BOARD DATE: 8 August 2017 DOCKET NUMBER: AR20160016668 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: 8 August 2017 DOCKET NUMBER: AR20160016668 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: 8 August 2017 DOCKET NUMBER: AR20160016668 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 due to traumatic brain injury (TBI). 2. The applicant states he has documented evidence that supports he sustained a TBI from Improvised Explosive Device (IED) blasts while deployed in support of Operation Iraqi Freedom. He has submitted everything needed to prove without a doubt that he suffers from TBI due to numerous IED blasts and the Improvised Rapid Assembly Munitions System (IRAMS). 3. The applicant provides: * Memorandum, subject: Award of the Purple Heart for Master Sergeant (MSG) [applicant] from the U.S. Army Human Resources Command (HRC), Fort Knox, KY * DA Form 4187 (Personnel Action) * Memorandum, subject: Award of the Purple Heart for MSG [applicant] addressed to the Army Review Boards Agency * Medical documentation * DA Form 1156 (Casualty Feeder Card) (illegible) * Letters of support * DA Forms 2823 (Sworn Statement) * Unit orders assigning the 1st Battalion, 68th Armor, 3rd Brigade Combat Team, 4th Infantry Division to the U.S. Central Command * photograph of an IED strike on Canal Road on 14 December 2005 * Enlisted Record Brief 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 23 November 1990 and has continued to serve on active duty through a series of reenlistments. He is currently serving on active duty in the rank of first sergeant. 3. His service record contains Permanent Order Number 041-001D published on 10 February 2006 by Headquarters, 101st Airborne Division (Air Assault), Forward Operating Base (FOB) Speicher, that awarded him the Combat Action Badge for being engaged or engaging the enemy on 14 December 2005 in Iraq. 4. He provided his Enlisted Record Brief that shows he served in Iraq during the following periods: * November 30 2005 to 6 November 2006 * 21 June 2008 to 13 July 2008 * 15 March 2010 to 13 March 2011 5. He provided a letter, dated 28 April 2011, from a family physician at the Medical Readiness Clinic, Fort Carson, CO, who stated he works with TBI patients at Fort Carson Medical Readiness Clinic and he has been following the applicant since he returned from Iraq in 2006. The physician stated the applicant sustained a TBI secondary to a blast. The applicant was the commander of a Humvee when "2-120" round explosions occurred on his side of the door. He hit his head on the right side, was dazed, confused, and had difficulty thinking for a few moments. The applicant was seen by the medic and prescribed sleep medication for 1 week. The physician also stated the applicant was diagnosed with TBI due to the blast and had been followed by their clinic since then for the symptoms of headaches, memory loss, insomnia, and irritability. 6. The applicant provided a narrative in support of his Purple Heart request. He stated: a. On 14 December 2005 while assigned to Headquarters and Headquarters Company, 1st Battalion, 68th Armor Regiment, 3rd Brigade Combat Team, 4th Infantry Division, he was on patrol with elements of the 1st Platoon, Company C, 2nd Battalion, 34th Armor Regiment, when their convoy was hit by an IED. The mission of the patrol was to conduct route clearance and polling site assessments in the Al Abarrah Nahlya district. b. While traveling north on Canal Road vehicle C12A was hit by an IED consisting of two 120 millimeter (MM) mortars attached to a pressure plate. He was the vehicle commander for C12A and sat on the right side of the vehicle when it was struck by the IED. He was knocked unconscious for about approximately 1 to 2 minutes. He states that upon return to FOB Gabe the convoy was once again attacked, this time with a rocket-propelled grenade and small arms fire. Upon his arrival at FOB Gabe, he was seen at the Aide Station and diagnosed with a concussion. He was given medication for headaches and nausea. He had issues with headaches and insomnia during the next few days. Upon his return to Fort Carson he was diagnosed with TBI from the blast. He states his treatment for TBI is ongoing. 7. The applicant provides: a. Memorandum for Record, dated 22 March 2013, from the TBI Director of Internal Medicine at Headquarters, 121st Combat Support Hospital, Brian Allgood Army Community Hospital, who stated the applicant was a 43-year-old male who experienced an IED blast and experienced loss of consciousness for a few minutes in 2005. A review of medical records also indicated that during his deployments, the applicant experienced similar concussions in 2006, 2008, and 2010 and he was dazed after the concussions. After evaluating the applicant, he believes the applicant has a clinical diagnosis of mild TBI per (Department of Veterans Affairs)/Department of Defense) Clinical Practice Guideline for Management of Mild TBI. b. DA Form 4187 that indicates on 5 November 2015 his commanding officer requested he receive award of the Purple Heart for wounds received in action on 14 December 2005. His chain of command recommended approval. On 21 December 2015, his brigade commander noted the applicant's testimonial and medical evidence support the claim that he was entitled to the Purple Heart in 2005. 8. A memorandum, subject: Award of the Purple Heart for [Applicant], from HRC, for the Commander, 2nd Battalion, 12th Field Artillery, 1st Striker Brigade Combat Team, 4th Infantry Division, Fort Carson, dated 5 August 2016, states, in effect, after a thorough review of the information provided and consultation with the HRC Surgeon’s office, the award of the particular event does not meet the statutory guidance in accordance with Army Regulation 600-8-22 (Military Awards), paragraphs 2-8h(13). A review of the Armed Forces Health Longitudinal Technology Application (AHLTA) by the HRC Command Surgeon did not reflect a diagnosis of TBI. The lack of supporting medical documentation in AHLTA combined with the documentation that was submitted makes it impossible to connect an injury to the incident. 9. On 11 January 2017, the Senior Medical Advisor within the Army Review Boards Agency (ARBA) provided an advisory opinion: a. DA Form 4187, dated 5 November 2015, notes that on 14 December 2005 the applicant’s convoy was struck by an IED and he was treated at the Aid Station at FOB Gabe for post-blast concussion. b. Review of the applicant’s electronic medical record in AHLTA revealed clinical encounters from May 2005 through December 2016. Radiology reports reviewed from March 2003 through December 2016 were unremarkable. Laboratory results reviewed from January 2003 through March 2016 were unremarkable. Clinical notes were reviewed from April 2005 through December 2016. There is no AHLTA documentation (from theater) between 25 November 2005 and 30 November 2006. (Reviewer’s note: at that time, theater medical documentation was paper based and this active duty Soldier’s paper Service Treatment Record (STR) and/or copies of notes from 2005 through 2007 are not available for review.) c. Sworn Statement, dated 13 December 2010 submitted by JAD (who was not present at scene in 2005) with "…and our initial reports about [applicant] indicated that he had been knocked unconscious for about a minute…within 24 hours of the attack, [applicant] returned to the FOB Aid Station complaining about having difficulty sleeping…” d. Post deployment (Iraq) medical screening and evaluation visits (30 November through 15 December 2006 – approximately 12 months after the event) included hearing readiness/audiology, optometry, social work (behavioral health), and various Soldier Readiness Processing (SRP) clinic providers. The applicant’s symptoms and assessments included post-concussion syndrome (headache, dizziness, balance problems after the event), insomnia, depression (pre-deployment to present), and back pain (5-6 year history). Lumbar spine x-ray series (30 November 2006) – moderate narrowing of the L5-S1 intervertebral disk space…otherwise unremarkable. e. Medical Statement, dated 28 April 2011, from a physician at Fort Carson regarding the incident in 2005 and the provider’s follow-up of the applicant since 2006 for symptoms of headaches, memory loss, insomnia, and irritability. After the blast he was seen by the medic and prescribed sleep medications for one week. (Reviewer note: other notes state 2 weeks of sleep medications.) f. Clinic visit on 7 February 2007 for follow-up noted a new type of headache, right frontal and stabbing in nature, three episodes were accompanied by vision loss on the right eye lasting up to a minute. g. Magnetic Resonance Imaging (MRI) (26 February 2007) for "Soldier with TBI. Now having severe [right] frontal pain and visual loss "– normal. h. Review of several notes indicate Soldier was deployed to Iraq from 2005-2006 (12 months), 2008-2009 (87 days), and from 2010-2011 (12 months). The applicant stated the most traumatic event was in 2008 when he was blown up while in his housing unit. He also stated he went through 2 metal doors which caused his shoulder to become partly detached and he ended up losing all his teeth. Cervical spine x-ray series (12 Sept 2008) – normal. Lumbar spine x-ray series (12 Sept 2008) – mild scoliosis (10 degrees to the right) without other findings. MRI brain and MRI carotid angiography (18 Sept 2008) – negative for intracranial abnormal findings; no pathology of the extracranial carotid system. Computed tomography (CT) scan facial (30 Jul 2009) for 38-year-old male status post-facial trauma needing mandibular dental implants – there are 6 maxillary and 3 mandibular implants, otherwise unremarkable. MRI brain (25 March 2013) compared with MRI brain performed at outside institution on 19 April 2012 for 43 year old male with post traumatic headache, difficulty sleeping – normal brain MRI. i. DA Form 2166-8 (Noncommissioned Officer Evaluation Report (NCOER)) from 8 July 2013 through 7 July 2014 with Army Physical Fitness Test (APFT) – shows pass (920416) and height/weight-67/174 – meets standards; consistently exceed the standard as demonstrated by his APFT score of 291 and his commitment to physical fitness; four "excellence" ratings, one "success" rating with rater "Among the Best" and senior rater performance/potential of 1/1. j. NCOER from 8 July 2014 through 5 December 2014 with APFT – shows pass (15 October 2014) and height/weight-67/176 – meets standards; scored 294 on the most recent APFT. Three "excellence" rating, two "success" rating with rater "Among the Best" and senior rater performance/potential of 1/1. k. The applicant currently meets medical retention standards in accordance with chapter 3, Army Regulation 40-501 (Standards of Medical Fitness), and following the provisions set forth in AR 635-40 (Disability Evaluation for Retention, Retirement, or Separation) that were applicable to the applicant’s era of service. l. Review of the available medical documentation found some evidence that the applicant manifested symptoms consistent with post-concussion syndrome, but no primary theater medical documentation immediately or proximal to the event is available for corroboration. 10. A copy of the advisory opinion was forwarded to the applicant to allow him to provide comments. He did not respond. REFERENCES: 1. Army Regulation 600-8-22 states 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 by medical personnel, and the medical treatment must have been made a matter of official record. Paragraph 2-8h provides examples of injuries or wounds which clearly do not justify award of the Purple Heart. Paragraph 2-8h(13) states award of the Purple Heart is not justified for 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 findings of impaired brain function. 2. Military Personnel Message Number 11-125, issued by the U.S. Army Human Resources Command, Fort Knox, KY, 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 that the Soldier was wounded in action, the wound required treatment by a medical officer, and the treatment must have been made a matter of official record. 2. The applicant's Enlisted Record Brief shows he initially deployed to Iraq from 30 November 2005 to 6 November 2006. 3. Records show that on 14 December 2005 the applicant’s convoy was struck by an IED, he was knocked unconscious during the attack, and he was treated at the Aid Station at FOB Gabe for post-blast concussion. 4. The applicant provided medical documentation prepared approximately 1 year post-concussion that indicates he continued experiencing headaches, dizziness, insomnia, irritability, and memory problems subsequent to the IED blast. His medical symptoms were consistent with a concussion injury. 5. The applicant's service record is void of medical documentation prepared proximate to the IED blast (14 December 2005) that shows a medical officer or medical professional diagnosed him with TBI. 6. The applicant provided statements from a family physician (28 April 2011) who attested the applicant hit his head on the right side, was dazed and confused, and had difficulty thinking for a few moments. The applicant was seen by the medic and prescribed sleep medication for 1 week. 7. The applicant provided statements from a TBI Director (22 March 2013) who attested that the applicant experienced an IED blast and loss of consciousness for a few minutes in 2005 and he experienced similar concussions in 2006, 2008, and 2010. 8. Although the applicant's service record shows he received treatment for the concussion sustained on 14 December 2005, his service record is void of the treatment that was documented by the medical officer or medical personnel at that time. //NOTHING FOLLOWS// ABCMR Record of Proceedings AR20150000953 Enclosure 1 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS ABCMR Record of Proceedings (cont) AR20160016668 2 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 1 ABCMR Record of Proceedings (cont) AR20160016668 8 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 2