IN THE CASE OF: BOARD DATE: 10 October 2017 DOCKET NUMBER: AR20160001285 BOARD VOTE: ________ ________ ________ GRANT FULL RELIEF ________ ________ ________ GRANT PARTIAL RELIEF ________ ________ ________ GRANT FORMAL HEARING ___x____ ___x____ ___x____ DENY APPLICATION 2 Enclosures 1. Board Determination/Recommendation 2. Evidence and Consideration IN THE CASE OF: BOARD DATE: 10 October 2017 DOCKET NUMBER: AR20160001285 BOARD DETERMINATION/RECOMMENDATION: The evidence presented does not demonstrate the existence of a probable error or injustice. Therefore, the Board determined the overall merits of this case are insufficient as a basis to amend the decision of the ABCMR set forth in Docket Number AR20150001149 on 25 August 2015. __________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. IN THE CASE OF: BOARD DATE: 10 October 2017 DOCKET NUMBER: AR20160001285 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, the father of a deceased former service member (FSM), requests reconsideration of the previous Army Board for Correction of Military Records (ABCMR) decision promulgated in Docket Number AR20150001149 on 25 August 2015. Specifically, he requests the Purple Heart be awarded to his deceased son and a personal hearing before the Board. 2. The applicant states: a. He is requesting that the military amend his late son's service records. His son died while serving in Operation Iraqi Freedom (OIF). He is requesting that the Purple Heart (PH) and Combat Action Badge (CAB) be added to his son's military records. b. He was flown out to see his son before he passed, although he never regained consciousness. His son was given the PH and CAB; he was promised the orders for those awards would soon be sent to his home. He never received those orders and when he inquired as to why, he was informed that his son was never given those distinctions. c. He first noticed, when he attempted to gain his late son's orders for the awards he earned during his active duty, that the CAB and PH were absent from his records. He attempted to correct the error through his Congressman because, at the time, he was unaware of the ABCMR process. d. In January 2008, First Sergeant (1SG) C_ called to inform him that he had found his son's wallet in his tank. The 1SG said: * they were still looking for other items * his unit had promoted his son to the rank of specialist (SPC) and had awarded him the PH, CAB, National Defense Service Medal (NDSM), Army Good Conduct Medal (AGCM), and Bronze Star Medal (BSM) e. Later, 1SG C_ informed him that: * Washington had denied his son's promotion to the rank of SPC, as well as his award of the PH and etc.; the only things his son got at home were the AGCM and the BSM * he wasn't sure why, except his son was 13 days short of being due for promotion, even though his unit had approved it * his son was the driver on a tank recovery mission to tow out a tank that had been hit by an improvised explosive device (IED) off the bunker * they unhooked his son's tank from the crippled tank and hooked it up to 1SG C_'s tank, where he then towed it back to base * he wasn't there when his son went down * the last time he had seen his son and his tank, they seemed alright as far as he knew * it was too dangerous to airlift his son out because it would put other lives at risk * his son did a good job and was a good Soldier * he should be very proud of his son; he never complained, he always was thinking of his unit, and always talking about his father * his son deserved the rank of SPC, the PH, and etc. * he was very sorry for what happened but it wasn't his unit's fault f. If this is true, then Washington has dishonored his son. His son served his country and Washington has no right to dishonor his son this way. His son died "in any action with an opposing armed force of a foreign country in which the Armed Forces of the United States are or have been engaged." His son's vehicle was stopped due to an enemy placed IED; he was performing his duty until he no longer could survive. Please honor his late son's memory and service by granting these two awards, which he earned and gave his life to receive. 3. The applicant provides: * DA Form 1594 (Daily Staff Journal or Duty Officer's Log), dated 18 June 2007 * an extract of Standard Form (SF) 502 (Narrative Summary (Clinical Resume), dated 21 June 2007 * extracts of DA Forms 2823 (Sworn Statement) * a memorandum for record (MFR), Inpatient Medical Record Review * memorial ceremony program, dated 2 July 2007 * four letters of condolence * staff judge advocate letter, dated 20 September 2007 * battalion commander letter, dated 24 January 2008 * applicant's account of discussions with the FSM's co-workers * presidential and congressional correspondence CONSIDERATION OF EVIDENCE: 1. Incorporated herein by reference are military records that were summarized in the previous consideration of the applicant's case by the ABCMR in Docket Number AR20150001149 on 25 August 2015. 2. The applicant provides a new argument that was not previously considered by the Board. This new argument now warrants consideration. 3. The FSM enlisted into the Regular Army on 19 January 2006. He completed his initial entry training and was awarded military occupational specialty 19K (M1 Armor Crewman). 4. The FSM deployed to Iraq on or about 7 May 2007, in support of OIF, while assigned to Company C, 1st Battalion, 30th Infantry Regiment. 5. A DA Form 1594, dated 18 June 2007, shows continuous entries recorded by the 1st Battalion, 30th Infantry Regiment, Tactical Operations Center (TOC) duty officer. Pages 1 through 4 and the pages after page 5 are not available for review. Page 5 of the DA Form 1594 starts at Item Number 96 and ends at Item Number 120. Recorded among Items 96 – 120 is the following: * Item 96 – 1742, CP RP Falcon * Item 99 – 1800 hours, C6 enroute RC PB RED approximately 10-15 minutes out to take a heat casualty, ask us to coordinate with PB RED to have ice and water ready for heat casualty * Item 100 – 1805, Cobra XRAY sends 9 line for heat casualty * Item 105 – 1828, wheels down on heat stroke casualty * Item 106 – 1830, heat casualty private first class (PFC) Henry Burke [Byrd] (FSM) * Item 107 – 1831, wheels down PB RED medical evacuation (MEDEVAC) * Item 108 – 1835, wheels up PB RED MEDEVAC * Item 109 – 1841, wheels down 28th Combat Support Hospital (CSH) * Item 111 – 1927, PB RED sends 9 line MEDEVAC pertaining to an IED Wolf hit * Item 112 – 1927, Wolf hits IED at grid 491705, Ground EVAC to PB RED, as they were EVAC, saw one black car observing, so Wolf engaged them with 25 mm * Item 114 – 1931, PB RED call 9 line * Item 115 – 1938, situation report (SITREP) to casualty no laceration in and out of consciousness, little blood out of mouth. Passenger spine injured, possible head injury, small laceration on head, expected time of arrival (ETA) approximately 12 minutes en route, need 88 to recover vehicle, Husky damaged * Item 120 – 2000, D6 report contact with IED, Request attack air immediately, Infantry Brigade 1 vehicle hit IED 6. An SF 502, dated 21 June 2007, shows the FSM was admitted into the 28th Combat Support Hospital (CSH) on 18 June 2007, due to heat stroke. On 19 June 2017, the medical examiner noted the FSM remained hemodynamically (blood circulating) stable overnight. He was later evacuated by air from the 26th CSH to Balad, Iraq, following seizure activity. The medical examiner noted the FSM would need continued deep sedation until he reached Landstuhl regional Medical Center (LRMC) in Germany. The FSM's seizure activity was likely secondary to heat stroke and carried a favorable prognosis if his seizures could be controlled. 7. A DD Form 2064 (Certificate of Death (Overseas)) shows the FSM died at LRMC, on 24 June 2007, of an apparent heat injury. A final autopsy report shows the incident was an accident and the FSM progressively developed multi-organ system failure to include acute renal, liver and respiratory failure, and disseminated intravascular coagulation, and he progressed to brain death before being pronounced dead on 24 June 2007. 8. On 26 June 2007, the FSM was posthumously awarded the BSM and the AGCM (1st Award). 9. A DA Form 2173 (Statement of Medical Examination and Duty Status), dated 11 October 2007, shows the following: * the accident occurred on 18 June 2007 * the FSM was admitted and examined at the 28th CSH on 18 June 2007 * the FSM suffered from a heat injury that resulted in his death (on 24 June 2007) * the injury was incurred in the line of duty 10. There is no evidence within his military record that shows he was awarded the PH or CAB. 11. The FSM's record is void of evidence that shows his passing was the result of engaging an enemy or the result of hostile action. 12. The applicant provides: a. Extracts of sworn statements given by members of the FSM's unit who witnessed the incident that lead to his passing. The sworn statements corroborate the FSM being reported as a heat casualty after working to fix the track of a tank. The crew performed first aid as others coordinated a medical evacuation. None of the statements identify the FSM's injury, or that the situation resulted from enemy contact. b. A memorial service program for the FSM scheduled for 2 July 2007. The program shows the FSM was awarded the BSM, PH, CAB, and the NDSM. c. Four condolence letters from the FSM's chain of command, the Sergeant Major of the Army, and the Acting Secretary of the Army. A condolence letter written by the FSM's company commander on 11 July 2007, shows: (1) The Soldiers of Company C, including the FSM, gave every ounce of their energy to brave the 115 degree afternoon heat in a determined effort to defeat a very relentless and resourceful enemy. (2) At approximately 1500 hours on 18 June 2007, during combat operations, the FSM's tank was repositioning when it threw a track and became immobilized. The crew evaluated the situation and began to work on the tank. As the FSM worked on his tank in the intense heat, his tank commander was constantly checking to make sure he was drinking a sufficient amount of water and that he was okay. As the crew was completing the track reset, they were putting the tools away, and the medic noticed the FSM was not acting quite right and told him to sit down and take a break. (3) Within a matter of minutes, the FSM began showing signs of heat exhaustion, and the medic and other combat lifesavers in the platoon began prompt treatment of his symptoms by removing his gear and applying a cooling blanket. They immediately moved him to a nearby patrol base for treatment. When the FSM's condition failed to improve, the platoon sergeant called for an air evacuation, and shortly thereafter his condition worsened to heat stroke. At 1837 hours, the helicopter evacuated him to the Combat Support Hospital in Baghdad. At that time, the FSM was unconscious, and unfortunately he never recovered from the effects of his heat injury. (4) The command noted a full investigation had been conducted regarding the events surrounding the FSM's passing, and all the evidence and findings would be made available upon completion and review by the chain of command. d. Self-authored accounts by the applicant of alleged discussions with former members of the FSM's unit. The applicant noted discussions with unit personnel who noted that the FSM was a member of a team on the mission to recover a tank. While performing the recovery mission, their tank blew a track, and they began to repair it. The FSM suffered a heat injury as a result of repairing his tank. e. Congressional correspondence that shows the Office of the Chief of Legislative Liaison, Washington DC, replied to the applicant's representative that the FSM was not wounded or killed while engaged with the enemy. REFERENCES: 1. Army Regulation 15-185 (ABCMR) states ABCMR members will review all applications that are properly before them to determine the existence of an error or injustice; direct or recommend changes in military records to correct the error or injustice, if persuaded that material error or injustice exists and that sufficient evidence exists on the record. The ABCMR will decide cases on the evidence of record. It is not an investigative body. The ABCMR may, in its discretion, hold a hearing. Applicants do not have a right to a hearing before the ABCMR. The Director or the ABCMR may grant a formal hearing whenever justice requires. 2. Army Regulation 600-8-4 (Line of Duty Policy, Procedures, and Investigations) provides LOD investigations are conducted essentially to arrive at a determination of whether misconduct or negligence was involved in the disease, injury, death and, if so, to what degree. a. Depending on the circumstances of the case, an LOD investigation may or may not be required to make determination. In the case of injuries clearly incurred as a result of enemy action the LOD determination is presumed in the line of duty without an investigation. b. In all other cases of death or injury, except injuries so slight as to be clearly of no lasting significance (for example, superficial lacerations or abrasions or mild heat injuries), an LOD investigation must be conducted. 3. Army Regulation 600-8-22 (Military Awards) provides policy, criteria, and administrative instructions concerning military awards and decorations. a. The PH is awarded for a wound or wounds sustained in action against an enemy or as a result of hostile action. Substantiating evidence must be provided that verifies the wound resulted from hostile action, required treatment by medical personnel, and that treatment was made a matter of official record. (1) A wound is defined as an injury to any part of the body from an outside force or agent sustained under one or more of the conditions listed above. A physical lesion is not required. However, the wound for which the award is made must have required treatment, not merely examination, by a medical officer. Additionally, treatment of the wound will be documented in the Service member’s medical and/or health record. Award of the PH may be made for wounds treated by a medical professional other than a medical officer provided a medical officer includes a statement in the Service member’s medical record that the extent of the wounds was such that they would have required treatment by a medical officer if one had been available to treat them. (2) When contemplating an award of the PH, 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. (3) Examples of enemy-related injuries which clearly justify award of the PH include injury caused by vehicle or aircraft accident resulting from enemy fire. (4) Examples of injuries or wounds which clearly do not justify award of the PH are accidents, to include explosive, aircraft, vehicle, and other accidental wounding not related to or caused by enemy action. b. The requirements for the CAB are branch and MOS immaterial. An assignment to a combat arms unit, or a unit organized to conduct close or offensive combat operations or performing offensive combat operations, is not required to qualify for the CAB. However, it is not intended to award the CAB to all Soldiers who serve in a combat zone or imminent danger area. The Soldier must be performing assigned duties in an area where hostile fire pay or imminent danger pay is authorized. The Soldier must be personally present and actively engaging or being engaged by the enemy and performing satisfactorily in accordance with the prescribed rules of engagement. The Soldier must [not] be assigned or attached to a unit that would qualify the Soldier for the Combat Infantryman Badge or the Combat Medical Badge. Award of the CAB is authorized from 18 September 2001 to a date to be determined. Only one CAB may be awarded during a qualifying period. DISCUSSION: 1. The applicant contends his son should receive the PH and CAB for injuries resulting in the FSM's death during OIF. He contends his son's vehicle was stopped due to an enemy-placed IED, and that his son was performing his duty until he no longer could survive. 2. The FSM's medical record and casualty reports show he received treatment for a heat injury after fixing the track of a tank on 18 June 2007. After being evacuated to several levels of medical care, the FSM was evacuated out of theater to LRMC, where he later succumbed to the heat injury on 24 June 2007. 3. Evidence shows the FSM received the heat injury that led to his death while performing his duties in a combat area. However, none of the FSM's medical documents, sworn statements, or condolence letters show his heat injury was the result of action against a hostile enemy force; rather, it resulted from an accident. 4. An LOD investigation was conducted. In the case of injuries clearly incurred as a result of enemy action, the LOD determination is presumed in the line of duty without an investigation. In all other cases of death or injury, except injuries so slight as to be clearly of no lasting significance, an LOD investigation must be conducted. The LOD findings determined the FSM's injury was in the line of duty (not due to misconduct). 5. The applicant provided a DA Form 1594 that shows a continuous record of events reported to the TOC. The DA Form 1594 shows the entries related to the FSM's heat injury in Items 99 through 109, in which he was reported as a heat casualty, and his status was recorded through his arrival at the 28th CSH. Unfortunately, it appears the subsequent reports recorded on the DA Form 1594 were mistaken by the applicant as incidents related to his son. Entries on Items 110 through 120 recorded incidents reported that were not related to his son's heat injury. 6. The unit provided the applicant a copy of the FSM's memorial service program, which shows the FSM was awarded the BSM, PH, CAB, and NDSM. After an investigation was performed, the applicant was notified the circumstances surrounding the passing of his son did not meet the criteria for award of the PH and CAB, and no orders awarding the PH or CAB were issued. 7. The governing Army regulation provides that in order to be awarded the Purple Heart, a wound must be as a result of a hostile action, the wound must have required treatment by medical personnel, and the medical treatment must have been made a matter of official record. 8. The governing Army regulation provides that in order to be awarded the CAB, a Soldier must be performing assigned duties in an area where hostile fire pay or imminent danger pay is authorized. The Soldier must be personally present and actively engaging, or be engaged by, the enemy and performing satisfactorily in accordance with the prescribed rules of engagement. 9. The applicant's request for a personal appearance hearing was carefully considered. By regulation, an applicant is not entitled to a hearing before the ABCMR. Hearings may be authorized by a panel of the ABCMR or by the Director of the ABCMR. In this case, the evidence of record and independent evidence provided by the applicant are sufficient to render a fair and equitable decision at this time. //NOTHING FOLLOWS// ABCMR Record of Proceedings AR20150000953 Enclosure 1 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS ABCMR Record of Proceedings (cont) AR20150014846 2 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 1 ABCMR Record of Proceedings (cont) AR20160001285 9 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 2