BOARD DATE: 18 April 2017 DOCKET NUMBER: AR20150016868 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: 18 April 2017 DOCKET NUMBER: AR20150016868 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: 18 April 2017 DOCKET NUMBER: AR20150016868 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 the Purple Heart. 2. The applicant states he suffered a concussion from an improvised explosive device (IED). He did not go to a medical facility because the unit was due to redeploy and as a medical aid men, he self-medicated. He reported the incident when he demobilized at Fort Bliss. 3. The applicant provides copies of: * 2004 deployment orders * 2005 change of station orders * 2006 release from active orders * service medical records (25 pages) * 2014 Notification of eligibility for Retired Pay for Non-Regular Service (15 Years) due to Physical Disability memorandum * 2015 DA Form 4187 (Personnel Action) Recommendation for Purple Heart * six DA Forms 2823 (Sworn Statement) * Multi-National Corps Iraq Permanent Orders 169-073 * DD Form 2697 (Report of Medical Assessment) * DD Form 2796 (Post-Deployment Health Assessment) * 2014 letter denying Purple Heart * Enlisted Record Brief (ERB) * two DD Forms 214 (Certificate of Release or Discharge from Active Duty) * DD Form 215 (Correction to the DD Form 214) * NGB discharge orders * NGB Form 22 (Report of Separation and Record of Service) * NGB Form 22A (Correction to NGB Form 22) 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. With prior active and inactive service, the applicant enlisted in the Arizona Army National Guard (AZARNG) on 2 March 2003. He mobilized with his unit and deployed to Kuwait/Iraq on 6 March 2005. 3. Multi-National Corps Iraq Permanent Orders 169-073 awarded the applicant the Combat Action Badge for actions on 23 January 2006 in Iraq. The incident report states the applicant, while conducting convoy operations as a military driver of an up-armored Humvee, was in the vicinity of an IED blast resulting in shrapnel damage and a cracked windshield to the lead vehicle and minor cosmetic damage to the other two vehicles. There were no reported injuries to personnel. Six DA Forms 2823 (Sworn Statements) were provided by members of the convoy; none of the statements indicant any injuries to personnel. 4. The applicant returned from Kuwait/Iraq on 14 February 2006. 5. A 16 February 2006 DD Form 2697 (Report of Medical Assessment) shows the applicant reported he had been involved in an IED blast, had bilateral elbow pain, right shoulder pain, ringing in the ears, and headaches during his deployment with painful, stiff or swollen joints at the time of the exam. He stated he had nightmares, was guarded or easily startled, and felt numb or detached from others. An audiological examination was within normal range. No other specialty or referral examinations were requested. This assessment is signed by a certificated physician assistant. 6. On 25 March 2006 the applicant was honorably released from active duty and issued a DD Form 214. This DD Form 214 does not show the Purple Heart as an authorized award. 7. On 21 April 2011 the applicant was mobilized for Operation Enduring Freedom. He served in Afghanistan from 14 June 2011 through 28 September 2011. He returned to the United States and was honorably released on 6 January 2011. This DD Form 214 does not show the Purple Heart as an authorized award. 8. He was again mobilized and appears to have served in the continental United States with the AZARNG. 9. On 13 May 2014 the AZARNG discharged the applicant and transferred him to the Retired Reserve due being medically unfit for retention under the provisions of Army Regulation 40-501 (Standards of Medical Fitness). He was issued an NGB Form 22, as amended by NGB Form 22A, that does not show the Purple Heart as an authorized award. 10. On 3 September 2014, the applicant received notification that he qualified for retired pay at age 60 for non-regular service (15 years) due to physical disability He received a Notification of Eligibility for Retired Pay for Non-Regular Service (15-Year Letter). 11. The service medical records provided by the applicant show he reported he started experiencing vertigo in February 2011, with multiple episodes occurring in June 2011 after his arrival in Afghanistan. He also was experiencing migraine headaches. a. On 19 September 2011, he received medical treatment wherein he gave a concussion history. He stated in 2002, while riding in a quad vehicle with no helmet he sustained a concussion when the vehicle rolled over. In 2006, he suffered a concussion while in Iraq from an IED blast. He reported several other incidents that occurred while playing baseball (2010) and Ultimate Frisbee (2010). A comprehensive neurologic review was negative with his recent and remote memory intact. The provisional diagnosis was vertigo. b. In November 2011, he was preliminarily diagnosed with sleep apnea by a private physician after he was referred by the military medical treatment facility. c. In November 2011, his military physician also referred him to behavioral health for a traumatic brain injury (TBI) assessment and for a post-deployment mental health assessment. A physician determined no psychiatric therapy was required. d. In January 2012 his diagnoses were shown as common migraine, concussion, sleep apnea, and positional vertigo. e. In March 2012, the applicant's sleep apnea was shown to be controlled by use of a constant positive air pressure (CPAP) machine which resolved his sleep apnea, dizziness, and headaches. 12. On 25 August 2014, the applicant underwent a second level traumatic brain injury evaluation by the Department of Veterans Affairs. The applicant provides 5 pages of a 181 page report showing he was involved in one IED blast in 2006 and multiple bomb blasts during his 2011 deployment. He reported he sustained two serious injuries one in 2006 and one in 2011, which resulted in his being evacuated from theater for headaches and refractory vertigo. This assessment shows he was positive for the residuals of TBI. 13. On 19 May 2015, the applicant completed a DA Form 4187 (Personnel Action) recommending himself for the Purple Heart for concussion injuries incurred on 23 January 2006. In an accompanying sworn statement the applicant describes being in a three vehicle convoy and driving through an IED blast. The vehicle sustained shrapnel damage to the left side of the vehicle and a cracked windshield. The convey personnel reported no injuries to personnel at the time. However, the applicant states he was experiencing headaches and ringing in his ears at the time. Because the unit was in its last weeks of deployment and because, in addition to being a military policeman he was also a medic, the applicant did not report for medical evaluation and self-medicated with over the counter analgesics. He states he did report the incident and his problems during his redeployment assessment. 14. The U.S. Army Human Resources Command, Awards and Decorations Branch, denied the applicant's Purple Heart request stating the medical documentation provided did not meet the criteria for the Purple Heart. REFERENCES: 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. The Purple Heart 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. DISCUSSION: 1. The applicant served in Iraq and was near the vicinity of enemy IED blast in 2006 as documented by his award of the Combat Action Badge. However, all of the official records to include witness sworn statements prepared at that time indicate no military personnel were injured in the blast. 2. The applicant has not provided and the record does not contain any documentation of medical treatment for any of the reported head injuries the applicant may have sustained during or immediately after the IED. The criteria for the Purple Heart for concussion injuries states there should be a 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. Based on the available evidence, it appears the applicant does not meet these criteria. //NOTHING FOLLOWS// ABCMR Record of Proceedings AR20150000953 Enclosure 1 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS ABCMR Record of Proceedings (cont) AR20150016868 2 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 1 ABCMR Record of Proceedings (cont) AR20150016868 2 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 2