SAMR-RB 17 September 2018 MEMORANDUM FOR Case Management Division, US Army Review Boards Agency, 251 18th Street South, Suite 385, Arlington, VA 22202-3531 SUBJECT: Army Board for Correction of Military Records Record of Proceedings for, AR20160004006 1. Reference the attached Army Board for Correction of Military Records Record of Proceedings, dated 18 January 2018, in which the Board members unanimously recommended denial of the applicant's request. 2. I have reviewed the findings, conclusions, and Board member recommendations. I find there is sufficient evidence to grant relief. Therefore, under the authority of Title 10, United States Code, section 1552, I direct that all Department of the Army Records of the individual concerned be corrected by awarding him the Purple Heart for wounds received on 09 November 2004 and adding the Purple Heart to his DD Form 214. 3. Request necessary administrative action be taken to effect the correction of records as indicated no later than 17 January 2019. Further, request that the individual concerned and counsel, if any, as well as any Members of Congress who have shown interest be advised of the correction and that the Army Board for Correction of Military Records be furnished a copy of the correspondence. BY ORDER OF THE SECRETARY OF THE ARMY: Encl CF: BOARD DATE: 18 January 2018 DOCKET NUMBER: AR20160004006 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 BOARD DATE: 18 January 2018 DOCKET NUMBER: AR20160004006 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 Army Board for Correction of Military Records set forth in Docket Number AR20080001771, dated 22 April 2008. _____________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: 18 January 2018 DOCKET NUMBER: AR20160004006 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 award of the Purple Heart and correction of his DD Form 214 (Certificate of Release or Discharge from Active Duty) for the period ending 12 March 2005 to show this award. 2. The applicant states administrative personnel neglected their duties. 3. The applicant provides: * DD Form 214 * DA Form 1156 (Casualty Feeder Report), dated 9 November 2004 * DA Form 2823 (Sworn Statement), dated 15 December 2004 * Memorandum for Record (MFR) authored by Lieutenant Colonel * (LTC) J_ S_, Commander, 660th Transportation Company, dated 28 August 2015 * Orthopedic Progress Notes authored by Dr. M_ K_, dated 9 June 2005 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 AR20080001771 on 22 April 2008. 2. The applicant provides a new argument that warrants consideration by the Board. 3. The applicant enlisted in the U.S. Army Reserve (USAR) on 22 September 1999 and held military occupational specialty 88M (Motor Transport Operator). 4. On 7 December 2003, he was ordered to active duty from the USAR in support of Operation Iraqi Freedom (OIF). He served in Kuwait/Iraq from 7 February 2004 to 6 February 2005. 5. On 12 March 2005, he was honorably released from active duty due to completion of required active service and transferred back to the control of the USAR. His DD Form 214 for the period ending 12 March 2005, does not show he was awarded or authorized the Purple Heart. This document shows he completed 1 year, 3 months, and 6 days of creditable active service of which 1 year was foreign service. It further shows he was awarded or authorized: * Army Reserve Components Achievement Medal * National Defense Service Medal * Global War On Terrorism Expeditionary Medal * Global War On Terrorism Service Medal * Armed Forces Reserve Medal with “M” Device * Army Service Ribbon * Driver and Mechanic Badge with “W” Device 6. The applicant provides a DA Form 2823, dated 15 November 2004, where he states: a. On 9 November 2004, he was on a convoy with Staff Sergeant (SSG) T_ on Alternate Supply Route (ASR) Phoenix in the warlock. SSG T_ was the driver and he was a passenger. His vehicle was the second in the convoy when he heard over the radio that an Iraqi National (enemy combatant) was standing in the desert on the passenger side of the road. As he looked out and saw the enemy combatant he looked away to let SSG T_ know he could visually see him. At that time he heard a loud explosion and felt a concussion. b. It was at that time SSG T_ stopped the vehicle and asked if he was okay. He stated his right foot was injured and his legs were pinned below the collapsed dashboard. As he dislodged himself he realized the impact had caused his door to jam and the vehicle was on fire. He was caught by the wires from the radio and SSG T_ pulled him from the vehicle by his flak vest. He was moved to the rally point where he was stabilized and prepared for transport on a medical evacuation. 7. In addition he provides: * an incomplete DA Form 1156, dated 9 November 2004, showing he was wounded or injured in action on 9 November 2004 * Orthopedic Progress Notes, dated 9 June 2005, authored by Dr. M_ K_, that show he was treated for bilateral knee pain and right foot pain * Discharge Summary notes, dated 16 February 2004, (prior to his event) from Medical Treatment Clinic 4 * Serious Incident Report (SIR), from 7th Transportation Battalion, dated 9 November 2004 that shows he was attacked by an improvised explosive device (IED) and sustained a broken right foot * he was medevaced 8. He also provides an MFR, dated 28 August 2015, authored by LTC S_, then the company commander, which states: a. He was the commander of 660th Transportation Company from 5 September 2003 to 15 July 2005 and he is providing this statement to verify the circumstances that apply to the injuries the applicant sustained as a direct result of enemy action. On 9 November 2014, the applicant’s vehicle was struck by an IED that resulted in injuries to his right foot. He was medically evacuated. b. Attempts have been made to locate the medical reports, but as of 28 August 2015, no records have been located. He provided this statement based on an SIR, dated 9 November 2004, as well as his recollection of the applicant's condition at the time in lieu of medical records the applicant has been unable to obtain. 9. His official military records contain: * Casualty status report, dated 10 November 2004, that shows the applicant was on a convoy when his vehicle was hit by an IED; he sustained blunt trauma to both legs, rule out fracture to left knee and right ankle * Post-deployment health assessment (PDHA), dated 9 February 2005 * DD Form 2808 (Report of Medical Examination), dated 25 October 2005, that reflects on page 3, block 76, an entry for foot pain post explosion * DA Form 3349 (Physical Profile), dated 8 November 2005, that shows in block 1 (Medical Condition), an entry for status post explosion injury – bilateral knee weakness, back pain, and right foot pain 10. Congressional correspondence, dated 9 January 2006, shows the U.S. Army Human Resources Command (HRC), Military Awards Branch, responded to a Member of Congress concerning the applicant’s award of the Purple Heart by stating: a. The wounds or injuries received must have required treatment by medical personnel and been made a matter of official record. Official documentation reflecting medical treatment following the incident must be approved. b. HRC also noted the applicant visited the Emergency Medical Technician (EMT) after his vehicle hit an IED on 9 November 2004. However, the medical documentation does not show he sustained any injuries that necessitated medical treatment, as required in the criteria for the award. 11. Again, on 22 February 2006, the applicant’s Member of Congress contacted HRC, Military Awards Branch, on behalf of the applicant to obtain the Purple Heart for injuries received during his service in OIF. a. On 14 March 2006, HRC responded by stating there was nothing more they could add to the previous response, dated 27 January 2006. HRC noted the applicant visited the EMT after his vehicle was hit by an IED on 9 November 2004; however, without medical documentation that shows the applicant received medical treatment for wounds received as a result of enemy action, award of the Purple Heart could not be authorized. b. In addition, if the applicant should feel the decision was unfair or unjust he had the right to appeal to the ABCMR. Furthermore, the applicant was informed that an application to the Board does not necessarily mean the application would be favorably considered. The Board will adjudicate each case on its merit, and the burden of proof remains with the applicant. 12. The applicant applied to the ABCMR for award of the Purple Heart and on 22 April 2008, his request was disapproved. The Board cited the following: a. Although the applicant provided a DA Form 1156 which states he was wounded or injured in action on 9 November 2004 by hostile action, the document was not signed by medical or any other authorized personnel. His name is not listed on the Iraq casualty roster. b. In the absence of orders for the Purple Heart, eyewitness statements, or other evidence of record showing the applicant was injured or treated for wounds as a result of hostile action in Iraq, the incomplete DA Form 1156 provided by the applicant was not sufficient as a basis for award of the Purple Heart. REFERENCES: 1. Army Regulation (AR) 600-8-22 in effect at the time, states the 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. Award of the Purple Heart 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. AR 15-185 (ABCMR) prescribes the policies and procedures for correction of military records by the Secretary of the Army, acting through the ABCMR. a. Paragraph 2-9 contains guidance on the burden of proof. It states, in pertinent part, that the ABCMR begins its consideration of each case with the presumption of administrative regularity, which is that what the Army did was correct. b. The ABCMR is not an investigative body and decides cases based on the evidence that is presented in the military records provided and the independent evidence submitted with the application. The applicant has the burden of proving an error or injustice by a preponderance of the evidence DISCUSSION: 1. 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. The ABCMR will decide cases on the evidence of record; it is not an investigative body. 2. The criteria for the Purple Heart require the submission of substantiating evidence to verify 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. a. When there is a lack of clear evidence an injury was caused by hostile action and there is a lack of documentation of subsequent medical treatment, other sources may be used to establish entitlement to the Purple Heart. Here, the applicant's service records contain the documents listed below, which are inconclusive: * Casualty status report, dated 10 November 2004, shows the applicant was diagnosed with blunt trauma to both legs rule out fracture to left knee and right ankle * PDHA, dated 9 February 2005, shows he was evaluated post- deployment – nearly 3 months after his incident * DD Form 2808, dated 25 October 2005, page 3, block 76, has an entry for foot pain post explosion * DA Form 3349, block 1 (Medical Condition), dated 8 November 2005, has an entry for status post explosion injury – bilateral knee weakness, back pain, and right foot pain b. This necessitates the review of other sources or evidence to support an injury as a result of hostile action. The available evidence does not show the criteria for award of the Purple Heart has been met for the following reasons: * some of his medical records are available for review with this case but do not reflect an injury as a result of hostile action and/or treatment * his service records are void of orders that show he was awarded the Purple Heart * there is no conclusive evidence in his service personnel records that shows he was treated for such wounds c. In addition, he provided an incomplete DD Form 1156 that shows he was wounded in action. However, his casualty status report shows he was returned to duty. d. With respect to the applicant’s commander’s statement, it corroborates the events. It can be presumed he was medically evacuated for injuries to his right foot subsequent to an IED attack. However, the absence of medical treatment and documentation makes it difficult to establish that he met the requirements for the Purple Heart. To make a favorable recommendation in this case, the Board must determine that a preponderance of the evidence shows the applicant met the criteria for award of the Purple Heart. //NOTHING FOLLOWS// ABCMR Record of Proceedings AR20150000953 Enclosure 1 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS ABCMR Record of Proceedings (cont) AR20160004006 2 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 1 ABCMR Record of Proceedings (cont) AR20160004006 3 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 2