IN THE CASE OF: BOARD DATE: 1 September 2016 DOCKET NUMBER: AR20150014240 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: 1 September 2016 DOCKET NUMBER: AR20150014240 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. IN THE CASE OF: BOARD DATE: 1 September 2016 DOCKET NUMBER: AR20150014240 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 that the command in theater would not assist him with receiving the award. 3. The applicant provides: * Self-authored statement * Deployment orders, dated 17 May 2011 * Three DA Forms 2823 (Sworn Statements), dated 24 February 2012 * Memorandum, Subject: Permanent Release from Theater of Operations - Mission Complete, dated 3 April 2012 * Physical Therapy/Occupational Therapy Initial Evaluation, dated 26 September 2012 * Enlisted Record Brief, dated 26 March 2013 * Photographs printed from Facebook * Letters from U.S. Army Human Resources Command (HRC), Ft. Knox, KY * Numerous medical documents 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. The applicant enlisted in the Regular Army on 30 August 2006 and continued to serve on active duty through reenlistments. He served in Afghanistan from 6 June 2011 to 3 April 2012. 4. He provided a self-authored statement in support of his request for the Purple Heart. On 24 February 2012, he was gunner in the third gun truck in a four gun truck convoy. The first gun truck missed a turn on the highway and the convoy stopped to allow truck to back up and make the turn. As the convoy came to a stop, a Taliban fighter ran across the highway and threw a grenade at his turret. The grenade exploded between the third and fourth gun trucks as he ducked inside the vehicle. After the explosion, the convoy was instructed to head to "ACS 4" for vehicle and crew battle field damage assessments. 5. He provided sworn statements from himself and two other Soldiers who reiterated the events that occurred on 24 February 2012 in Afghanistan; however, the statements from his fellow Soldiers did not indicate that the applicant sustained an injury. 6. He provided a medical evaluation report, dated 26 September 2012, that indicates he injured his left elbow by ducking to avoid a grenade in Afghanistan on 24 February 2012. He underwent surgery on 1 August 2012 for intramuscular ulnar nerve transportation (a procedure performed to move the ulnar nerve from behind the medial epicondyle (elbow) to a suitable position where it is not irritated or pinched by this bony prominence). 7. The Army discharged the applicant on 13 November 2013 under the provisions of Army Regulation 635-40 (Physical Evaluation for Retention, Retirement, or Separation), chapter 4 by reason of permanent physical disability. He completed 7 years, 2 months, and 14 days active military service. His DD Form 214 issued for this period does not show the Purple Heart. 8. He provided numerous medical documents dated from October 2012 to April 2014 that show he received treatment for adjustment disorder with anxiety and depressed mood. 9. In a letter, dated 1 July 2014, the Chief, Awards and Decorations Branch, HRC, Fort Knox, responded to a congressional representative concerning the applicant's request for the Purple Heart. The official stated that their office was unable to verify the applicant's entitlement to the Purple Heart. The Defense Casualty Records for Operation Enduring Freedom did not list the applicant's name. The official listed the requirements to process a request the Purple Heart: a one-page narrative with specific date of incident; eyewitness statements from at least two individuals who were personally present, observed the incident and have direct knowledge of the event; and military medical documentation from immediately after or close to the event describing treatment by a medical officer of injuries caused by the enemy. The official further stated that the injury may have been treated by a medical professional other than a medical officer, provided that a medical officer included a statement indicating the injury would have required treatment by a medical officer if one had been available at the time. 10. In a letter, dated 7 August 2014, the Chief, Awards and Decorations Branch, HRC, Fort Knox, KY responded again to a congressional representative regarding the applicant's request for the Purple Heart. The official stated that their office was unable to authorize the applicant the Purple Heart. The Purple Heart is awarded to Soldiers for wounds or injuries received as a direct result of enemy action. The official stated that, based on the documentation provided, the applicant injured his elbow during a grenade attack; however, this injury was sustained as a result of taking cover and not as a direct result of the grenade. REFERENCES: 1. Army Regulation 600-8-22 (Military Awards) states 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 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. a. When contemplating an award of this decoration, 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 prerequisite, but is not sole justification for award. b. Examples of enemy-related injuries which clearly justify award of the Purple Heart are as follows: (1) Injury caused by enemy bullet, shrapnel, or other projectile created by enemy action, (2) Injury caused by enemy-placed trap or mine, (3) Injury caused by enemy-released chemical, biological, or nuclear agent, (4) Injury caused by vehicle or aircraft accident resulting from enemy fire, (5) Concussion injuries caused as a result of enemy-generated explosions and (6) Mild traumatic brain injury 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. c. Examples of injuries or wounds which clearly do not justify award of the PH are as follows: (1) Disease not directly caused by enemy agents. (2) Accidents, to include explosive, aircraft, vehicular, and other accidental wounding not related to or caused by enemy action. (3) Self-inflicted wounds, except when in the heat of battle and not involving gross negligence. (4) Post traumatic stress disorders. (5) Airborne (for example, parachute/jump) injuries not caused by enemy action. (6) Mild traumatic brain injury 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. (7) Abrasions and lacerations (unless of a severity to be incapacitating). (15) Bruises (unless caused by direct impact of the enemy weapon and severe enough to require treatment by a medical officer) (8) Soft tissue injuries (for example, ligament, tendon or muscle strains, sprains, and so forth). 2. Military Personnel (MILPER) Message Number 11-125, issued by Human Resources Command, Fort Knox, dated 29 April 2011, informed all members of the Army that the Secretary of the Army had approved Army Directive 2011-07 (Awarding the Purple Heart). The directive 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 traumatic brain and concussive injuries that do not result in a loss of consciousness). Diagnosis of concussion or mild TBI are 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. This message does not change the standards for award of the Purple Heart for concussion injuries. This policy is retroactive to 11 September 2001. DISCUSSION: 1. By regulation, in order to award the Purple Heart it is necessary to establish the Soldier was wounded in action, the wound required treatment by a medical officer, and the treatment record must have been made a matter of official record. The evidence of record indicates the applicant injured his left elbow by ducking to avoid a grenade in Afghanistan on 24 February 2012. 2. The Awards and Decorations Branch reviewed the Defense Casualty Records for Operation Enduring Freedom and did not find the applicant's name. 3. The sworn statements provided by the applicant were carefully considered; however, these statements alone are insufficient as a basis to grant him the Purple Heart. Based on these statements, the applicant ducked into his turret to avoid a grenade and hurt his elbow as he was entering the vehicle. He did not sustain this injury as a direct result of enemy action, in that the grenade did not cause his injury. //NOTHING FOLLOWS// ABCMR Record of Proceedings AR20150000953 Enclosure 1 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS ABCMR Record of Proceedings (cont) AR20150014240 2 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 1 ABCMR Record of Proceedings (cont) AR20150014240 5 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 2