IN THE CASE OF: BOARD DATE: 8 May 2012 DOCKET NUMBER: AR20110020509 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, in effect, correction of his DD Form 214 (Certificate of Release or Discharge from Active Duty) to show award of the Purple Heart. 2. The applicant states he broke his leg in combat while carrying a wounded Soldier out of a hostile area. 3. The applicant provides, in support of his request, a copy of his award certificate, medical records, Medical Evaluation Board (MEB) Proceedings, DD Form 214, and a Department of Veterans Affairs (VA) 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 applicant enlisted in the Regular Army (RA) on 11 August 2004. He was awarded military occupational specialty 11B (Infantryman). 3. The applicant served in Iraq from 1 July 2006 to 4 July 2007. 4. A DA Form 199 (Physical Evaluation Board (PEB) Proceedings) shows a PEB convened on 6 May 2008 at Fort Lewis, Washington, to consider the sprain and stress fracture of the applicant's left ankle that required reconstructive surgery in August 2007. a. The disability description section shows the applicant "originally injured ankle while in Iraq in 2007, but did not seek medical evaluation for several months. Soldier eventually required evacuation from theater." b. The PEB found the applicant physically unfit, recommended a combined rating of 10%, and separation with severance pay. c. The PEB proceedings also show: (1) The disability is not based on an injury or disease received in line of duty as a direct result of armed conflict or caused by an instrumentality of war and occurring in line of duty during a period of war as defined by law; (2) The disability did not result from a combat-related injury as defined in Title 26 U.S. Code, section 104; and (3) The disability was incurred in a combat zone or incurred during the performance of duty in combat-related operations as designated by the Secretary of Defense (National Defense Authorization Act (NDAA) 2008, section 1646). d. On 8 May 2008, the applicant concurred with the informal PEB proceedings and waived a formal hearing of his case. e. The PEB proceedings were approved on 30 May 2008. 5. Installation Management Command, Military Personnel Division, Fort Lewis, Washington, Orders 155-0007, dated 3 June 2008, discharged the applicant from the RA on 21 July 2008 under the provisions of Army Regulation 635-40 (Physical Evaluation for Retention, Retirement, or Separation) with a disability rating of 10%. He was credited with 3 years, 11 months, and 11 days of active service. 6. The applicant's DD Form 214 shows he entered active duty on 11 August 2004 and was honorably discharged on 21 July 2008 under the provisions of Army Regulation 635-40 and NDAA 2008 based on disability with severance pay (combat related). a. He completed 3 years, 11 months, and 11 days of net active service. b. Item 13 (Decorations, Medals, Badges, Citations and Campaign Ribbons Awarded or Authorized), along with item 18 (Remarks), shows the: * Army Commendation Medal (2nd Award) * Army Achievement Medal * Army Good Conduct Medal * National Defense Service Medal * Global War on Terrorism Service Medal * Army Service Ribbon * Overseas Service Ribbon * Combat Infantryman Badge * Iraq Campaign Medal with 1 bronze service star * 2 Overseas Service Bars 7. A review of the applicant's military personnel records failed to reveal any evidence that he was awarded the Purple Heart. 8. In support of his application the applicant provides the following documents. a. A DA Form 4980-16 (Army Commendation Medal Certificate) that shows Headquarters, 3rd Stryker Brigade Combat Team, 2nd Infantry Division, Permanent Order Number 099-038, dated 9 April 2007, awarded the Army Commendation Medal to the applicant for outstanding achievement during the Battle of Najaf from 28 to 30 January 2007. The citation describes the applicant's actions. It does not show he was wounded or injured in action. b. Optional Form 275-E (Medical Record Report - Madigan Army Medical Center (AMC)) that shows, on 23 August 2007, the applicant underwent percutaneous lateral ankle ligamentous reconstruction for an ankle inversion injury that he sustained in January 2007. (1) The physician indicated the injury occurred when the applicant was in battle in Iraq and he was carrying another Soldier. (2) The Health Record Review section shows "there is a handwritten DD Form 689, Individual Sick Slip, dated 6 April 2007, which diagnosed (the applicant) with a healing stress fracture and sprain of the left ankle." It also shows "there is a second handwritten sick slip, dated 9 April 2007, diagnosing (the applicant) with a left ankle sprain and indicating that he will attend physical therapy." c. Standard Form 600 (Chronological Record of Medical Care) that shows the applicant was seen at the Hearing Conservation Clinic, Madigan AMC, on 20 December 2007. The diagnosis was Sensorineural Hearing Loss most likely due to noise exposure secondary to blast injury. d. An SF 600 that shows, on 29 January 2008, the examining medical official provided a summary of the applicant's psychological assessment indicating that his responses suggest moderate depression and possible post-traumatic stress disorder. e. Page 3 of a DD Form 2807-1 (Report of Medical Examination), dated 13 February 2008, that shows the examining physician noted "fractured fibula during mission in Iraq - required surgery to reconstruct ligamentous, August 2007. Went through physical therapy - continued ankle pain and instability. Wears brace for stability. No further surgery." f. Page 1 of a Madigan AMC, MEB Narrative Summary, dated 5 March 2008, patient interview section, shows the applicant reported he sustained "an injury during the Battle of Zarqa (a.k.a. the Battle of Najaf), on 29 January 2007. The applicant had been participating in an all-night firefight and was helping to medically evacuate casualties at first sunlight. He reports that, while carrying an Iraqi casualty, he rolled his left ankle and experienced immediate pain. Because of the immediacy of the combat situation, [the applicant] ignored his pain as best he could in order to continue the mission. He was too busy to remove his boots for the next four (next page missing)." No further information is available on the form provided. g. Page 1 of a VA letter, dated 30 November 2010, that shows the applicant was granted a combined service-connected disability rating of 80%. 9. 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. 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. a. 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. b. The regulation provides examples of injuries or wounds which clearly do not justify award of the Purple Heart that, in pertinent part, shows accidents, to include explosive, aircraft, vehicular, and other accidental wounding or injury not related to or caused by enemy action. DISCUSSION AND CONCLUSIONS: 1. The applicant contends that his records should be corrected to show award of the Purple Heart. 2. The evidence of record shows the applicant sustained an injury while serving in Iraq on 29 January 2007 when he was helping to medically evacuate casualties and, while carrying an Iraqi casualty, he rolled his left ankle. 3. There is no evidence the applicant sought medical treatment for his injury at the time and no evidence of an official record of any such medical treatment. In fact, the evidence of record shows the first time the applicant sought medical treatment for the injury was on 6 April 2007, more than 2 months after he sustained the injury. 4. The citation for the applicant's award for his actions on 27 to 30 January 2007 does not show he was wounded or injured in the action. 5. The medical records the applicant provides begin with the procedure that was performed on his ankle on 23 August 2007 after he had redeployed to the United States and nearly 7 months after he sustained the injury. 6. The evidence of record shows the PEB found the applicant's injury was not a direct result of armed conflict or caused by an instrumentality of war. It also shows the applicant concurred with the PEB's findings. 7. While the sincerity of the applicant's claim is not disputed, there is insufficient documentary evidence to corroborate that the applicant was injured as a result of enemy action in Iraq on 29 January 2007. The military awards regulatory guidance requires that substantiating evidence must be provided to verify that the wound was the result of hostile action, the wound must have required treatment by medical personnel, and the medical treatment must have been made a matter of official record. 9. In the absence of documentation substantiating the fact that the applicant was injured as a result of hostile action in Iraq on 29 January 2007, there is insufficient evidence to support the applicant's claim to award of the Purple Heart in this case. 10. Therefore, in view of the foregoing, there is no 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: 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. _______ _ 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) AR20110020509 3 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1 ABCMR Record of Proceedings (cont) AR20110020509 2 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1