BOARD DATE: 24 October 2018 DOCKET NUMBER: AR20170004742 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: 24 October 2018 DOCKET NUMBER: AR20170004742 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 for correction of the records of the individual concerned. ______________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: 24 October 2018 DOCKET NUMBER: AR20170004742 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 to award him the Purple Heart (PH) and the Bronze Star Medal (BSM). 2. The applicant states he was injured in June, August and October 2005 by improvised explosive devices (IEDs) which resulted in his traumatic brain injury (TBI). 3. The applicant provides: * 9 photographs * Department of Veterans Affairs (VA) Form 21-4138 (Statement in Support of Claim) 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 AR20100028165 on 26 May 2011. 2. The applicant provides a document he provided to the VA and photographs which were not previously reviewed by the ABCMR. Therefore, they are considered new evidence which warrants consideration by the Board. 3. The applicant enlisted in the Regular Army on 14 January 2004. 4. The applicant's Official Military Personnel File (OMPF) does not contain any evidence he was recommended for or awarded the BSM or PH for his service in Operation Iraqi Freedom (OIF). However, his OMPF does include Permanent Orders 275-28 issued by the Commander, 4th Brigade Combat Team, 3rd Infantry Division on 2 October 2005, which awarded him the Army Commendation Medal (ARCOM) for service during OIF for the period 29 January 2005 to 15 January 2006. 5. Item 18 (Remarks) of the applicant's DD Form 214 (Certificate of Release or Discharge from Active Duty) shows he served in Iraq from 7 January 2005 to 14 January 2006. 6. The applicant was honorably released from active duty on 13 January 2007 after completing 3 years of net active service during this period. The DD Form 214 he was issued does not include the PH or BSM in the list of earned awards in item 13 (Decorations, Medals, Badges, Citations, and Campaign Ribbons Awarded or Authorized). The form shows he was awarded or authorized the: * Army Commendation Medal * National Defense Service Medal * Global War on Terrorism Expeditionary Medal * Global War on Terrorism Service Medal * Army Service Ribbon * Overseas Service Ribbon * Combat Action Badge 7. On 8 August 2011, his DD Form 214 was corrected by DD Form 215 (Correction to DD Form 214) to add the Army Good Conduct Medal. 8. The applicant provides 9 photographs, none of which identify the applicant. The applicant further provides a statement to the VA from a former comrade, D_____ S. C______ dated 23 September 2014, who claims the applicant was assigned as patrol gunner in Iraq while he was assigned as a radio telephone operator performing duties in the company tactical operations center. The former comrade states: a. During June or July, the applicant was the gunner in the third vehicle of an IED strike which destroyed the second vehicle. The applicant was visibly shaken upon returning to base. b. Later that summer, the applicant removed two Soldiers from a vehicle which was partially submerged in a canal due to the road giving way beneath their vehicle. Upon returning to base, the applicant was shaking badly and expressed that the event was one of the most terrifying things he had ever witnessed. c. Within a week in September or October, the applicant was involved in two separate instances while on patrol of being involved in an IED strike. The applicant was visibly shaken and distraught and was told that he may want to request a stand down for a couple of patrols in order to collect himself or talk with someone. REFERENCES: 1. Army Regulation 600-8-22 (Military Awards) states: a. The BSM is awarded in time of war for heroism and for meritorious achievement or service, not involving participation in aerial flight, in connection with military operations against an armed enemy, or while engaged in military operations involving conflict with an opposing armed force in which the United States is not a belligerent party. As with all personal decorations, formal recommendations, approval through the chain of command, and announcement in orders are required. b. The PH is awarded for a wound sustained while in action against an enemy or as a result of hostile action. The PH may be awarded for concussion injuries caused as a result of enemy generated explosions: mild TBI or a concussion severe enough to cause either loss of consciousness or restriction from full duty due to persistent signs, symptoms, or clinical finding, or impaired brain function for a period greater than 48 hours from the time of the concussive incident. When contemplating this award authorization officials must take into consideration the degree to which the enemy caused the injury. 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. 2. Army Regulation 15-185 (ABCMR) prescribes the policies and procedures for correction of military records by the Secretary of the Army, acting through the ABCMR. Paragraph 2-9 contains guidance on the burden of proof. It states that the ABCMR begins its consideration of each case with the presumption of administrative regularity, which is that what the Army did was correct. 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 evidence of record shows the applicant was awarded the ARCOM for his overall service during OIF. There is no evidence present which shows he was recommended for or awarded the BSM. 2. The governing Army regulation states that for personal decorations, which include the BSM a formal recommendation, approval through the chain of command, and announcement in orders are required. 3. The PH differs from all other decorations in that an individual is not "recommended" for this decoration; rather, the individual is entitled to it upon meeting specific criteria. Award of the PH requires a Soldier to have been injured or wounded by hostile action, the wound must have required treatment by medical personnel, and the medical treatment for wounds or injuries received in action must have been made a matter of official record. 4. The PH may be awarded for concussion injuries caused as a result of enemy generated explosions: mild TBI or a concussion severe enough to cause either loss of consciousness or restriction from full duty due to persistent signs, symptoms, or clinical finding, or impaired brain function for a period greater than 48 hours from the time of the concussive incident. //NOTHING FOLLOWS// ABCMR Record of Proceedings AR20150000953 Enclosure 1 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS ABCMR Record of Proceedings (cont) AR20170004742 2 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 1 ABCMR Record of Proceedings (cont) AR20170004742 2 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 2