BOARD DATE: 5 December 2017 DOCKET NUMBER: AR20170008330 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: 5 December 2017 DOCKET NUMBER: AR20170008330 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: 5 December 2017 DOCKET NUMBER: AR20170008330 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, in effect, award of the Purple Heart. 2. The applicant states at the time he was injured, traumatic brain injury (TBI) was not a criterion for award of the Purple Heart. 3. The applicant provides a self-authored narrative and the following: * Orders 06-167-00008, issued by 335th Theater Signal Command, East Point, GA on 16 June 2006 * Pre-Deployment Health Assessments, dated 21 September 2006 and 11 September 2007 * DA Form 4187 (Personnel Action), undated * DA Forms 2823 (Sworn Statement), dated 22 and 23 February 2007 * Permanent Orders 058-029, issued by Headquarters, Multi-National Division (Baghdad), Camp Liberty, Iraq on 27 February 2007 * Combat Action Badge (CAB) Award Criteria Checklist, undated * Orders 256-0013, issued by Camp Shelby Joint Forces Training Center, Camp Shelby, MS on 13 September 2007 * DD Form 214 (Certificate of Release or Discharge from Active Duty), for the period ending 14 September 2007 * Standard Forms (SF) 600 (Chronological Record of Medical Care), covering the period 12 November 2006 through 23 March 2010 * DA Form 2-1 (Personnel Qualification Record – Part II) * disability rating letter from the Department of Veterans Affairs (VA), St Louis, MO, dated 19 September 2016 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 U.S. Army Reserve (USAR) on 31 July 2006. Following the completion of his initial entry training, he was awarded military occupational specialty 25V (Combat Documentation/Production Specialist). 3. Orders 06-167-00008, issued by 335th Theater Signal Command, East Point, GA on 16 June 2006, ordered the applicant to active duty in support of Operation Iraqi Freedom (OIF). 4. While serving in Iraq, on 21 February 2007, an improvised explosive device (IED) detonated approximately 50 to 75 meters from the applicant's vehicle. 5. A DA Form 4187, provided by the applicant and submitted by his commander, recommended the applicant for award of the CAB for qualifying actions that occurred on 21 February 2007. 6. The applicant provides two sworn statements from witnesses, one from his platoon sergeant and the other from his platoon leader. These statements state: a. On 22 February 2007, while on a dismounted movement to assist in clearance of a hostile enemy village, the patrol had an IED detonate in close proximity to the platoon. The detonation occurred when a local national driving his extended bed bongo truck struck the IED while using the canal crossing. b. The platoon leader stated he was leading a dismounted patrol when an IED detonated near their patrol, followed by one round of small arms fire aimed toward their position. 7. A chronological record of medical care, dated 23 February 2007, lists the following medical problems: * foot strain right * injury from terrorist explosion blast * ankle sprain * ankle sprain right * common cold * upper respiratory infection * cellulitis of the face 8. Permanent Orders 058-029, issued by Headquarters, Multi-National Division (Baghdad), Camp Liberty, Iraq, on 27 February 2007, awarded the applicant the CAB for action on 11 November 2006 with the reason stated as "for wounds received as a result of hostile enemy action." 9. The applicant was honorably released from active duty on 14 September 2007. The DD Form 214 he was issued shows he served in Iraq from 28 September 2006 through 8 September 2007. 10. The applicant's records does not contain any medical documentation, from either a medical professional or a medical officer, which shows the applicant lost consciousness (LOC) after the IED incident or was diagnosed with a TBI. 11. The applicant provides: a. A personal narrative which states, in pertinent part, on 11 November 2006, while returning to Forward Operating Base (FOB) Gator Swamp from a cache exploration to the North, his convoy was ambushed by an IED and small arms fire and insurgents on a road known as Route Fat Boy. Upon impact/explosion of the IED, his head struck the right side passenger window, causing head pain and an initial headache. Upon exiting the vehicle, he lost his balance and fell backwards, injuring his foot and ankle and fell to the ground hitting his head. b. Medical records, dated 12 November 2006, which show he reported that he sprained his right ankle while dismounting a vehicle after being ambushed the previous night. Medics were not available at the time due to other casualties from an IED explosion. He complained of stiffness and pain when flexing. c. A disability rating letter from the Department of Veterans Affairs (VA), Saint Louis, MO, dated 19 September 2016, which shows he was granted service-connected disability ratings as follows: * post-traumatic stress disorder, 70% * irritable bowel syndrome and gastroesophageal reflux disease, 30% * bilateral sensorineural hearing loss, 30% * migraine headaches, 30% * vertigo, 10% * excision of benign mass, left forearm with residual scar, 10% * right ankle strain with Achilles tendonitis, 10% * tinnitus, 10% * right foot plantar fasciitis, 0% * TBI, 0% 12. In the processing of this case, the Chief, Awards and Decorations Branch, U.S. Army Human Resources Command, provided an advisory opinion on 6 July 2017. The advisory official stated: a. After a thorough review of the case file and forwarded military medical documentation, this office does not recommend approval of the Purple Heart to the applicant. Per Army Directive 2011-07 (Military Personnel (MILPER) Message 11-125), both diagnostic and treatment factors for TBI must be present and documented in the medical record by a medical officer at or near the time of the injury. In this case, there is no documentation of a diagnosis or treatment for TBI at or near the incident dates of 11 November 2006 and 21 February 2007. b. The applicant received medical attention after his vehicle encountered an IED blast on 11 November 2006; however, there is no reference to a head injury during this initial examination. According to available military medical notes, he complained only of a right ankle sprain, for which he was prescribed ibuprofen and placed on ten days of light military duty. Likewise, there is no official military medical record citing diagnosis and treatment for TBI (or other injuries) resulting from and an IED blast on 21 February 2007. c. Per VA medical records, the applicant tested positive for TBI during a post-deployment screening in December 2008. He underwent further TBI assessment by the VA in February 2009. Nevertheless, due to the length of time between the cited incidents and this medical diagnosis, a definitive correlation to his TBI diagnosis by the VA to the IED blasts was unable to be made. As such, it cannot be confirmed whether he meets the strict criteria for award of the Purple Heart. 13. The applicant was provided a copy of the advisory opinion, to allow him the opportunity to submit comments or a rebuttal. He did not respond. REFERENCES: 1. 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. 2. 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, U.S. 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 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 CT or magnetic resonance imagining (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. 3. The Military Acute Concussion Evaluation (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: 1. The applicant contends he suffered a head injury during a mounted patrol on 11 November 2006, when his convoy was ambushed by an IED and small arms fire. His head struck the right side passenger window causing head pain and headache. On 21 February 2007, while providing photographic documentation in the clearance of a hostile enemy village an IED exploded approximately 50 meters from his location. The blast caused him to fall backward and caused intense throbbing in his head. 2. 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. 3. Based on a review of the available documentation, the advisory official was unable to definitively correlate the applicant's TBI diagnosis by the VA in December 2008, to the IED explosion on 11 November 2006 or 21 February 2007. Per regulatory guidance, both diagnostic and treatment factors for TBI must be present and documented in the medical record by a medical officer at or near the time of the 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) AR20170008330 2 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 1 ABCMR Record of Proceedings (cont) AR20170008330 2 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 2