BOARD DATE: 10 April 2018 DOCKET NUMBER: AR20160006638 BOARD VOTE: Mbr 1 Mbr 2 Mbr 3 :X :X :X GRANT FULL RELIEF : : : GRANT PARTIAL RELIEF : : : GRANT FORMAL HEARING : : : DENY APPLICATION 2 Enclosures 1. Board Determination/Recommendation 2. Evidence and Consideration I BOARD DATE: 10 April 2018 DOCKET NUMBER: AR20160006638 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: a. He is requesting the award of the Purple Heart for the wounds he sustained from enemy actions on 5 May 2004 while deployed in support of Operation Iraqi Freedom (OIF). He received the Silver Star for his combat actions and was later discharged from the Army in 2007 (sic). b. After returning to his forward operating base (FOB) following an engagement with enemy insurgents, he was treated for burns on his hand. Due to follow-on recovery operations and the priority for medical support going to more seriously injured Soldiers, his treatment was never formally documented in his medical records and the medics who treated him could not be located. c. He was able to obtain statements in support of his Purple Heart request from his wartime chain of command, supervisors, and some fellow Soldiers. 3. The applicant provides: * Tab 1 – application * Tab 2 – witness statement, 9 March 2016 * Tab 3 – witness statement, 28 October 2015 * Tab 4 – witness statement, 10 November 2015 * Tab 5 – DA Form 2823 (Sworn Statement), 4 March 2015 * Tab 6 – Department of Veterans Affairs (VA) Form 21-4138 (Statement in Support of Claim), dated 30 April 2015 * Tab 7 – VA Form 21-4138, dated 10 April 2015 * Tab 8 – DA Form 4980-4 (Silver Star Certificate) with citation and narrative * Tab 9 – DD Form 214 (Certificate of Release or Discharge from Active Duty) for the period ending 5 January 2010 * Tab 10 – News article, dated 19 February 2015 * Tab 11 – Purple Heart denial notification from the U.S. Army Human Resources Command (HRC), dated 4 February 2016 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 9 April 2003. 3. The applicant deployed in support of OIF on three occasions: from 16 March 2004 through 15 March 2005, from 4 November 2005 through 14 October 2006, and from 10 June 2008 through 8 June 2009. 4. Permanent Orders 192-002, issued by HRC on 10 July 2004, show the applicant was awarded the Silver Star for gallantry in action on 5 May 2004. The narrative justification accompanying the Silver Star, in pertinent part, shows he retrieved a machine gun, minus its handguards, and engaged enemy forces while providing suppressive fire from an unprotected position. He suffered burns to his hand from firing the machine gun without protective handguards. 5. The applicant was honorably discharged on 5 January 2010. The DD Form 214 he was issued does not show he was awarded the Purple Heart. 6. The applicant's available record is void of evidence that shows the burns to his hand required treatment by a medical officer that was later made a matter of official record. 7. The applicant's record is void of evidence that shows he was recommended for, denied, or approved for award of the Purple Heart prior to his discharge. 8. The applicant provides: a. Witness statements: (1) Tab 2 – a witness statement from Lieutenant General (LTG) S_ L_ who was the applicant's brigade commander at the time of the incident. LTG L_ asserts he was treated for the burns on his hand when they returned to the FOB. However, medical support was prioritized and given to more seriously injured Soldiers, which led to his treatment not being formally documented in his medical records. In addition, they could not locate the medic who treated him. (2) Tab 3 – a witness statement in which the writer describes the applicant's injury as a burn to his left hand. The writer noticed he received ointment and bandages in a treatment room and follow-up treatment was conducted at the unit level. (3) Tab 4 – a witness statement in which the writer notes the applicant had burns to his hand that was not serious/severe, but required some attention. He further states he does not know the severity of the burns he received, only that the burns were a result of the action. He does not know why the treatment was not made a permanent part of his record when it should have been. He could only assume medical personnel were focused on the severely wounded in the medical facility. (4) Tabs 5 thru 7 – witness statements that further support the applicant's hand was burned while firing a weapon without its handguards, and he received medical treatment for burns when they returned to the FOB. b. A news article titled "Unsung Heroes: The Private Who Burned His Hands to Save His Fallen Brothers." The news article (Tab 10) describes the incident in which the applicant's hand was burned as he fired the machinegun. c. A letter from HRC, dated 4 February 2016, which notified the applicant his request for award of the Purple Heart was disapproved. This letter (Tab 11) states that after a thorough review of the information he provided them, the award of the Purple Heart for this particular event did not meet the statutory guidance in accordance with Army regulation 600-8-22 (Military Awards), paragraph 2-8e. The letter notes that the wound must have required treatment by a medical officer and that treatment must have be documented in his records. Since there was no medical record for this event, the award could not be approved. REFERENCES: Army Regulation 600-8-22 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. a. When contemplating an award of the Purple Heart the key issue 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. b. Examples of enemy-related injuries which clearly justify award of the Purple Heart are as follows: * Injury caused by enemy bullet, shrapnel, or other projectile created by enemy action * Injury caused by enemy-placed trap or mine * Injury caused by enemy-released chemical, biological, or nuclear agent * Injury caused by vehicle or aircraft accident resulting from enemy fire c. Examples of injuries or wounds which clearly do not justify award of the Purple are as follows: * Self-inflicted wounds, except when in the heat of the battle and not involving gross negligence * Abrasions and lacerations (unless of a severity to be incapacitating) * Bruises (unless caused by direct impact of the enemy weapon and severe enough to require treatment by a medical officer) * Soft tissue injuries (for example, ligament, tendon, or muscle strains, sprains, and so forth) * First degree burns (burns that affect the outer layer of skin, causing the skin to be red and painful but without blisters; long-term damage is rare (e.g. mild sunburn)) d. It is not the intent that such a strict interpretation, of the requirement for the wound or injury to be caused by direct result of hostile action, be taken that it would preclude the award being made to deserving personnel. Commanders must also take into consideration the circumstances surrounding an injury, even if it appears to meet the criteria. DISCUSSION: 1. The applicant requests award of the Purple Heart. He contends his hand was treated for burns resulting from action against the enemy; however, his treatment was not made a permanent part of his medical record. 2. The applicant deployed in support OIF on 16 March 2004. On 5 May 2004, he engaged enemy forces with a machine gun minus its handguards resulting in burns to his hand. He subsequently received a Silver Star for his actions, and the narrative accompanying the award states he received burns to his hand during the action. 3. The applicant contends he received medical treatment for the burns to his hand; however, the treatment was not made a permanent part of his medical record. He also contends medical personnel prioritized injured Soldiers after the incident, which possibly contributed towards the absence of the medical treatment in his record. 4. The available records are void of evidence that shows he received medical treatment for a wound received resulting from actions against enemy forces. In addition, the applicant did not provide any medical documentation that shows he was treated for burns to his hand following the incident. 5. The Silver Star narrative and witness statements show he was, in fact, injured in combat and received medical treatment. Such an assumption is warranted to avoid the injustice of denying him a possibly entitled Purple Heart solely based on the lack of medical documents. 6. The governing regulation provides 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. Furthermore, the award approval authority must take into consideration 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. 7. The applicant provided witness statements in which the writers provided first- hand eyewitness accounts of the enemy action that caused his burns to his hand; he burned his hand while firing a machinegun that lacked handguards. The statements do not clearly describe the severity of his burns. However, one witness noted that he was treated with ointment and bandages. 8. The governing regulation provides examples of enemy-related injuries which clearly justify and do not justify award of the Purple Heart. If the incident itself is determined to meet the Purple Heart criteria, then the severity (first degree, second degree, or third degree) of the burns he received on his hand must be considered. The available records do not specify to what degree his hand was burned. BOARD DATE: 10 April 2018 DOCKET NUMBER: AR20160006638 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 the applicant the Purple Heart for wounds received in connection with military operations against a hostile enemy on 5 May 2004. b. amending his DD Form 214 for the period ending 5 January 2010 by adding the Purple Heart. 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. //NOTHING FOLLOWS// ABCMR Record of Proceedings (cont) AR20160006638 2 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS ABCMR Record of Proceedings (cont) AR20160006638 3 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 2