IN THE CASE OF: BOARD DATE: 19 September 2018 DOCKET NUMBER: AR20160018508 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: 19 September 2018 DOCKET NUMBER: AR20160018508 BOARD DETERMINATION/RECOMMENDATION: The Board determined the evidence presented is insufficient to warrant amendment of the ABCMR's decision in Docket Number AR20150013396, dated 13 September 2016. The evidence presented does not demonstrate the existence of a probable error or injustice. ____________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: 19 September 2018 DOCKET NUMBER: AR20160018508 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 previous request for award of the Purple Heart for injuries incurred during conditions simulating war. 2. The applicant states it is confirmed that some of his records are missing and presumed destroyed. The law clearly states for records that were lost or destroyed while in government custody, the Board's duty is to assist and it is obligated to search for other forms of records to support a Veteran's application. a. He cites three Department of Veterans Affairs (VA) cases that were liberally adjudicated (presumably through the VA). b. During his service he performed combat simulated training, which resulted in his disabilities. There is a causal relationship between the simulated war games, training exercises, alerts, tactical exercises, airborne operations, live fire training exercise, hand to hand combat training, bayonet training, and so forth leading to his disabilities. c. He states he was mobilized and deployed to Iraq where his previous injuries were aggravated. He sought medical attention for his aggravated injuries. He states the records to support his contention he deployed and was injured were lost or destroyed. Therefore, he should not be punished for the neglect of government officials. He sustained an injury while performing foreign service, he received medical treatment, and now, because of lost records, he should receive the benefit of the doubt by awarding him the Purple Heart. 3. The applicant provides – * multiple copies of DA Form 2807-1 (Report of Medical History) dated 3 May 2005 * multiple copies of DD Form 2808 (Report of Medical Examination) dated 3 May 2005 * multiple civilian medical records * DD Form 2860 (Claim for Combat-Related Special Compensation) * VA Form 21-0781 (VA Statement in Support of Claim for Service Connection for Post-Traumatic Stress Disorder (PTSD) dated 23 March 2015 * VA Form 9 (VA Appeal to Board of Veteran’s Affairs) dated 31 July 2015 * VA Form 21-4138 (VA Statement in Support of Claim) dated 31 July 2015 * multiple VA medical records * excerpts from news articles pertaining to the Purple Heart and the Fort Hood Purple Heart recipients 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 AR20150013396 on 13 September 2016. 2 With prior service in the United States Marine Corps (USMC), the applicant enlisted in the Army Reserve on 1 June 2001 in the rank of sergeant first class (SFC). 3. On 25 November 2001, the applicant entered active duty in an active Army Guard/Reserve (AGR) status. He was ordered to active duty for 3 years. His duty location shown on his orders was New Orleans, LA. There is no evidence in his record he deployed to Iraq. The Defense Finance and Accounting Service (DFAS) reviewed his Master Military Pay Account and verified he did not receive hostile fire pay/imminent danger pay for service in Iraq. 4. On 21 April 2004, he received a letter notifying him he was eligible for retired pay at age 60 because he had completed the required years of qualifying Reserve service. 5. On 6 August 2004, his initial AGR orders were extended by 6 months and 8 days establishing his new release from active duty date as 1 June 2005. 6. On 20 May 2005, the U.S. Army Human Resources Command issued him orders attaching him to the U.S. Army Transition Point, Fort Polk, LA effective 1 June 2005 for the purpose of transitioning off active duty. 7. On 1 June 2005, he was honorably released from active duty upon completion of his required service. He was issued a DD Form 214 (Certificate of Release or Discharge from Active Duty) showing he completed 3 years, 6 months and 7 days of active service this period. He performed no foreign service during this period and item 18 (Remarks) does not contain a deployment location and dates of deployment. It does contain the fact he served in the USMC Reserve from 16 February 1978 to 31 January 2000. 8. On 13 September 2016, the Board of the ABCMR denied his request for the Purple Heart for injuries incurred during conditions simulating war. He had petitioned the U.S. Army Human Resources Command, Awards and Decorations Branch prior to applying to the ABCMR. The Chief, Awards and Decorations Branch denied his request because his request did not meet the criteria for the Purple Heart. 9. The applicant’s evidence includes both his military and civilian medical records, his VA application and subsequent appeals, and numerous excerpts from news articles concerning the Purple Heart. a. He completed DA Form 2807-1 on 3 May 2005 showing he had the following medical conditions and was under the care of a physician: * breathing problems, bronchitis and wheezing * ear, nose and throat problems * painful shoulder, elbow or wrist [surgery, in line of duty] * recurrent back pain * numbness and tingling sensation * foot troubles * frequent indigestion or heartburn * headaches, dizziness, fainting spells * anxiety or panic attacks b. His DA Form 2808, dated 3 May 2005, shows he was physically examined by a medical provider who did not identify any medical defects or diagnoses that would disqualifying him from continued service. c. Within his VA Form 21-0781 he reports two incidents contributed to his behavioral health conditions. The first was in basic training when a trainee he knew committed suicide on the rifle range. He stated he receives medical treatment for his PTSD symptoms from this incident. The second incident occurred in May 2004 during combat related live fire simulation exercises. His left shoulder injury was aggravated when he fell approximately 15 feet. He sustained other injuries from the fall. He further claims he was "wounded in action." d. Reviewing his VA medical records, he is permanently disabled and receives medical treatment for the following conditions: * sleep apnea syndrome, 50 percent * hypertensive vascular disease, 20 percent * degenerative arthritis of the spine, 20 percent * intervertebral disc syndrome, 10 percent * paralysis of sciatic nerve, 10 percent * malignant muscle growth, 0 percent * eczema, 0 percent e. Reviewing his civilian medical records – * he had left knee arthroscopy surgery with partial lateral meniscectomy in 1976 * right knee scope and debridement with grade 3 chondromalacia of the patella in 2000 f. News articles from "The Killeen Daily Herald: Military" stating the personnel who were victims of the Fort Hood shooting by Nidal Hasan were awarded numerous medals including the Purple Heart. g. Two articles defining the Purple Heart award criteria and how it was initially established by General George Washington during the Revolutionary War. h. Excerpts from DD Form 2860 wherein he highlighted the paragraph defining "in the performance of duty under conditions simulating war." [This form is used to request combat-related special compensation.] REFERENCES: 1. The Purple Heart was established by General George Washington at Newburgh, NY on 7 August 1782 during the Revolutionary War. It was reestablished by the President of the United States per War Department General Orders Number 3 in 1932. It was awarded in the name of the President of the United States to any member of the Armed Forces or any civilian national of the United States who, while serving under competent authority in any capacity with one of the U.S. Armed Services after 5 April 1917, died or sustained wounds as a result of hostile action. Effective 19 May 1998, award of the Purple Heart is limited to members of the Armed Forces of the United States. 2. Army Regulation 600-8-22 (Military Awards) states, in pertinent part: a. The Purple Heart is awarded to any member who, while serving under competent authority in any capacity with one of the Army Services, has been wounded or killed or who has died or may hereafter die after being wounded: (1) In any action against an enemy of the United States; (2) 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; (3) While serving with friendly foreign forces engaged in an armed conflict against an opposing armed force in which the United States is not a belligerent party; (4) As a result of an act of any such enemy of opposing armed forces; (5) As a result of an act of any hostile foreign force; (6) After 23 March 1973, as a result of an international terrorist attack against the United States or a foreign nation friendly to the United States, recognized as such an attack by the Secretary of the Army, or jointly by the Secretaries of the separate armed services concerned if persons from more than one service are wounded in the attack; (7) After 28 March 1973, as a result of military operations while serving outside the territory of the United States as part of a peacekeeping force; or (8) Pursuant to the National Defense Authorization Act for Fiscal Year 2015, a member on active duty who was killed or wounded in an attack by a foreign terrorist organization in circumstances where the member is targeted due to the member's status as a member of the Armed Forces. An attack by an individual or entity will be considered to be an attack by a foreign terrorist organization if the individual or entity was in communication with the foreign terrorist organization before the attack and the attack was motivated by the foreign terrorist organization. b. For award of the Purple Heart 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 records. 3. Army Regulation 15-185 (Army Board for Correction of Military Records) prescribes the policies and procedures for correction of military records by the Secretary of the Army, acting through the ABCMR. The regulation provides that 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. DISCUSSION: There is no provision of law or regulation authorizing the Purple Heart to members of the Armed Forces who are injured or who incur disabilities as defined by the VA based on simulating war games, field training exercise, tactical exercises, etc. The long established criteria for the Purple Heart states a member of the Armed Force who is wounded or killed by hostile forces including terrorist organizations and who receives documented medical treatment for their wounds should be considered for this award. //NOTHING FOLLOWS// ABCMR Record of Proceedings AR20150000953 Enclosure 1 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS ABCMR Record of Proceedings (cont) AR20160018508 2 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 1 ABCMR Record of Proceedings (cont) AR20160018508 6 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 2