BOARD DATE: 21 February 2017 DOCKET NUMBER: AR20150015104 BOARD VOTE: ____x_____ ___x____ _____x___ GRANT FULL RELIEF ________ ________ ________ GRANT PARTIAL RELIEF ________ ________ ________ GRANT FORMAL HEARING ________ ________ ________ DENY APPLICATION 2 Enclosures 1. Board Determination/Recommendation 2. Evidence and Consideration BOARD DATE: 21 February 2017 DOCKET NUMBER: AR20150015104 BOARD DETERMINATION/RECOMMENDATION: The Board determined the evidence presented is sufficient to warrant a recommendation for relief. As a result, the Board recommends that all Department of the Army records of the individual concerned be corrected by: a. awarding him the Purple Heart for wounds sustained as a result of enemy action on 6 September 2009 and b. correcting his DD Form 214 by: * deleting the Afghanistan Campaign Medal with one bronze service star * adding the Purple Heart, Afghanistan Campaign Medal with two bronze service stars, and Global War on Terrorism Service Medal _______________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. BOARD DATE: 21 February 2017 DOCKET NUMBER: AR20150015104 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 it should have been awarded while he was in the service. It is unjust to deny it now. 3. The applicant defers the submission of documents to his counsel. COUNSEL'S REQUEST, STATEMENT, AND EVIDENCE: 1. Counsel requests, in effect, correction of the applicant’s DD Form 214 (Certificate of Release or Discharge from Active Duty) to show the Purple Heart for wounds sustained on 6 September 2009. 2. Counsel states the applicant was wounded by an improvised explosive device (IED). Paperwork requesting the medal was completed by his chain of command, but it was never acted upon. The applicant was treated by a medic at the scene and airlifted for further treatment. Medical treatment was made a matter of official record. 3. Counsel provides copies of: * applicant's DD Form 214 * Enlisted Record Brief (ERB) * email from applicant to counsel, dated 28 July 2014 * Letter from the Army Human Resources Command (HRC), Awards and Decorations Branch, dated 23 January 2015 * HRC letter, dated 6 November 2014 * group travel orders, dated 3 June 2009 * DA Form 4187 (Personnel Action), requesting the Purple Heart originated by the applicant's commander, dated 11 June 2010 * service medical records * DA Form 4187-1-R (Personnel Action Form Addendum), incomplete * Letter, undated, written to HRC, Awards and Decorations Branch * Sworn statement of Ernst P. W____ * Sworn Statement from Andrew M. D____ * Applicant's undated statement * Department of Veterans Affairs (VA) Progress Notes * VA Rating Decision, dated 7 October 2011 * service medical records (approximately 120 pages) * DD Form 2808 (Separation Medical Examination), dated 11 August 2010 * Applicant's 23 July 2015 declaration 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 on 12 November 2008. He completed training in military occupational specialty 11B (infantryman). 3. He served in Afghanistan with Company C, 2nd, Battalion, 87th Infantry, 10th Mountain Division. 4. The applicant’s DD Form 214 shows he was discharged on 8 November 2010 with an under honorable conditions (general) discharge for drug abuse. He completed 1 year, 11 months, and 8 days of creditable active service with no lost time. His DD Form 214 shows he served in Afghanistan from 21 July to 30 December 2009. His awards included the: * Afghanistan Campaign Medal with one bronze service star * National Defense Service Medal * Army Service Ribbon * Overseas Service Ribbon * North Atlantic Treaty Organization Medal * Combat Infantryman Badge * Parachutist Badge 5. In support of the applicant's request, counsel submitted: a. DA Form 4187, dated 11 June 2010, from the applicant's commander to the division commander requesting the applicant be awarded the Purple Heart. This form shows on 6 September 2009, the applicant was involved in an IED incident. This form contains a brief description of the incident showing “[the applicant] was on a dismounted patrol moving through ‘Echo 6,’ a section of MSR Ohio clearing the road for their vehicles to move along the road to finish the mission, when the patrol hit an IED, injuring [applicant] and another servicemember. They were evacuated to FOB Shank for further medical attention." b. A medical record completed by the applicant’s healthcare provider showing the applicant “was struck by IED blast multiple shrapnel R inner quad, Sep 09, evac'd to FOB Shank then RTD'd in four days, well healed…” This document is signed by a physician assistant in the grade of captain. 6. Sworn statements, given on the installation and witnessed by two other Soldiers besides the individual administering the oath, dated 11 June 2010, were provided by: a. Paul W. E___, who related that he was the gunner on the medevac truck when they were notified that 2nd Platoon, C Company, had encountered an IED. The applicant had a shrapnel wound in his right thigh and Staff Sergeant (SSG) C____ had multiple shrapnel wounds. They were treated in the truck until the air evacuation helicopter arrived. They were then taken to FOB Shank. b. Andrew M. D____, who related that on 6 September 2009, the applicant was on a dismounted patrol. As the gunner of the vehicle from which the applicant dismounted he could see when the applicant was hit by the IED. 7. The applicant’s declaration, dated 23 July 2015, states he was "…given a document about my treatment. They told me to make copies, but I couldn't. I was supposed to give the paperwork to Staff Sgt. N____, who was in charge of the medics. I haven't seen it since. I didn't know anything was wrong until…I didn't get the Purple Heart…I have contacted the battalion directly and talked to several organizations and a handful of people…" 8. His VA records show, "Service connection has been established for shell fragment wound, right thigh, with retained shrapnel based on the evidence of record showing he sustained a shell fragment wound to the right thigh during active duty military service." REFERENCES: Army Regulation 600-8-22 (Military Awards) states the: a. 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 by medical personnel, and the medical treatment must have been made a matter of official record. b. Afghanistan Campaign Medal is awarded to members who have served in direct support of Operation Enduring Freedom (OEF). The area of eligibility encompasses all the land area of the country of Afghanistan and all air spaces above the land area. The period of eligibility is on or after 11 September 2001 to a future date to be determined by the Secretary of Defense or the cessation of OEF. A bronze service star is authorized for wear with this medal for participation in each credited campaign. Approved designated Afghanistan campaigns are: * Consolidation II ? 1 October 2006 to 30 November 2009 * Consolidation III ? 1 December 2009 to 30 June 2011 c. The Global War on Terrorism Service Medal is authorized for award to: * Members of the Armed Forces of the United States who have participated in Global War on Terrorism operations outside of the areas of eligibility (AOE) designated for award of the Global War on Terrorism Expeditionary Medal, Afghanistan Campaign Medal, or Iraq Campaign Medal * All Soldiers on active duty, including Reserve Component Soldiers mobilized or National Guard Soldiers activated, on or after 11 September 2001 to a date to be determined having served 30 consecutive days DISCUSSION: 1. The available evidence shows the applicant was wounded as a result of enemy action on 6 September 2009, he was treated by medical personnel, and his treatment was documented in an official record. The reason he was not immediately awarded the Purple Heart is unknown, but the evidence now available supports a conclusion that his wound met the criteria for the award. 2. He earned a second bronze service star for wear on the Afghanistan Campaign Medal by serving in Afghanistan during two designated campaign periods. This is not shown on his DD Form 214. 3. His service also met the criteria for the Global War on Terrorism Service Medal, which is not shown on his DD Form 214. //NOTHING FOLLOWS// ABCMR Record of Proceedings AR20150000953 Enclosure 1 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS ABCMR Record of Proceedings (cont) AR20150015104 2 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 1 ABCMR Record of Proceedings (cont) AR20150015104 2 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 2