IN THE CASE OF: BOARD DATE: 15 December 2015 DOCKET NUMBER: AR20150004195 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 for an injury he received on 3 May 2012 in Afghanistan. 2. The applicant states, in effect, the award of the Purple Heart was disapproved for the injuries he received during the heat of battle at Command Outpost (COP) Monti, Afghanistan. His injury was caused by indirect enemy fire, while on top of the mortar pit, gun fire and a rocket flew over their heads causing him to take cover in the pit. In his efforts to seek cover he received the injury to his leg. It was not due to gross negligence. His leg injury would not have happened if the enemy had not attacked and he would still be in the Army serving his country. 3. The applicant provides: * Headquarters, 4th Infantry Division, Fort Carson, CO, Orders CR-026-1254, dated 26 January 2012 * Enlisted Record Brief (ERB) * Standard Form (SF) 600 (Chronological Record of Medical Care), dated 3 May 2012 * his sworn statement, dated 27 January 2014 * Installation Management Command, Headquarters, U.S. Army Garrison, Fort Carson, Orders 254-0032, dated 11 September 2014 * DD Form 214 (Certificate of Release or Discharge from Active Duty) with a separation date of 26 November 2014 * three sworn statements from Soldiers present on 3 May 2012 * a letter, dated 11 February 2015, from the U.S. Army Human Resources Command (HRC) CONSIDERATION OF EVIDENCE: 1. On 1 October 2008, he enlisted in the Regular Army for 3 years and 18 weeks. On 11 March 2010 he immediately reenlisted for 5 years. 2. On 11 February 2009, he was assigned to Headquarters and Headquarters Company, 1st Battalion, 12th Infantry, at Fort Carson. 3. The Overseas/Deployment Combat Duty section of his ERB shows he deployed to Afghanistan from: * 28 May 2009 - 28 May 2010 * 10 March - 4 December 2012 4. The applicant provided an SF 600 that shows he was treated on 3 May 2012 at the COP Monti Clinic for left knee sprain. The provider is shown as RR. a. He complained of left knee pain an hour after diving off a 4 foot hesco (type of barrier) and landing on his knee while reacting to indirect fire. His pain was 4/10 when resting and 6/10 when moving. He stated the pain started on the lateral side of his knee and radiated down to the bottom of the knee and over to the medial side. Nothing made the pain better, but moving his knee around made it worse. There was no history of a prior injury. He stated the knee gave out on him secondary to the pain. He did not hear or feel any popping, and no immediate swelling or discoloration was noted. b. Physical findings showed his left knee motion was abnormal. He could not bend his knee past 90 degrees without pain. Pain was elicited by motion. He felt pain during the range of motion test as his leg was moved around. Tenderness was observed on ambulation. c. It was determined he had a left knee sprain. On examination of the knee no instability was noted. All special tests were negative. He was prescribed 500 milligrams of Naproxen (used to reduce swelling and to treat pain) twice daily for 2 weeks and was instructed to take it even if he was not feeling any pain. He was also given a knee brace. d. The disposition showed he was released without limitations. The injury was determined to be work related, with onset on 3 May 2012, and the cause was listed as "battle injury." 5. The applicant provided a sworn statement, dated 2 December 2013, from Specialist (SPC) H. He treated the applicant on 3 May 2012 for injuries sustained while receiving indirect fire on the morning of 3 May 2012 at COP Monti. During that period a mortar round came close to the mortar pit where the applicant was located. After the all clear, the applicant was brought to the aid station for severe pain in his left knee. He told them after the first round hit he had jumped off of a hesco and slammed his knee into the ground. There was no swelling at the time or signs of a severe injury. The physician assistant (PA) examined him and found the area tender and still not swollen. After a while it did start to swell and the applicant came to the aid station repeatedly for knee pain. After deployment pain persisted and since then he has been seen multiple times and has had one surgery. 6. On 27 January 2014, the applicant made a sworn statement concerning the circumstances of his injury to his left knee. a. His injury occurred on 3 May 2012 at COP Monti. He was attached to Company B, Mortars. He, along with SPCs H and J, were cleaning the 120mm mortar systems. b. Suddenly they were under indirect fire. It was either a mortar round or a recoilless missile that flew over their mortar pit which caused him to do what he was trained to do, take cover. He yelled out to everyone to take cover and he jumped into the mortar pit. He lost control and fell to his knees then onto his stomach. When everyone was told to get into the mortar bunker to put their gear on, he was immobile. He was yelling that he couldn't move. When he tried to stand up, he collapsed; he was unable to put weight on his leg. c. He couldn't walk or put pressure on his left leg. He elevated his leg and waited about two hours to go to the medical station. The medics did all types of testing to see what was wrong with his leg. He was told at the time and for the rest of the deployment there was not much else they could do and nothing was wrong. d. When he got back to Fort Carson he saw a physical therapy physician assistant (PA) and a magnetic resonance imaging (MRI) was conducted. He was told his anterior cruciate ligament (ACL) was completely torn. He had to undergo a high tibia osteotomy before they could fix his ACL. 7. Installation Management Command, Headquarters, U.S. Army Garrison, Fort Carson, Orders 254-0032, dated 11 September 2014, transferred him to the transition point at Fort Carson for discharge with severance pay. Additional instructions included the statements: a. "Disability is based on injury or disease received in the line of duty as a direct result of armed conflict or caused by an instrumentality of war and incurred in the line of duty during a period of war as defined by law"; and b. "Disability resulted from a combat related injury as defined in 26 USC 104 (Title 26 United States Code section 104)." 8. On 26 November 2014, he was discharged by reason of disability, severance pay, combat zone (enhanced). The specific disability he was discharged for was not available for review. 9. The applicant provided two additional sworn statements from former Soldiers. a. In a sworn statement, dated 21 January 2014, SPC H stated while he, the applicant, and SPC J and H were outside cleaning their 120mm mortars on 3 May 2012 an incoming mortar round impacted near their location causing all of them to take cover. The applicant jumped into the mortar pit seeking cover. In the process of getting back inside the applicant complained he could not stand due to a painful leg. When yelling for help SGT C came running outside and "fireman carried" the applicant back inside due to the injury he sustained keeping him from walking. For days and months after the incident the applicant kept saying his leg was hurting. b. In a sworn statement, dated 21 January 2014, SPC J stated that on 3 May 2012, he, the applicant, and SPC H were cleaning the 120mm mortar system. When they started taking indirect fire they all jumped to the ground with their heads down. The applicant was on top of some hesco barriers and the mortar pit was filled with a layer of rocks. After the mortar rounds landed they ran back to their building to put their plate carriers on. However, the applicant was still laying in the mortar pit. SGT C had to run out and carry him back to the building. SGT C set him down and he couldn't walk. From that day forth he complained of leg pain and limped everywhere he went. 10. On 11 February 2015, HRC disapproved his request for award of the Purple Heart for injuries he received while deployed in support of Operation Enduring Freedom. HRC stated award of the Purple Heart is limited to members of the Armed Forces of the United States who have been wounded or killed as a direct result of enemy action. The diagnosis and treatment in the medical document provided did not meet the criteria for award of the Purple Heart. While his injury was an unfortunate event, a request for the award of the Purple Heart has several regulatory requirements not met by the documentation provided. 11. Army Regulation 600-8-22 (Military Awards) provides that the Purple Heart is awarded for a wound sustained 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, and the medical treatment must have been made a matter of official record. A wound is defined as an injury to any part of the body from an outside force or agent sustained as a result of hostile action. 12. Secretary of the Army (SA) Directive 2011-07 (Awarding of the Purple Heart), dated 18 March 2011, aligned Army policy for award of the Purple Heart with Department of Defense policy. a. A medical officer is defined as a physician with officer rank. b. A medical professional is defined as a civilian physician or a physician extender. Physician extenders include nurse practitioners, PAs, and other medical professionals qualified to provide independent treatment. Basic corpsmen and medics (such as combat medics) are not physician extenders. c. A wound is defined as an injury to any part of the body from an outside force or agent. A physical lesion is not required. However, the wound for which the award is made must have required treatment, not merely examination, by a medical officer. Treatment of the wound shall be documented in the Service member's medical and/or health 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. 13. Title 26, USC, section 104 states gross income for a taxable year does not include amounts receive by an individual as disability income as a direct result of a terroristic or military action. Section 692 defines military action as any military action involving the Armed Forces of the U.S. and resulting from violence or aggression against the U.S. or any of its allies. DISCUSSION AND CONCLUSIONS: 1. His separation orders contained statements that his separation was based on disability from an injury or disease received in the line of duty as a direct result of armed conflict or caused by an instrumentality of war and incurring in line of duty during a period of war as defined by law and that the disability did result from a combat related injury as defined in Title 26 U.S. Code, section 104. However, this determination is for the purposes of Federal tax exemption status and possible preference eligibility status when applying for Federal employment. This determination does not, nor is it intended to, necessarily show a wound or injury was a result of hostile action. 2. The SF 600 indicates the provider was RR. However, there is no indication that RR was a physician as defined in Army (SA) Directive 2011-07. 3. In his statement, dated 2 December 2013, SPC H stated he treated the applicant and the PA examined him. There is no statement that the extent of his injury was such that it would have required treatment by a medical officer if one had been available to treat him. 4. His injury was sustained as a result of him diving for cover in the mortar pit. This does not show his injury was received as a result of an outside force or agent. BOARD VOTE: ________ ________ ________ 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 that 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. ABCMR Record of Proceedings (cont) AR20150004195 3 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1 ABCMR Record of Proceedings (cont) AR20150004195 6 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1