IN THE CASE OF: BOARD DATE: 1 July 2008 DOCKET NUMBER: AR20080007111 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 award of the Purple Heart. 2. The applicant states that he sustained serious bodily injuries which were incurred in the line of duty while involved in combat operations during Operation Iraqi Freedom. He contends that he was evacuated and the full extent of his injuries was not communicated to his assigned unit and that he was in several Army hospitals. 3. The applicant provides a copy of his DD Form 214 (Certificate of Release or Discharge from Active Duty); deployment orders; a DA Form 2173 (Statement of Medical examination and Duty Status), dated 21 October 2003; a Medical Evaluation Board (MEB) Narrative Summary; MEB Proceedings; and service medical records. COUNSEL'S REQUEST, STATEMENT AND EVIDENCE: 1. The Disabled American Veterans, as counsel for the applicant, points out that the applicant served on active service from 15 March 2003 to 1 July 2004 and that his injuries resulted from a high-speed impact while in the middle of a dust storm in the desert which contributed to his cervical spine condition and chronic migraine headaches. Counsel contends that the applicant’s injuries warrant consideration for award of the Purple Heart since they were sustained while in the theater of war. 2. Counsel provides a statement, dated 19 May 2008. 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. Having prior inactive and active service, the applicant was ordered to active duty from the U.S. Army Reserve on 15 March 2003 in support of Operation Enduring Freedom. He served in Kuwait and Iraq from 15 May 2003 to 27 July 2003. On 1 July 2004, he was released from active duty and placed on the Temporary Disability Retired List the following day. 3. The applicant’s DD Form 214 does not show the Purple Heart as an authorized award. 4. There are no orders for the Purple Heart in the available records. 5. The applicant provided a DA Form 2173, dated 21 October 2003, which states that he injured his head and neck on 27 July 2003 while mobilized for Operation Enduring Freedom. He was a passenger in a van that was hit by a tractor trailer in Kuwait. 6. The applicant also provided a MEB Narrative Summary which states, in pertinent part, that he was in a motor vehicle accident on 24 July 2003 when his vehicle was rear ended in a relatively high speed collision in the middle of a dust storm in Kuwait. 7. Army Regulation 600-8-22 (Military Awards) provides, in pertinent part, that the Purple Heart 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 military medical personnel, and the medical treatment must have been made a matter of official record. The regulation states that 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. DISCUSSION AND CONCLUSIONS: Medical evidence of record shows the applicant was injured in a motor vehicle accident on 24 July 2003 in Kuwait, not as a result of hostile action. There is no evidence in the applicant's service personnel record which shows that he was wounded or injured a result of hostile action in Kuwait. Therefore, there is insufficient evidence on which to amend his DD Form 214 to show award of the Purple Heart. BOARD VOTE: ________ ________ ________ GRANT FULL RELIEF ________ ________ ________ GRANT PARTIAL RELIEF ________ ________ ________ GRANT FORMAL HEARING __xxx___ __xxx___ __xxx___ 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. XXX _ _______ ______________ 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) AR20080007111 3 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1 ABCMR Record of Proceedings (cont) AR20080007111 3 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1