ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS IN THE CASE OF: BOARD DATE: 26 May 2021 DOCKET NUMBER: AR20200001769 APPLICANT REQUESTS: entitlement to the Purple Heart (PH). APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: * DD Form 149 (Application for Correction of Military Record) * 5 page Medical Opinion, Disability Benefits Questionnaire, dated 27 February 2020 * 10 page Initial Evaluation of Residuals of Traumatic Brain Injury (TBI), Disability Benefits Questionnaire, dated 4 March 2020 * 8 page Seizure Disorder (Epilepsy), Disability Benefits Questionnaire, dated 4 March 2020 * 11 page Hearing Loss and Tinnitus, Disability Benefits Questionnaire, dated 10 February 2020 * 2 images of cervical spine, dated 26 August 2019 * Letter from U.S. Army Human Resources Command (AHRC) to a Member of Congress (MOC), dated 29 October 2019 * Letter from AHRC to applicant, dated 15 October 2019 * Letter from AHRC to applicant, dated 24 May 2019 * Letter from a MOC, dated 4 November 2019 * 5 page Memorandum of Justification for Award of the PH, dated 20 November 2019 * Military Personnel Message Number 11-125, issued 29 April 2011 * 1 page Mitigating Circumstances statement * 2 page Mission Narrative * DD Form 214 (Certificate of Release or Discharge from Active Duty) * Enlisted Record Brief * Bronze Star Medal certificate * Permanent Orders 263-004, dated 20 September 2005 * Orders 029-018, dated 29 January 2013 * 6 pages of unclassified documents and photographs * 1 page statement from DF, dated 15 December 2018, with DD Form 214 * 1 page statement from DRB, undated, with DD Form 214 * Extract of Army Regulation 600-8-22 (Military Awards), dated 5 March 2019 * Article, DoD Issues PH standards for brain injury, dated 28 April 2011 * Appeal from the U.S. District Court for the * Individual Sick Slip, dated 1 September 2003 * Letter, dated 9 September 2019, from Dr. DRB, with numerous associated medical records and findings * Pre-deployment Health Assessment * 15 pages, Standard Form 600 (Chronological Record of Medical Care) * Department of Veterans Affairs (VA) Form 21-0960P-3 (Review Post-Traumatic Stress Disorder (PTSD) Disability Benefits Questionnaire * Curriculum Vitae, Dr. DOB, Health Services Psychologist, with certifications and license * 17 pages of medical records and images * Information from various sources pertaining to concussions, TBI, chronic pain, and neurological effects of blast injuries * Article, dated 9 September 2010, PH Elusive for TBI * Article, dated March 2014, Auditory Effects of Blast Exposure * 8 page Clinical Study pertaining to Ocular Injuries from Improvised Explosive Devices (IEDs) FACTS: 1. The applicant did not file within the three-year period provided in Title 10, United States Code, section 1552(b); however, the Army Board for Correction of Military Records (ABCMR) conducted a substantive review of this case and determined it is in the interest of justice to excuse the applicant's failure to timely file. 2. The applicant states, in effect: a. He was wounded by an IED blast on 18 August 2003, which caused him to have post-traumatic amnesia, mild traumatic brain injury (mTBI)/concussion with loss of consciousness, damage to the left parietal lobe of the brain with contusions, migraine headaches, structural lesion, deviated nasal septum, tympanic membrane rupture of the left ear with severe hearing loss and tinnitus, detached retinal damage to the left eye causing choroidal nevus, blurry vision and diminished vision loss, memory loss, syncope, confusion, restrictive lung defect, attention disorder, confusion, concentration problems, sever mood swings and back/spinal injury with severe pain and impinged nerves with disk damage. b. While deployed to Iraq in 2003, and since returning to Fort Sill, OK, in 2004, until present, he has been diagnosed and treated for numerous medical conditions due to his post-traumatic amnesia. Various doctors treated one symptom or diagnosis at a time and failed to establish an etiology to determine the root cause of all of the underlying symptoms/conditions. It wasn't until Dr. B treated him and triggered his lost memories and referred him to neurology where after one year or so of testing, diagnoses and treatment that the etiology was established and connected directly to the IED blast in 2003, which caused his medical conditions. c. Since he was 17km away from the closest aid station, medical aid was not immediately available. After the blast, he did not know he had an mTBI/concussion and was suffering from post-traumatic amnesia. Although he continued to suffer after the blast with constant headaches, fainting spells, pain and loud ringing in both his ears, memory loss, confusion, irritability, back pain, eye and nose pain, mission tempo kept him from seeking medical assistance until 14 days later, which was the soonest he could get to a medical aid station while on a resupply mission. He was seen/treated by the physician assistant (PA) at the aid station. The PA stated that he had a ruptured left eardrum and a concussion and that he probably strained his back. 3. The applicant further provides a Memorandum of Justification for Award of the PH wherein he claims wrongful denial of the PH due to a profound misinterpretation of the totality of medical records, a common misunderstanding of the medical definitions of TBI, concussion, post-concussion syndrome, post-concussion amnesia, and other injuries with accompanying symptoms. He notes that, by regulation, there is no time limit on diagnoses and continuous treatment for concussions or other enemy inflicted wounds. 4. He also describes the mitigating circumstances surrounding his reasons for not seeking immediate medical aid after the blast. He states, in effect, that he did not know at the time of the incident that he had an mTBI and further injuries because he was suffering from post-traumatic amnesia. In addition, there were no medical facilities at his location. Although several Soldiers noticed the cognitive defects he was displaying and asked him to go to the nearest aid station, it would have been too dangerous a risk of life. It wasn't until 14 days later that he was able to obtain medical treatment at the aid station. The applicant further states, in effect, that he feared reprisal from the Task Force Gunner Commander and Command Sergeant Major (CSM) as they created a hostile command climate. Ultimately, a formal complaint was filed against the commander and CSM by several individuals, which resulted in one commander of the task force being court-martialed and the task force commander/CSM being reprimanded and asked to retire. 5. The applicant enlisted in the Regular Army on 20 October 1983. Having sufficient service for retirement, he retired from service on 30 June 2006. The DD Form 214 he was issued shows he was awarded or authorized the: * Bronze Star Medal * Meritorious Service Medal (3rd Award) * Army Commendation Medal (7th Award) * Army Achievement Medal (8th Award) * Valorous Unit Award * Army Good Conduct Medal (7th Award) * National Defense Service Medal (2nd Award) * Global War on Terrorism Service Medal * Korea Defense Service Medal * Turkish Paratrooper Badge * Humanitarian Service Medal * Noncommissioned Officer Professional Development Ribbon (4th Award) * Army Service Ribbon * Overseas Service Ribbon (4th Award) * Drill Sergeant Identification Badge * Combat Action Badge * Parachutist Badge * Driver and Mechanic Badge with Mechanic Bar * Iraq Campaign Medal 6. Evidence shows he served in Iraq for the period 1 March 2003 to 1 October 2003. 7. On 24 May 2019, AHRC responded to the applicant's inquiry concerning his desire to be awarded the PH. AHRC's letter stated, in effect, that the request must be supported by military medical documentation describing both diagnosis and treatment of a qualifying injury caused by the enemy immediately after, or close to the incident date and signed or endorsed by a medical professional in accordance with Army Regulation 600-8-22, paragraph 2-8. Based on the information provided, the applicant did not receive treatment by a medical officer following the IED blast of August 2003. They acknowledged subsequent records, which reflected a TBI evaluation; however, they were unable to conclusively link any recently diagnosed injuries to the IED blast in question. Therefore, it appears the applicant did not meet the regulatory criteria for award of the PH. 8. On 15 October 2019, AHRC responded to the applicant's request to be awarded the PH and stated, in effect, that they remained unable to authorize the award for issuance. They noted a sick slip from the month following the incident in question did not conclusively reflect a diagnosis of and treatment for a qualifying injury. Moreover, they could not use post-deployment military medical documentation as the primary basis for retroactive PH determination. Therefore, due to the lack of acceptable military medical records, AHRC concluded he did not meet the regulatory criteria for award of the PH. 9. On 29 October 2019, in a letter to a MOC referencing the applicant's request, AHRC stated award of the PH is not authorized for mTBI or concussions that do not either result in extended 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. Combat theater and unit command policies, or medical protocols, mandating rest periods, light duty, "down time" and/or the administration of pain medication (for example acetaminophen, aspirin, or ibuprofen) in the absence of persistent symptoms of impairment following concussive incidents do no constitute qualifying treatment for a concussive injury. 10. The letter further stated AHRC was unable to utilize post-deployment medical documentation, board proceedings, and VA rating decisions in the award process. The provided documentation dated 1 September 2003, indicates the applicant was seen for a hurt back, headache, pain with ringing in the ears, and possible concussion following exposure to an IED on 8 August 2003, in Iraq. The applicant was placed on quarters for two days and given Motrin for pain. As such, based upon a thorough review of all available military medical documentation, AHRC determined the applicant did not meet the strict criteria for award of the PH. 11. The applicant provides: a. DA Form 689 dated 1 September 2003, which states the applicant was involved in an IED blast on 18 August 2003, which hurt his back, ears and head. It appears he was placed on 2 days quarters for a possible tympanic rupture of the left ear and a concussion. He was prescribed 40mg Motrin twice a day for pain, and was told to follow up in 1 week. b. SF 600 dated 6 December 2004, which notes the applicant had a loss of consciousness 3 days ago as well as a bout years ago, and several images of his brain, as evidence of the IED blast of 18 August 2003. c. Medical records dated 3 March and 22 July 2005, for his over 40 physical electrocardiogram. Auto Cites notes problems of fainting (syncope) and lumbago, which the applicant notes as TBI symptoms. d. A medical record dated 4 January 2006, for post-deployment mental health examination in which he was diagnosed with chronic PTSD. e. Medical records dated 19 April and 6 May 2006, in which he received a consult for his back locking up which he claims is due to the IED blast of 18 August 2003. Recent MRI revealed a 4mm protrusion with bilat foraminal components, which cause mild to moderate spinal canal stenosis and mild to moderate foraminal stenosis. Also with mild dessication at L4/5 and L5/S1. f. A sworn statement from SFC F dated 15 December 2018, who attests, in effect, sometime in August 2003, their convoy was attacked with several 155mm howitzer rounds set along the side of the road which detonated as the last vehicle in the convoy entered the target area. The applicant was in an unarmored Humvee located towards the rear of the convoy. Immediately after the blast, SFC F left his vehicle to check for casualties and damage and noticed the applicant looking very angry and confused. He was holding his ears and complaining of having a headache and back pain. In the time following the attack, he noticed changes in the applicant's mental and physical health. He seemed depressed, agitated, and angry all the time. He believes the applicant did not seek medical aid because of the hostile, demeaning, and harassing command climate they were subjected to on a daily basis. He has no doubt the injuries he received were the direct result of his exposure to the IED blast. g. An undated witness statement from B who states, in effect, after they pushed through the blast area, he saw the applicant making his way forward to get accountability of personnel and equipment. B noticed the applicant's walk was slower and stiffer than usual and he appeared dazed. The applicant was shaking his head, holding his ears and stating he had a bad headache, backache, and ringing ears from the blast. B told the applicant he needed to see the medic at the aid station once they returned to Taji. The applicant stated he did not want to go because he did not want to place more lives at risk due to the toxic leadership at Taji. The applicant walked a lot slower than normal and complained of his back hurting, headaches and ringing ears. He was more irritable than usual and appeared tired and unable to concentrate when speaking. B believes the applicant should have gone to the aid station to be evaluated for his injuries. h. A report dated 21 June 2018, in which he claims an abnormal back condition was caused by trauma. i. Numerous medical documents and images pertaining to his post-service medical treatment. A VA PTSD Disability Questionnaire on 9 December 2018, notes he was diagnosed with PTSD, major depressive disorder, chronic pain syndrome, and mild cognitive impairment. Clinical Findings noted the applicant's PTSD was diagnosed in 2006 while at Fort Sill, OK. It is further noted the applicant had conflicts with Command in Iraq in 2003, and developed significant stress and medical illnesses thereafter. j. Standard Forms 600 from February 2019, which note the applicant's history of exposure to IED explosions while deployed to Iraq in 2003, with a history of TBI, post- trauma amnesia and alteration of consciousness. k. Images of the applicant's cervical spine dated August 2019, in which he claims the broken bone fragments are the result of IED blast exposure in August 2003. l. A letter dated 7 August 2019, from Complete Eye Care in which the physician states the applicant has been under his care since 9 June 2017, and in his opinion, the changes in the applicant's refraction are more likely than not related to an IED attack and resultant TBI that affected the left side. m. A letter dated 9 September 2019, from Dr. B, Adult and Child Neurology, who states he reviewed the applicant's records and claims the applicant has post-concussive syndrome, chronic cervical disc disease, chronic lumbar disc disease, sensorineural hearing loss in the left ear and left retinal detachment. He claims the injuries are likely as not the result of an IED blast in August 2003. n. A Medical Opinion for a VA Disability Benefits Questionnaire dated 27 February 2020, which notes the applicant's mTBI with cognitive defects partial lobe damage and brain contusion and migraine headaches. The medical opinion reasons his claims are as likely as not related to combat IED exposure of 18 August 2003, since that was the beginning of all brain symptoms and headaches. 12. The PH 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. The PH may be awarded for concussion injuries caused as a result of enemy generated explosions: mTBI 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. MEDICAL REVIEW: 1. The Army Review Boards Agency (ARBA) Medical Advisor was asked to review this case. Documentation reviewed included the applicant’s ABCMR application and accompanying documentation, the military electronic medical record (AHLTA), the VA electronic medical record (JLV), the electronic Physical Evaluation Board (ePEB), the Medical Electronic Data Care History and Readiness Tracking (MEDCHART) application, the Army Aeromedical Resource Office (AERO), and the Interactive Personnel Electronic Records Management System (iPERMS). The ARBA Medical Advisor made the following findings and recommendations: a. The applicant is applying to the ABCMR requesting a Purple Heart for a TBI he stated he incurred on 18 August 2003 while conducting combat operations in Iraq. He states: “I was exposed to on August 18, 2003 caused me to have Post-Traumatic Amnesia, mTBI/Concussion with loss of consciousness, damage to the left parietal lobe of the brain with contusions migraine headaches, structural lesion, deviated nasal septum, tympanic membrane rupture of the left ear with severe hearing loss and tinnitus, detached retinal damage to the left eye causing choroidal nevus, blurry vision and diminished vision loss, memory loss, syncope, confusion, restrictive lung defect, attention disorder, confusion, concentration problems, severe mood swings and back/spinal injury with severe pain and impinged nerves with disk damage ... While deployed to Iraq in 2003 and since returning to Fort Sill, Oklahoma in 2004 until present I have been diagnosed and treated for the above conditions/symptoms to include damage to the my left parietal lobe of the brain with contusions.” b. The Record of Proceedings details the applicant’s military service and the circumstances of the case. His DD 214 shows he entered the regular Army on 20 October 1983 and was honorably discharged on 30 June 2006 after having acquired sufficient service for retirement. It shows he served in Iraq from 1 March 2003 through 1 October 2003. c. Paragraph 2-8 of AR 600-8-22, Military Awards (11 December 2006), lists the criteria for the awarding of the Purple Heart. Paragraph 2b lists the circumstances under which the injury is eligible for a Purple Heart (enemy action, friendly fire, peace keeping, etc.). Paragraph 2e states the wound and medical care requirements for the award: “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 medical personnel and records of medical treatment for wounds or injuries received in action must have been made a matter of official record. d. Paragraph 2g lists examples of injuries which justify the awarding of a Purple Heart, and this includes “Concussion injuries caused as a result of enemy generated explosions.” e. Paragraph 2-8k(3) of 600-8-22 succinctly lists the requirements for this award: Each approved award of the Purple Heart must exhibit all of the following factors: wound, injury or death must have been the result of enemy or hostile act; international terrorist attack; or friendly fire (as defined in paragraph b(8) above); the wound or injury must have required treatment by medical officials; and the records of medical treatment must have been made a matter of official Army records. f. The applicant references Army Directive 2011-07 (Awarding the Purple Heart) issued 29 April 2011. While it makes clear a concussion / mTBI may be eligible for the awarding of a Purple heart, paragraph 3 continues to maintain the eligibility criteria of AR 600-8-22: WHEN RECOMMENDING AND CONSIDERING AWARD OF THE PURPLE HEART, THE CHAIN OF COMMAND WILL ENSURE THE CRITERIA IN PARAGRAPH 2-8 OF REFERENCE 8 IS MET, AND THAT BOTH DIAGNOSTIC AND TREATMENT FACTORS ARE PRESENT AND DOCUMENTED IN THE SOLDIER'S MEDICAL RECORD BY A MEDICAL OFFICER. PARAGRAPH 4C BELOW DEFINES MEDICAL OFFICER. g. Paragraph 4C: “A MEDICAL OFFICER IS DEFINED AS A PHYSICIAN WITH OFFICER RANK.” h. In the remarks section of an Individual Sick Slip dated 1 September 2003 (with an illegible name stamp) apparently used to document the injury and completed and signed by the applicant: Was injured in IED blast on 8/8/2023 reroute to {not completely legible}. Hurt back, ears, and head. Ears hurt and ringing, headache i. Written in the disposition of patient section of the Sick Slip: 39-year-old male. SM {service member} c/o {complaining of} ringing in ears, headache & back pain after I.E.D attack x 2 weeks ago. Possible tympanic rupture (L) ear and concussion. FU {follow-up} 1 week. Motrin 400mg x 2 for pain. j. From a 15 December 2018 statement from a fellow retired Soldier on the IED blast he reports occurred “sometime in August 2003:” “First {Applicant}'s vehicle was an unarmored Humvee located towards the rear of the convoy. Immediately after the blast, we pushed through and then took up perimeter defense to investigate the blast zone. I left my vehicle to check for casualties and damage, where I immediately noticed First Sergeant {Applicant} looking very angry and confused. He was holding his ears and complaining of having a headache and back pain. Following the investigation on the attack, we continued on to the Oil Refinery to complete our mission.” k. Review of his encounters in AHLTA show no visits for possible IED blast residuals until he was seen by for an audiology evaluation on 6 February 2006. At that time, the applicant was noted to report mild-moderate hearing loss for 15 years and ringing in his right ear for 10 years. The exam was notable as “Both tympanic membranes were normal.” A previous left tympanic membrane rupture would have likely have been noted as present. l. Medical documentation submitted with the application is from a variety of sources and non-contemporaneous, dating from approximately 2006 thru 2019. It identifies several of the medical conditions the applicant lists in his statement. m. From a physician’s opinion dated 9 September 2019: “I have reviewed his medical records and records of treatment during civilian life. At this point, [Applicant] has: 1. Post-concussive syndrome. 2. Chronic cervical disc disease. 3. Chronic lumbar disc disease. 4. Sensorineural hearing loss in the left ear. 5. Left retinal detachment. These abnormalities have been confirmed by diagnostic studies by both military and civilian providers. It is as-likely as not that these injuries were the result of his blast injury in August 2003 while on active duty in Iraq.” o. Review of his records in JLV show that he been awarded multiple service connected disability ratings, with notable ratings of 30% for migraine headaches, 20% for a seizure disorder, and 10% for tinnitus. However, these determinations as well as the supporting documentation meet neither the wound definition or medical treatment requirements for the awarding of a Purple Heart IAW AR 600-8-22. p. It is the opinion of the ARBA Medical Advisor that the awarding of a Purple Heart is not warranted. BOARD DISCUSSION: 1. After reviewing the application and all supporting documents, the Board found relief is not warranted. 2. The Board concurred with the conclusion of AHRC and the ARBA Medical Advisor that the available evidence does not support a conclusion that the applicant incurred a concussive injury/TBI that met the criteria for award of the Purple Heart. The Board found insufficient evidence showing the applicant incurred 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, based on a preponderance of evidence, the Board determined the applicant's record should not be corrected to show he is entitled to the Purple Heart. BOARD VOTE: Mbr 1 Mbr 2 Mbr 3 : : : GRANT FULL RELIEF : : : GRANT PARTIAL RELIEF : : : GRANT FORMAL HEARING :XX :XX :XX DENY APPLICATION 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. REFERENCES: 1. Title 10, United States 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 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. 2. Army Regulation 600-8-22 states the PH is awarded for a wound sustained while in action against an enemy or as a result of hostile action. The PH may be awarded for concussion injuries caused as a result of enemy generated explosions: mTBI 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. 3. Army Regulation 15-185 (ABCMR) prescribes the policies and procedures for correction of military records by the Secretary of the Army, acting through the ABCMR. The ABCMR considers individual applications that are properly brought before it. The ABCMR will decide cases on the evidence of record. It is not an investigative body. The ABCMR begins its consideration of each case with the presumption of administrative regularity. The applicant has the burden of proving an error or injustice by a preponderance of the evidence. //NOTHING FOLLOWS//