IN THE CASE OF: BOARD DATE: 17 December 2015 DOCKET NUMBER: AR20150005688 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, in effect, that: a. He was diagnosed by 3 military doctors and 2 civilian doctors with traumatic brain injury (TBI) as a result of an improvised explosive device (IED) blast while serving in Iraq. b. On the night of the blast, he was serving at a combat outpost (COP) and was diagnosed with a concussion by the platoon medic. He had problems remembering things, was sensitive to light, and had a bad headache. He was given aspirin and rested until it was time to go out on the next patrol about 8 hours later. c. Two days later, he was screened at the forward operating base (FOB) by the Physician Assistant (PA) and was cleared of any concussion. When he returned stateside, he was reevaluated and was told to go to the TBI Clinic at Fort Benning for treatment. 3. The applicant provides the following: * a memorandum from U.S. Army Human Resources Command (HRC), Fort Knox, Kentucky, dated 19 December 2014, subject: Award of the Purple Heart for (Applicant) * DA Form 4187 (Personnel Action), dated 13 May 2014, requesting award of the Purple Heart with enclosures: * a one-page narrative for award of the Purple Heart * two witness statements * 3 Standard Forms (SF) 600 (Chronological Record of Medical Care), dated 27 June 2008, 23 July 2008, and 8 August 2008 * 56 pages of military medical documents from various clinics at Martin Army Community Hospital, Fort Benning, Georgia, dated from 15 May 2008 through 27 April 2009 * Enlisted Record Brief (ERB), dated 13 May 2014 * Permanent Orders 45-1, issued by Headquarters, 3rd Infantry Division and Fort Stewart, Georgia on 14 February 2007 (deployment orders) * Permanent Orders 45-8, issued by Headquarters, 3rd Infantry Division and Fort Stewart, Georgia on 14 February 2007 (deployment orders) 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. Following previous service in the USMC, the applicant enlisted in the Regular Army on 22 September 1998 in the rank/grade of private first class (PFC)/E-3. He was awarded military occupational specialty (MOS) 11B (Infantryman). 3. He was assigned to Company B, 1st Battalion, 15th Infantry Regiment, 3rd Infantry Division, Fort Benning, Georgia on or about 1 March 2007. 4. Permanent Orders 45-8 and 45-1, issued by Headquarters, 3rd Infantry Division and Fort Stewart, Georgia on 14 February 2007, assigned/attached his unit to 1st Cavalry Division in support of Operation Iraqi Freedom (OIF), effective on or about 9 March 2007. 5. DA Form 4187, provided by the applicant, submitted by the Commander, Joint Readiness Training Center and Fort Polk to Commander, HRC on 8 October 2014, recommended award of the Purple Heart to the applicant for wounds /injuries he received in action that were caused directly by the enemy. This packet contained several enclosures. According to this request, the qualifying incident took place on 3 August 2007 in Ma'dain Province, Iraq as a result of an IED attack. As a result, the applicant sustained a concussion/TBI. a. The applicant provides a self-authored statement to HRC, dated 13 May 2014, subject: Support Narrative for Award of Purple Heart. In a timeline format, he states: (1) On 3 August 2007, while on a mounted combat patrol in the Ma'dain Province, Iraq he sustained a concussion as a result of an IED detonation. He submits witness statements from his Platoon Leader, 1LT J.J. and the Bradley (fighting vehicle) Gunner, SPC J.F. (2) On 3 August 2007, the platoon medic screening revealed symptoms of a concussion. On 5 August 2007, he followed up with the PA at the FOB. He states that at the COP, a concussive force and subsequent debris field was due to the IED's shockwave coming over the Bradley's turret. He was positioned in eye level defilade in the vehicle's commander's hatch when the detonation occurred to the right of the tracks and directly in-line with his position. No PA or medical doctor was available for immediate diagnosis. The medic at the COP instructed him to see the battalion PA as soon as he returned to the FOB. He returned stateside to Fort Benning on 1 May 2008. (3) On 15 May 2008, he took a TBI questionnaire at Fort Benning. Colonel (COL) DKC conducted an interview at the TBI clinic and diagnosed him with "TBI w/symptoms." (4) On 23 July 2008, he started receiving treatment for headaches, hearing loss, insomnia, anxiety as well as occupational therapy for memory loss. (5) On 10 November 2009, he conducted a permanent change of station from Fort Benning, Georgia to Fort Polk, Louisiana and continued receiving treatment. (6) On 19 November 2009, his conditions worsen with onset of severe migraines with resulting dizziness, blurry vision, and nausea. His supervisor recommended he go back to the TBI clinic for re-evaluation. The next day he was scheduled to go through the annual SRP (Soldier Readiness Processing) and there he received a referral to be seen by the TBI clinic. The physician confirmed his TBI and prescribed several medications to treat his worsening migraines with scheduled follow-up appointments to regulate his medications and monitor his overall health. b. Two witness statements were included in the award packet. One was from his platoon leader and the other from his former gunner. These statements essentially state: * he was in the lead vehicle of a convoy which was in a near ambush/IED attack * his former gunner stated he seemed dazed, confused, and his speech was slightly out of whack * his platoon leader stated he suffered a concussion during the attack c. One enclosure contained 56 pages of military medical documentation from Martin Army Community Hospital, Fort Benning, Georgia. These medical documents are dated sporadically from 15 May 2008 to 8 August 2009. These documents reveal the following: (1) On 15 May 2008, he was seen by the Readiness Processing Center by DR. D.D. for a post-deployment examination. It states a TBI screening was performed; however, does not list any diagnosis. (2) On 27 June 2008, he was examined after taking a TBI questionnaire and the primary diagnosis was memory lapses or loss. Follow-up medication and treatment was discussed. (3) On 23 July 2008, he was evaluated by the TBI clinic and his chief complaint was headache, irritability, and insomnia. His primary diagnosis was concussion with no loss of consciousness, headache syndromes, memory lapses or loss, insomnia, feeling nervous, and hearing loss. He was given a computer tomography (CT) scan. (4) On 8 August 2008, he was followed-up and given the results of his CT scan. This CT scan showed his brain morphology appears to be normal with no evident mass, all areas appear unremarkable and without evidence of abnormality. (5) On approximately ten other dates, between November 2008 and April 2009, he was seen by medical authorities for a variety of symptoms with diagnoses of post-concussion syndrome, insomnia, muscle spasms, headache syndrome, and pain management. 6. A review of his records reveals that on 12 November 2014, an informal physical evaluation board (PEB) was convened at Fort Sam Houston, Texas. a. The PEB determined he was unfit for the following conditions: lumbar spine degenerative disc disease; cervical spine, degenerative joint disease; migraines including migraine variants; right hip strain, with symptoms/signs of impingement syndrome; limitation of flexion, fight hip strain with impingement syndrome; right knee strain, medial tibial stress syndrome; limitation of extension, right hip strain with impingement syndrome; and left hip strain, which together prevented him from performing the duties required of his grade and military specialty. b. The PEB determined he was fit for the following conditions: TBI; hearing loss; central vertigo and other conditions. 7. The PEB recommended he was physically unfit, rated his condition(s) under the VA Schedule of Rating Disabilities (VASRD) with an 80% disability rating, and recommended his permanent retirement by reason of disability. He concurred with the findings and recommendations on 14 November 2014, waived a formal hearing in his case, and did not request reconsideration of his VA ratings. The PEB's findings and recommendation were approved on 8 December 2014. 8. The Awards and Decorations Branch at HRC disapproved his request for award of the Purple Heart on 19 December 2014. In their denial memorandum, the Chief, Soldier Programs and Services Division informed the applicant that based on a review of his medical record, there was insufficient evidence to support a diagnosis and/or treatment of an injury caused by enemy action. While this was an unfortunate event, a request for award of the Purple Heart has several regulatory requirements that were not met by the documentation provided. He was advised to seek further relief at the ABCMR. 9. He was retired on 3 March 2015, in accordance with Army Regulation 635-40 (Physical Evaluation for Retention, Retirement, or Separation), chapter 4, by reason of permanent disability. His retirement orders state he had completed 20 years, 9 months, and 18 days for pay purposes. His DD Form 214 (Certificate of Release or Discharge from Active Duty) shows he was awarded or authorized the: * Army Commendation Medal (6th Award) * Army Achievement Medal (7th Award) * Army Good Conduct Medal (5th Award) * National Defense Service Medal (2nd Award) * Iraq Campaign Medal w/ campaign star * Global War on Terrorism Expeditionary Medal * Global War on Terrorism Service Medal * Noncommissioned Officer Professional Development Ribbon (2nd Award) * Army Service Ribbon * Overseas Service Ribbon * USN Sea Service Deployment Ribbon (2nd Award) * Valorous Unit Award * Meritorious Unit Commendation * USN Meritorious Unit Commendation * Army Superior Unit Award (2nd Award) * NATO Medal * Combat Infantryman Badge * Expert Infantryman Badge * Air Assault Badge * Basic Marksmanship Qualification Badge * Expert Marksmanship Qualification Badge w/ Rifle Bar 10. A review of his records reveal there was no medical documentation by a medical professional or medical officer reporting a loss of consciousness (LOC), limitation of duty following the incident, a recovery period(s) directed by a medical professional, pain mediation (acetaminophen, aspirin, etc.), referral to neurologist or neuropsychologist, or rehabilitation required to treat the injury. 11. There is also no documentation by the platoon medic of a Military Acute Concussion Evaluation (MACE) or any further treatment. 12. Army Regulation 600-8-22 (Military Awards) prescribes Army policy, criteria, and administrative instructions concerning individual and unit military awards. a. 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. b. A wound is defined as an injury to any part of the body from an outside force or agent sustained under one or more of the conditions listed above. 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. Additionally, treatment of the wound will 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. c. When contemplating an award of the Purple Heart, the key issue that 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 the sole justification for award. d. Examples of enemy-related injuries that clearly justify award of the Purple Heart include concussion injuries caused as a result of enemy-generated explosions resulting in a mild TBI or 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. e. Examples of injuries or wounds that clearly do not justify award of the Purple Heart include post-traumatic stress disorders, hearing loss and tinnitus, mild TBI or concussions that do not either result in loss of consciousness or restriction from full duty for a period greater than 48 hours due to persistent signs, symptoms, or physical finding of impaired brain function. f. When recommending and considering award of the Purple Heart for a mild TBI or concussion, the chain of command will ensure that both diagnostic and treatment factors are present and documented in the Soldier’s medical record by a medical officer. 13. Army Directive 2011-07 (Awarding the Purple Heart), dated 18 March 2011, provides clarifying guidance to ensure the uniform application of advancements in medical knowledge and treatment protocols when considering recommendations for award of the Purple Heart for concussions (including mild TBI and concussive injuries that do not result in a loss of consciousness). The directive also revised Army Regulation 600-8-22 to reflect the clarifying guidance. a. Approval of the Purple Heart requires the following factors among others outlined in Department of Defense Manual 1348.33 (Manual of Military Decorations and Awards), Volume 3, paragraph 5c: wound, injury or death must have been the result of an enemy or hostile act, international terrorist attack, or friendly fire; and the wound for which the award is made must have required treatment, not merely examination, by a medical officer. Additionally, treatment of the wound shall be documented in the Soldier’s medical record. b. 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 Soldier’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. c. A medical officer is defined as a physician with officer rank. The following are medical officers: an officer of the Medical Corps of the Army, an officer of the Medical Corps of the Navy, or an officer in the Air Force designated as a medical officer in accordance with Title 10, United States Code, Section 101. d. A medical professional is defined as a civilian physician or a physician extender. Physician extenders include nurse practitioners, physician assistants and other medical professionals qualified to provide independent treatment (for example, independent duty corpsmen and Special Forces medics). Basic corpsmen and medics (such as combat medics) are not physician extenders. e. When recommending and considering award of the Purple Heart for concussion injuries, the chain of command will ensure that the criteria are met and that both diagnostic and treatment factors are present and documented in the Soldier’s medical record by a medical officer. f. The following nonexclusive list provides examples of signs, symptoms or medical conditions documented by a medical officer or medical professional that meet the standard for award of the Purple Heart: (1) Diagnosis of concussion or mild traumatic brain injury; (2) Any period of loss or a decreased level of consciousness; (3) Any loss of memory of events immediately before or after the injury; (4) Neurological deficits (weakness, loss of balance, change in vision, praxis (that is, difficulty with coordinating movements), headaches, nausea, difficulty with understanding or expressing words, sensitivity to light, etc.) that may or may not be transient; and (5) Intracranial lesion (positive computerized axial tomography (CT) or magnetic resonance imaging (MRI) scan). g. The following nonexclusive list provides examples of medical treatment for concussion that meet the standard of treatment necessary for award of the Purple Heart: (1) Limitation of duty following the incident (limited duty, quarters, etc); (2) Pain medication, such as acetaminophen, aspirin, ibuprofen, etc., to treat the injury; (3) Referral to a neurologist or neuropsychologist to treat the injury; and (4) Rehabilitation (such as occupational therapy, physical therapy, etc.) to treat the injury. h. Combat theater and unit command policies mandating rest periods or downtime following incidents do not constitute qualifying treatment for concussion injuries. To qualify as medical treatment, a medical officer or medical professional must have directed the rest period for the individual after diagnosis of an injury. 14. The MACE is a standardized mental status examination that is used to evaluate mild TBI, or concussion, in theater. This screening tool was developed to evaluate a person with a suspected concussion and is used to identify symptoms of a mild TBI. Future MACE scores can be used to determine if the patient’s cognitive function has improved or worsened over time. To be most effective, all service members experiencing concussion, or mild TBI, should have the MACE administered within the first 24 hours of the event in order to make certain that proper care is administered in a timely fashion. The MACE, in combination with a medical exam, can be used to help determine if it is safe for a service member to return to duty. DISCUSSION AND CONCLUSIONS: 1. The applicant's request for award of the Purple Heart was carefully considered. 2. He contends he was riding in the lead vehicle of a mounted combat patrol on or about 3 August 2007, when that vehicle hit an IED. He was evaluated by the platoon medic as having a concussion and given aspirin. He rested until his next patrol some 8 hours later. After returning to the FOB, approximately two days later, he was examined by the PA and was cleared of any concussion. 3. Solely using aspirin does not meet the standard of treatment necessary for the award of the Purple Heart in accordance with applicable Army regulations and directives. There is no documentation by the platoon medic of any further treatment given. 4. He provides several witness statements from individuals who were in vehicles in the mounted convoy, who indicated that the applicant's vehicle hit an IED and he seemed dazed, confused, and suffered a concussion. However, these statements regarding symptoms observed are from a layperson's perspective. 5. None of the available evidence indicates the applicant suffered a concussion or TBI so disabling as 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 per applicable Army regulations and directives in order to meet the requirements of award of the Purple Heart. 6. The Awards and Decorations Branch at HRC disapproved his request for award of the Purple Heart on 19 December 2014. In their denial memorandum, the Chief, Soldier Programs and Services Division informed the applicant that based on a review of his medical record, there was insufficient evidence to support a diagnosis and/or treatment of an injury caused by enemy action. While this was an unfortunate event, a request for award of the Purple Heart has several regulatory requirements that were not met by the documentation provided by the applicant. 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) AR20130004321 3 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1 ABCMR Record of Proceedings (cont) AR20150005688 11 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1