IN THE CASE OF: BOARD DATE: 20 August 2020 DOCKET NUMBER: AR20200000238 APPLICANT REQUESTS: award of the Purple Heart Medal for injuries sustained while deployed. APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: * DD Form 149 (Application for Correction of Military Record) * Photographs * Standard Form 600 (Chronological Record of Medical Care) FACTS: 1. The applicant did not file within the three year time frame provided in Title 10, United States Code, section 1552(b); however, the ABCMR conducted a substantive review of this case and determined it is in the interest of justice to excuse the applicant's failure to timely file. 2. The applicant states that while deployed in Iraq in 2005 his injuries sustained were overlooked. He contests that during this deployment a rocket entered through the ceiling of the building that he was in and exploded within his work area. Even though he wasn’t physically hit, he inadvertently inhaled the asbestos that was in the air causing him to lose consciousness and his uvula had become swollen resulting in the requirement for its removal at the hospital. He believes that he is entitled to being awarded the Purple Heart because he lost a part of his body from a foreign object that almost ended his life. He now has a heart condition and has suffered from three strokes. 3. A review of the applicant’s available service records reflects that following: a. On 9 February 1989 he enlisted in the United States Army Reserve (USAR). b. On 21 November 1994 (Order# R-11-007699) he was accessed into the Active Guard Reserve (AGR) program and ordered to active duty on 12 February 1995. c. He was deployed to Iraq from 8 January 2004 through 1 February 2005 (refer to DD Form 214 - Remarks) in support of Operation Iraqi Freedom. d. On 8 March 2005 (Order R-03-57100) he was reassigned to the 245th Maintenance Company as a Motor Sergeant. e. On 25 July 2013 (Order UL-206-0003) he was deployed to Afghanistan in Support of Operation Enduring Freedom from 14 August 2013 through 22 August 2014. f. On 18 June 2019 (Order 169-0004) he was reassigned to the United States Army Transition Point pending discharge. g. On 30 June 2019 he was honorably discharged and placed on the retired list effective 1 July 2019. His issued DD Form 214 reflects 2 years and 23 days of foreign service. His awards consist of the: * Army Commendation Medal * Army Achievement Medal (2nd award) * Army Good Conduct Medal (5th award) * Army Reserve Component Achievement Medal (2nd award) * National Defense Service Medal (w/ Bronze Service Star) * Global War on Terrorism Expeditionary Medal * Global War on Terrorism Service Medal * Army Reserve Component Overseas Training Ribbon * Armed Forces Reserve Medal (w/ Bronze Hourglass) * NATO Medal h. His records are void of additional documentation or witness statements associated with the event in which he states he was injured. 4. The applicant provides the following: a. Photographs of what appear to be a damaged cabinet with a caption indicating that the damage was the result of an explosion which later caused his uvula to require removal. An additional photo contains a Soldier sitting in what appears to be a warehouse. b. Standard Form 600 (Chronological Record of Medical Care) reflective of patient care provided at the Troop Medical Center – Iraq to the applicant on three separate occasions (23 July 2004, 27 July 2004 and 24 January 2005). (1) On 23 July 2004 the document reflects that he was located within a warehouse where an explosion had occurred. He complained of ingesting gas of unknown origin. He was treated and returned to duty with no limitations. (2) On 27 July 2004 the document reflects that he was involved in a mortar attack 3 nights prior when he inhaled smoke resulting in coughing and hyperventilation resulting in his inability to inhale deeply. He was treated and released with no limitations. (3) On 24 January 2005 he complained of tightness within his chest. He also provided that his throat had been swollen and sore for about a month. He was again returned to duty without limitations with the recommendation to see a pulmonologist to have a sleep study performed in order to rule out the possibility of obstructive sleep apnea. 5. Army Regulation 600-8-22 (Military Awards) prescribes Army policy, criteria, and administrative instructions concerning individual and unit military awards. 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. Treatment of the wound will be documented in the member’s medical and/or health record. BOARD DISCUSSION: 1. After reviewing the application and all supporting documents, the Board found the requested relief is not warranted. 2. The Board found insufficient evidence indicating the applicant was wounded as a result of hostile action to a degree that required treatment by medical personnel. The Board agreed that the surgery he had later to remove his uvula does not provide a basis for awarding him the Purple Heart. The Board determined the available records do not support awarding the applicant the Purple Heart. BOARD VOTE: Mbr 1 Mbr 2 Mbr 3 : : : GRANT FULL RELIEF : : : GRANT PARTIAL RELIEF : : : GRANT FORMAL HEARING :X :X :X DENY APPLICATION 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. 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. REFERENCES: 1. Title 10, United States 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 ABCMR to excuse an applicant's failure to timely file within the 3 year statute of limitations if the Army Board for Correction of Military Records (ABCMR) determines it would be in the interest of justice to do so. 2. Army Regulation 600-8-22 (Military Awards) prescribes Army policy, criteria, and administrative instructions concerning individual and unit military awards. The Purple Heart (PH) 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. Treatment of the wound will be documented in the member’s medical and/or health record. Award may be made for a wound treated by a medical professional other than a medical officer provided a medical officer includes a statement in the member’s medical record that the severity of the wound was such that it would have required treatment by a medical officer if one had been available to provide treatment. When contemplating eligibility for the Purple Heart, the two critical factors commanders must consider is the degree to which the enemy or hostile force caused the wound, and was the wound so severe that it required treatment by a medical officer. a. Some examples of enemy-related actions which justify eligibility for the PH are as follows: (1) Injury caused by enemy bullet, shrapnel, or other projectile created by enemy action. (2) Injury caused by enemy emplaced trap, mine or other improvised explosive device. (3) Injury caused by chemical, biological, or nuclear agent released by the enemy. (4) Injury caused by vehicle or aircraft accident resulting from enemy fire. (5) Smoke inhalation injuries from enemy actions that result in burns to the respiratory tract. (6) Concussions (and/or mild traumatic brain injury) caused as a result of enemy-generated explosions that result in 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 b. The application will include the following documentation pertaining to the wound and inflicting force: 1. DD Form 214 (Certificate of Release or Discharge from Active Duty) 2. Deployment orders. 3. DA Form 4037 (Officer Record Brief)/enlisted records brief (ERB)/DA Form 2– 1 (Personnel Qualification Record). 4. One - page narrative describing the qualifying incident and the conditions under which the member was injured or wounded. 5. Statements from at least two individuals, other than the proposed recipient, who were personally present, observed the incident, and have direct knowledge of the event. Alternatively, other official documentation may be used to corroborate the narrative. 6. Casualty report (if available). 7. SF 600 (Medical Record - Chronological Record of Medical Care). 3. Army Regulation (AR) 15-185 (ABCMR) paragraph 2-9 states 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. //NOTHING FOLLOWS// ABCMR Record of Proceedings (cont) AR20200000238 4 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1