record. Official documentation reflecting medical treatment following the incident must be provided. As [Applicant] indicates he is no longer on active duty, this office is able to respond to this request. In this regard, we reviewed the submitted eyewitness statements and medical records and note that [Applicant] injured his knee while he was mounting a High Mobility Multi-Purpose Wheeled Vehicle (HMMWV) in order to respond to enemy fire and received Naproxen for his injury. However, it appears that [Applicant's] injury was the result of an accident and not the direct result of enemy action. Accordingly an award of the Purple Heart cannot be authorized 11. He entered active duty on 25 June 2009 and served in Kuwait from 2 July 2009 to 25 October 2009. He was assigned to the Combined Special Operations Command (CFSOCC) at Al Udeid Air Base, Qatar. He was honorably released from active duty on 9 November 2009. 12. On 15 October 2009, Headquarters, Combined Joint Task Force Phoenix, Camp Phoenix, Afghanistan, published Permanent Order Number 288-002 awarding the applicant the Purple Heart for wounds received in action on 3 September 2007. 13. On 14 December 2009, he was issued a second DD Form 215 that added award of the Purple Heart. 14. On 25 May 2010, the KYARNG Inspector General (IG) notified the applicant that their office received allegations that he: * knowingly and willfully improperly submitted for a Purple Heart after having been denied the award by HRC, the regulatory approval authority, in violation of Army Regulation 600-8-22 (Military Awards), paragraph 2-8, and failing to obey orders or regulation * falsely represented himself as having been awarded a Purple Heart, a decoration authorized by Congress, and knowingly wearing same in violation of the Title 18, Part I, Chapter 33, section 704 (The Stolen Valor Act) * demonstrated conduct unbecoming an officer in violation of State regulations and the Uniform Code of Military Justice 15. The IG further stated that in accordance with Army Regulation 20-1 (Inspector General Activities and Procedures), the Inspector General referred the allegations to the chain of command for appropriate action. 16. As a result, The Adjutant General, KYARNG, appointed an investigating officer (IO) to conduct an investigation into circumstances of the applicant's injury, line of duty investigation, and the subsequent award of the Purple Heart. 17. According to the applicant's statement, on 3 September 2007 at Forward Operating Base (FOB) Methar lam while serving as an ETT, the team came under attack by enemy forces around 0200 hours. He exited the lodging area to take cover and assess/respond while enemy fire was being fired around the team from a nearby hillside. The applicant had the M240B Machine Gun and moved to mount it into one of the HMMWVs. As he jumped on the vehicle, his knee collapsed sideways and he heard a snapping sound in his leg. He screamed out in pain and fell to the ground. Other members came to assist. The applicant was later able to drive the HMMWV but could not walk. He was later treated by a corpsman and the next day he had a brace on his knee. 18. According to the IO's Report of Investigation (ROI), submitted on 23 June 2010: a. The KYARNG received information that the applicant may have circumvented appropriate channels in applying for this award after it had been denied by HRC. The IO was also instructed to verify the authenticity of documents submitted to a member of Congress (requesting assistance in this matter) and to verify authenticity of the documents submitted to HRC and the awarding command (Joint Task Force Phoenix) in support of the applicant's award. b. The IO determined the preponderance of the evidence supported a finding that the applicant pushed for the issuance of the Purple Heart award through a relentless, willful, and wrongful manipulation of multiple approval authorities, despite the fact that he was aware of the proper procedures governing the submission and approval of this award and despite the fact that this award had been twice denied by the final approval authority, HRC. The investigation also revealed that some of the paperwork submitted by the applicant to Army leadership as well as to e Member of Congress was suspect in its veracity and authenticity. Other documents were incomplete or do not bear a commander's signature, such as the initial DA Form 4187, hence, they were not considered official documents. In sum, the Purple Heart that [Applicant] received from the Combined Joint Task Force Phoenix in Afghanistan on 15 August 2009 for an injury that occurred on 3 September 2007 (during a previous tour under this command), was awarded erroneously as a result of [Applicant's] willfull and wrongful disregard of proper procedures and knowing of the submission of erroneous and incomplete documentation. The Afghanistan chain of command that ultimately and mistakenly issued the award had no jurisdiction or authority to make the award. HRC remains the final approval authority for the award of the Purple Heart and it has properly and repeatedly denied approval of the award to [Applicant] for the injuries he sustained in Afghanistan on 3 September 2007. c. The IO recommended the applicant's chain of command: * initiate action to rescind this award and a summation of this investigation be made a matter of record * refer the evidence and findings contained in this report to a proper criminal investigation authority * notify the Member of Congress to determine whether his office would like to pursue a criminal investigation * notify the Afghanistan chain of command which improperly issued the award in order to correct their official wartime valor awards record * forward this investigation to the HRC Stolen Valor Office for action by that office * consider appropriate administrative and/or disciplinary action against the applicant based on the evidence * file a copy of this investigation in the applicant's official records 19. On 31 January 2012, the applicant was issued a DD Form 215 that deleted the Purple Heart from his records. 20. On 7 March 2012, by letter, the Chief, HRC Awards and Decorations Branch notified the Member of Congress that HRC has revoked PO Number 288-002, issued on 15 October 2009, by Headquarters, Combined Joint Task Force Phoenix, Camp Phoenix, Afghanistan because it was not valid. The applicant was not entitled to award of the Purple Heart because his injuries were accidental. The Purple Heat was not authorized for injuries accidentally incurred during combat or in a combat zone. The determination was based on medical documentation and eyewitness statements he provided. 21. On 28 March 2012, the applicant was reprimanded by TAG, KYARNG. The reprimand stated: a. It appeared he never petitioned the active duty chain of command to award him the Purple Heart for his accident while he was in country. Once his chain of command departed the FOB, award authority for qualifying Purple Heart injuries transferred to HRC. He petitioned HRC twice in an attempt to receive the Purple Heat and in each occasion, HRC explained he was not entitled to this award. He then petitioned several Members of Congress to assist in the effort but failed to inform the Congressional representatives that the final approval authority had twice denied him this award. b. Ultimately, he was able to convince a follow-on commander at Forward Operating Base (FOB) Mather-Lan to approve this award despite the fact that this commander had no authority to approve the award. The KYARNG conducted an investigation which revealed the manipulation and forwarded the results to HRC. Upon review of the evidence, HRC withdrew the award and corrected the record by deleting it. c. This behavior is inexcusable and reprehensible. Soldiers who wear awards and decorations they have not earned cheapen and undermine the sacrifice and honor of those who earned them. The efforts he put forth to obtain this award indicate a great degree of planning and forethought, but more importantly they indicate he knew he was not entitled to this award. His decision to continue this scheme by providing incomplete and misleading information to the IO and his elected representatives indicate that he does not possess the integrity expected of an officer in the KYARNG. 22. On 25 April 2012, the applicant acknowledged receipt of the GOMOR and provided a rebuttal. 23. On 6 August 2012, after carefully considering the reprimand, the circumstances surrounding the incident, and all matters submitted by the applicant in his defense, TAG ordered the GOMOR be placed permanently in the applicant's Army Military Human Resource Record (AMHRR). He also indicated he would reexamine the filing decision in 12 months. 24. Army Regulation 600-8-22 provides that the Purple Heart is awarded for a wound sustained in action against an enemy or as a result of hostile action. Substantiating evidence must be provided to verify 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. Additionally, this regulation provides for award of the Purple Heart to individuals wounded or killed as a result of "friendly fire" in the "heat of battle" as long as the "friendly" projectile or agent was released with the full intent of inflicting damage or destroying enemy troops or equipment. a. Examples of enemy-related injuries which clearly justify award of the Purple Heart are as follows: injury caused by enemy bullet, shrapnel, or other projectile created by enemy action; injury caused by enemy placed mine or trap; injury caused by enemy released chemical, biological, or nuclear agent; injury caused by vehicle or aircraft accident resulting from enemy fire; and/or concussion injuries caused as a result of enemy generated explosions. b. Examples of injuries or wounds which clearly do not justify award of the Purple Heart are as follows: frostbite or trench foot injuries; heat stroke; food poisoning not caused by enemy agents; chemical, biological, or nuclear agents not released by the enemy; battle fatigue; 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; self-inflicted wounds, except when in the heat of battle and not involving gross negligence; post-traumatic stress disorders; and/or jump injuries not caused by enemy action. 25. Military Personnel Message, dated 20 May 2004, Subject: Delegation of Wartime Approval Authority - Operations in Afghanistan, states commanders delegated wartime award approval authority by the Commander, Combined Forces Command - Afghanistan (CFC-A) will retain that authority only while they remain in the theater of operations. Upon the commander's redeployment, the Commander, CFC-A will withdraw that authority. Commanders will be given 90 days to complete any pending award recommendations. After that time, wartime award recommendations will be forwarded to the unit's peace-time chain of command to HRC for processing. 26. Army Regulation 600-37 (Unfavorable Information) provides that an administrative memorandum of reprimand may be issued by an individual's commander, by superiors in the chain of command, and by any general officer or officer exercising general court-martial jurisdiction over the Soldier. The memorandum must be referred to the recipient and the referral must include and list applicable portions of investigations, reports, or other documents that serve as a basis for the reprimand. Statements or other evidence furnished by the recipient must be reviewed and considered before a filing determination is made. 27. A memorandum of reprimand may be filed in a Soldier's AMHRR only upon the order of a general officer-level authority and is to be filed in the performance section. The direction for filing is to be contained in an endorsement or addendum to the memorandum. If the reprimand is to be filed in the AMHRR, the recipient's submissions are to be attached. Once filed in the AMHRR, the reprimand and associated documents are permanent unless removed in accordance with Army Regulation 600-37, chapter 7. Paragraph 7-2 provides that once an official document has been properly filed in the AMHRR, it is presumed to be administratively correct and to have been filed pursuant to an objective decision by competent authority. Thereafter, the burden of proof rests with the individual concerned to provide evidence of a clear and convincing nature that the document is untrue or unjust, in whole or in part, thereby warranting its alteration or removal from the AMHRR. 28. Army Regulation 600-8-104 (AMHRR Management) prescribes Army policy for the creation, utilization, administration, maintenance, and disposition of the AMHRR. Table B-1 states a memorandum of reprimand is filed in the performance section of the AMHRR unless directed otherwise by an appropriate authority (Department of the Army Suitability Evaluation Board (DASEB) or ABCMR). DISCUSSION AND CONCLUSIONS: 1. With respect to the GOMOR: a. The applicant's request to the ABCMR to remove the GOMOR from his records is premature. Army Regulation 15-185, section II, paragraph 2-5, the regulation under which this Board operates, states the ABCMR will not consider an application until the applicant has exhausted all administrative remedies to correct the alleged error or injustice. b. The applicant is still in the Selected Reserve. There is no evidence he petitioned the DASEB and he was denied relief. Chapter 7 of Army Regulation 600-37 provides information on appeals and petitions to remove unfavorable information or move unfavorable information into the restricted folder of the AMHRR. c. Appeals and petitions from Active Duty Soldiers and from U.S. Army Reserve Soldiers in Troop Program Units (TPU) are to be directed to the DASEB in accordance with procedures outlined in chapter 7. ARNG Soldiers not on active duty will direct their appeals and petitions through state Adjutant General and the Chief, National Guard Bureau, to the DASEB in accordance with procedures outlined in chapter 7. As such, this issue will not be discussed further in this Record of Proceedings. 2. With respect to the Purple Heart: a. The Purple Heart differs from all other decorations in that an individual is not "recommended" for the decoration; rather he or she is entitled to it upon meeting specific criteria. 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 (emphasis added). The fact that the proposed recipient was participating in direct or indirect combat operations is a necessary prerequisite, but is not sole justification for the award. b. The evidence of record shows the applicant was trying to mount an M240 Machine Gun into a HMMWV. As he jumped on the vehicle, his knee collapsed sideways and he heard a snapping sound in his leg. He screamed out in pain and fell to the ground. The applicant was later able to drive the HMWWV but could not walk. He was later treated by a corpsman and the next day he had a brace on his knee. This is considered an accident. It was not directly caused by enemy action. It does not meet the criteria for award of the Purple Heart. c. The criteria for an award of the Purple Heart requires the submission of substantiating evidence to verify that the injury/wound was the result of hostile action, the injury/wound must have required treatment by medical personnel, and the medical treatment must have been made a matter of official record. 3. With respect to the applicant's arguments: a. He claims the evidence that led to rescinding his award of the Purple Heart and receipt of the GOMOR was manufactured and false. Contrary to this argument, the evidence of record clearly shows an investigation was conducted by a competent authority. An IO examined the evidence, including the medical records and witness/sworn statements (including the applicant's). The IO determined the preponderance of the evidence supported a finding that the applicant pushed for the issuance of the Purple Heart award through a relentless, willful, and wrongful manipulation of multiple approval authorities, despite the fact that he was aware of the proper procedures governing the submission and approval of this award and despite the fact that this award had been denied by the final approval authority, HRC. b. He claims HRC did not have jurisdiction in the award of the Purple Heart; the jurisdiction belongs to DOD. Contrary to this argument, approval authority for the Purple Heart will be in accordance with the delegation of authority to approve awards issued by the Assistant Secretary of the Army (Manpower and Reserve Affairs) when a Soldier receives a qualifying wound or injury while serving in a command with delegated approval authority for wartime awards for that Soldier’s unit. Authority to approve or disapprove recommendations for the award for Soldiers who did not receive a Purple Heart while serving in a unit with approval authority for wartime awards is the Commander, HRC and may be further delegated in writing no lower than the Branch Chief, Awards and Decorations Branch, HRC. Although a Soldier may be deployed, award of the Purple Heart for injuries incurred in a previous deployment must be processed through the Soldier’s current chain of command to the Commander, HRC for approval. c. He contends HRC violated their own procedures because Ex-Post Facto rules are unethical and that HRC revoked the award 5 years after it had been issued. Contrary to this contention, the governing Army regulation states no military decoration, except the Purple Heart, will be awarded more than 3 years after the act or period of service to be honored. Once an award has been presented, it may be revoked by the awarding authority if facts subsequently determined would have prevented the original approval of the award had they been known at the time. The authority to wear an award may be suspended by the award approval authority or higher authority. HRC was and remains the authority to revoke this award. d. He contends that he has been stabbed in the back by those who sit in air conditioned offices and do not hold to the decisions made by the command in a combat zone. It does not appear anyone was trying to stab or undermine him. His award was investigated by a competent authority - the KYARNG - the very same command he is a member of. e. He contends he has suffered the loss of employment and his reputation has suffered as a result of the actions of Government employees. He also contends he has been forced into the retirement process as a result of the leg injury that was validated by the VA and the medical review system. The ABCMR corrects records but it does not correct records solely for the purpose of establishing eligibility for other programs or benefits. The applicant is advised to address the issue of employment with his State or an appropriate agency and the issue of any service-connected medical issues with the VA. f. He contends that he deserves damages for the loss of one year of employment because of the lies and abuse of power by the chief of the Awards Branch at HRC. The Army, by law, may pay claims for amounts due to applicants as a result of correction of military records. The ABCMR is not a pay master or a finance agency. If as a result of a records correction a member is entitled to pay and allowances, the ABCMR will furnish the Defense Finance and Accounting Service (DFAS) copies of decisions potentially affecting monetary entitlement or benefits. DFAS will treat such decisions as claims for payment by or on behalf of the applicant. There is no record to correct in the applicant's case because there is no error or injustice to correct. g. He contends the Board should issue him a letter of apology after correcting his records and validating his award of the Purple Heart. Again, the ABCMR corrects military records. When an applicant submits an application to the ABCMR, the ABCMR begins its consideration of each case with the presumption of administrative regularity. The applicant has the burden of proving an error or injustice by a preponderance of the evidence. Here, the applicant has failed to prove an error or an injustice in the revocation of his unearned award of the Purple Heart. h. He contends that he cannot run for public office until this issue is resolved; the actions by HRC have hurt his reputation. This is a personal decision that is not within the purview of this Board. i. He contends the Board should contact him for further information or clarification as the Board's system is detached; issues like this ruin lives. It appears the evidence of record and independent evidence provided by the applicant is sufficient to render a fair and equitable decision at this time. As a result, contacting the applicant is not necessary to serve the interest of equity and justice in this case. j. He contends the Army is corrupt and is run by personalities, not rules; and that if the Board supports HRC's ruling in revoking the Purple Heart then the Board is supporting the abuse of power. While the applicant is entitled to his own opinion regarding the state of the Army, the ABCMR is independent from HRC. The Board is not bound by any decisions or opinions obtained from HRC or any other agencies. k. He contends he should receive an independent review by a group of people who do not communicate with one individual in the HRC Awards and Decorations Branch. The Director of the ABCMR is responsible for the day-to-day operations of the ABCMR. The Director may request additional information from outside agencies, including HRC. These agencies may furnish advisory opinions on matters within their areas of expertise upon request of the ABCMR and in a timely manner. They also provide records, investigations, information, and documentation; and provide additional assistance upon request of the ABCMR. In this particular case, the ABCMR has not sought out any advisory opinions from any outside agencies. l. He contends his award was screwed up but was fixed in Afghanistan by a DOD Special Task Force Command with authority. Contrary to this contention, the subsequent commander did not have the authority to award the Purple Heart to the applicant. Once the applicant's wartime commander departed theater, that commander had 90 days to complete awards and decorations. After that time, wartime award recommendations will be forwarded to the unit's peace-time chain of command to HRC for processing. 4. After a comprehensive review of the evidence of record and the evidence submitted by the applicant, it is clear that the applicant sustained an accident that did not meet the criteria for award of the Purple Heart. It is equally clear he obtained his award of the Purple Heart through relentless, willful, and wrongful deception and manipulation and that the award was issued to him in error. He is not entitled to the requested relief. BOARD VOTE: ________ ________ ________ GRANT FULL RELIEF ________ ________ ________ GRANT PARTIAL RELIEF ________ ________ ________ GRANT FORMAL HEARING __X__ ___X_____ ___X_____ 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 to amend the decision of the ABCMR set forth in Docket Number AR20120006868, dated 23 October 2012. _______ _ 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) AR20130019270 3 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1 ABCMR Record of Proceedings (cont) AR20130019270 2 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1