IN THE CASE OF: BOARD DATE: 17 January 2017 DOCKET NUMBER: AR20160017998 BOARD VOTE: ___x_____ __x____ ___x____ GRANT FULL RELIEF ________ ________ ________ GRANT PARTIAL RELIEF ________ ________ ________ GRANT FORMAL HEARING ________ ________ ________ DENY APPLICATION 2 Enclosures 1. Board Determination/Recommendation 2. Evidence and Consideration IN THE CASE OF: BOARD DATE: 17 January 2017 DOCKET NUMBER: AR20160017998 BOARD DETERMINATION/RECOMMENDATION: The Board determined the evidence presented is sufficient to warrant a recommendation for relief. As a result, the Board recommends that all Department of the Army records of the individual concerned be corrected by awarding him the Purple Heart for wounds received in Ar Ramadi, Iraq, on 19 November 2005 (Standard Name Line: Staff Sergeant, Headquarters and Headquarters Company, 2nd Battalion, 69th Armor, 2nd Brigade Combat Team, 28th Infantry Division). ___________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: 17 January 2017 DOCKET NUMBER: AR20160017998 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 (PH). 2. The applicant states he sustained injuries on 19 November 2005, on Camp Combat Outpost in Ar Ramadi, Iraq. a. He states his injuries were the result of direct impact of a mortar round from an enemy weapon and caused by a projectile under indirect fire. He was asleep at the time in his bunk when the attack occurred. When he heard the first round impact, he jumped out of bed to put on his Individual Battle Gear. A second round then went through the roof over his bed and exploded. Pieces of the projectile hit his left calf and the blast blew him to the ground where he was knocked unconscious. He was taken to the battalion aide station (BAS) by Sergeant First Class (SFC) JEH; the first of the medical personnel to arrive on the scene. At the BAS, a Physician Assistant, Captain (CPT) MAH, examined the applicant and provided medical aid to him for a large contusion (bruise) on his left calf. He was then returned to duty (RTD). b. He states, at the time, Army Regulation (AR) 600-8-22 (Military Awards), dated 11 December 2006 was in effect. Paragraph 2-8 (PH), subparagraph g (Examples of enemy-related injuries which clearly justify award of the PH), in pertinent part, lists the enumerated items: "(1) Injury caused by enemy bullet, shrapnel, or other projectile created by enemy action." "(5) Concussion injuries caused as a result of enemy-generated explosions." b. He states his injuries met the minimum requirements for award of the PH; however, his unit did not submit documentation for the award to Headquarters, U.S. Army Human Resources Command (HRC). c. He is assigned to the Warrior Transition Unit, Brooke Army Medical Center, Fort Sam Houston, TX. On 1 June 2016, a request for award of the PH was submitted to HRC with new medical evidence, along with a copy of the Defense Casualty Information Processing System (DCIPS) report. On 30 August 2016, the Chief, Soldier Programs and Services Division, HRC, disapproved the request for award of the PH "because of the extent of [his] injuries." d. He states that HRC did not investigate the criteria of the regulation that was in effect. He adds that his injuries also met the minimum requirements under the version of AR 600-8-22, dated 25 June 2015, that is currently in effect. Instead, HRC referred to paragraph 2-8, subparagraph h (Examples of enemy-related injuries which clearly do not justify award of the PH), and cited item (15), "bruises/contusions (unless caused by direct impact of the enemy weapon and severe enough to require treatment by a medical officer)." e. He states that for reasons not known and due to unusual circumstances, his unit failed to timely submit his name to HRC for award of the PH. Then, HRC denied the request for award of the PH even though his injuries met the criteria for the award. He requests a personal appearance before the Board. 3. The applicant provides copies of: * a self-authored statement, dated 27 April 2016 (summarized above) * deployment orders * Standard Form (SF) 600 (Chronological Record of Medical Care) * Trauma Record * DCIPS report * Task Force (TF) 2-69 Intelligence Summary (INTSUM) * DA Form 4980-14 (Army Commendation Medal Certificate) * Enlisted Record Brief * two DA Forms 2823 (Sworn Statements) * National Personnel Record Center (NPRC) letter * HRC memorandum * AR 600-8-22, paragraph 2-8, dated 11 December 2006 (extract) CONSIDERATION OF EVIDENCE: 1. The applicant had prior honorable enlisted service in the Army National Guard of the United States from 30 June 1997 through 15 June 2000. 2. The applicant enlisted in the Regular Army (RA) on 16 June 2000. He was awarded military occupational specialty (MOS) 11C (Indirect Fire Infantryman). Through a series of reenlistments in the RA, he continued to serve on active duty. * He served in Iraq from 19 January 2005 to 18 January 2006 * He was promoted to staff sergeant/pay grade E-6 on 1 July 2005 3. A DA Form 2166-8 (NCO [Noncommissioned Officer] Evaluation Report) covering the period April 2005 through January 2006 shows the applicant performed duty as Fire Direction Center Check Computer while assigned to Headquarters and Headquarters Company, 2nd Battalion, 69th Armor (2-69 AR BN), 3rd Brigade, 3rd Infantry Division, Fort Benning, GA, and he was deployed to Iraq during the period of the report. 4. On 1 June 2014, he attained the rank of SFC (E-7) and was awarded MOS 79R (Recruiter). 5. A review of the applicant's military personnel record failed to reveal evidence that he was awarded the PH for injuries sustained on 19 November 2005. 6. In support of his application the applicant provides the following documents. a. Headquarters, 3rd Infantry Division, Fort Stewart, GA, Permanent Orders 314-8, dated 9 November 2004, that ordered the movement of personnel of 3rd Brigade Combat Team, Fort Benning, GA, for assignment to Department of the Army, Coalition Forces Land Component Command, U.S. Army Forces Central Command, Third U.S. Army, in support of Operation Iraqi Freedom (OIF), effective 19 January 2005. b. An SF 600 that shows, on 19 November 2005, the applicant was brought to the BAS unconscious from a battle injury from an attack on Camp Combat Outpost. The attending medical official noted, in pertinent part, "A large contusion was notice [sic] during exam on patient's lower extremities/left calf. Patients [sic] stated 9 out of 10 on pain factor. An ice compression bandage was applied to reduce the swelling and bruising. Patient stated his head hurt from blast. No sign of head trauma during exam. Calf contusion/battle related minimal injury." He was RTD with limitations (use crutches when needed, rest, and elevate leg to reduce swelling). The form is signed by CPT MAH, Physician Assistant, BAS, 2-69 AR BN. c. Trauma Record, 2-69 AR BN, Camp Combat Outpost, pertaining to the applicant. (1) It shows the attending medical doctor noted: * Mechanism of Injury – "Blast" * Wounded by: "Enemy – Wounded" * Triage Category: "Minimal" * Protection: "Pt [Patient] was indoors. Mortar struck through roof. Pt knocked down." * Extremities: "L [Left] Calf Contusion" * Disposition: RTD" (2) The form is signed by CPT JJB, Battalion Surgeon, 2/69 AR BN d. DCIPS report that shows the applicant was wounded in action by enemy forces (hostile, not seriously injured), on 19 November 2005, while on a Forward Operating Base (FOB) when an indirect fire (IDF) attack occurred. It also shows he sustained a contusion to the left calf; was medically evacuated to the BAS in Ar Ramadi, Iraq; treated by competent medical authority, and RTD the same day. e. TF 2-69 AR INTSUM, dated 20 November 2005, that shows, in pertinent part, at 1456 hours, 19 November 2005, Camp Combat Outpost was attacked with two rounds of IDF and one round impacted on the Mortar Platoon barracks resulting in one friendly wounded in action (RTD). f. A DA Form 4980-14 that shows Headquarters, 2nd Brigade Combat Team, 28th Infantry Division, Permanent Orders 354-044, dated 20 December 2005, awarded the applicant the Army Commendation Medal for meritorious service while serving as a Mortar Squad Leader, 2-69 AR BN, from 17 January 2005 to 31 December 2005. g. A DA Form 2823, dated 5 October 2007 and sworn to on 7 May 2008, that shows SFC JEH stated that, on 19 November 2005, Camp Combat Outpost in Ar Ramadi, Iraq, came under mortar attack. One of the mortar rounds impacted on the Mortar Platoon barracks directly over the applicant's bunk. SFC JEH was the platoon's medic and the first medic on the scene. The applicant injured his left leg, was taken to the BAS, and was treated for a large contusion. h. A DA Form 2823, dated 2 November 2007 and sworn to on 7 May 2008, that shows CPT ATH stated that, at around 1200 hours on 19 November 2005, FOB Combat Outpost in Ar Ramadi, Iraq, came under intense mortar fire. At the time he was the 2-69 AR BN, Medical Platoon Leader. During the attack, one of the mortar rounds landed on the roof of the Mortar Platoon's living area directly above the applicant's bunk. The impact of the mortar round threw the applicant from his bunk, injuring his leg. The applicant was brought to the BAS where he was treated for a large contusion he sustained on his left leg during the attack. i. NPRC letter, dated 22 November 2007, in response to an inquiry from Senator ED. It shows the applicant's military health record was not available at NPRC and that it may be at the Veterans Administration Regional Office. j. HRC, Fort Knox, KY, memorandum, dated 30 August 2016, that shows the Chief, Soldier Programs and Services Division, disapproved the applicant's award of the PH for injuries received while deployed in support of OIF. He stated, "After a review of the information provided, the award of the PH for this particular event does not meet the statutory guidance in accordance with AR 600-8-22, paragraph 2-8h(15). The award of the PH requires both a diagnosis and treatment of injuries caused by the enemy signed or endorsed by a medical officer. Although unfortunate, the extent of the injury described as contusions (bruises) does not meet the minimum requirement for approval." REFERENCES: 1. AR 600-8-22 provides policy, criteria, and administrative instructions concerning military awards and decorations. Chapter 2, paragraph 2-8, governs award of the PH. a. The version (dated 25 February 1995) with an effective date of 28 March 1995, and in effect at the time of the injury under review, in pertinent part, shows the PH is awarded to any member who, while serving under competent authority in any capacity with one of the U.S. Armed Services, has been wounded or killed, or who has died or may hereafter die after being wounded: (1) In any action against an enemy of the United States. (2) In any action with an opposing armed force of a foreign country in which the Armed Forces of the United States are or have been engaged. (3) While serving with friendly foreign forces engaged in an armed conflict against an opposing armed force in which the United States is not a belligerent party. (4) As a result of an act of any such enemy of opposing armed forces. (5) As a result of an act of any hostile foreign force. (6) After 23 March 1973, as a result of an international terrorist attack against the United States or a foreign nation friendly to the United States, recognized as such an attack by the Secretary of the Army, or jointly by the Secretaries of the separate armed services concerned if persons from more than one service are wounded in the attack. (7) After 28 March 1973, as a result of military operations while serving outside the territory of the United States as part of a peacekeeping force. (8) 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 by a medical officer and records of medical treatment for wounds or injuries received in action must have been made a matter of official record. (9) Subparagraph 2-8b(4) (Examples of enemy-related injuries which clearly justify award of the PH), in pertinent part, lists the following example, "Concussion injuries caused as a result of enemy generated explosions." b. The version (dated 11 December 2006), with an effective date of 8 July 2007 (and that the applicant cites in his application), shows in subparagraph 2-8g (Examples of enemy-related injuries which clearly justify award of the PH), and, in pertinent part, lists the following examples (at the enumerated items): "(1) Injury caused by enemy bullet, shrapnel, or other projectile created by enemy action." "(5) Concussion injuries caused as a result of enemy-generated explosions." c. The version (dated 25 June 2015), with an effective date of 25 July 2015 (and that the HRC official cites in his letter), shows in paragraph 2-8h, (Examples of injuries or wounds which clearly do not justify award of the PH), and, in pertinent part, lists the following example, "(15) "Bruises (unless caused by direct impact of the enemy weapon and severe enough to require treatment by a medical officer)." 2. AR 15-185 (Army Board for Correction of Military Records (ABCMR)) prescribes the policies and procedures for correction of military records by the Secretary of the Army acting through the ABCMR. Paragraph 2-11 states that applicants do not have a right to a hearing before the ABCMR. The Director of the ABCMR or the chair of an ABCMR panel may grant a formal hearing whenever justice requires. DISCUSSION: 1. The applicant contends that his records should be corrected to show award of the PH because he was injured, on 19 November 2005, as a result of an indirect mortar explosion while serving in Ar Ramadi, Iraq. 2. The applicant's request for a personal appearance hearing was carefully considered. However, by regulation, an applicant is not entitled to a hearing before the ABCMR. Hearings may be authorized by a panel of the ABCMR or by the Director of the ABCMR. In this case, the evidence of record and independent evidence provided by the applicant is sufficient to render a fair and equitable decision at this time. As a result, a personal appearance hearing is not necessary to serve the interest of equity and justice in this case. 3. The determination made by the HRC official, on 30 August 2016, was carefully considered, along with the evidence of record before this Board. It is noted that the version of the Military Awards regulation, with an effective date of 25 July 2015, that was referenced by HRC to deny award of the Purple Heart cited an example that had recently been incorporated into the new version (i.e., bruises, unless caused by direct impact of the enemy weapon and severe enough to require treatment by a medical officer). a. The evidence of record shows, on 19 November 2005, the applicant sustained a large contusion to his left calf the result of an enemy attack on Camp Combat Outpost in Ar Ramadi, Iraq. b. The applicant's injury was the result of the impact of an indirect fire attack, the injury was severe enough to require treatment by a medical officer, and the treatment was made a matter of official record. //NOTHING FOLLOWS// ABCMR Record of Proceedings AR20150000953 Enclosure 1 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS ABCMR Record of Proceedings (cont) AR20160017998 2 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 1 ABCMR Record of Proceedings (cont) AR20160017998 7 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 2