ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS IN THE CASE OF: BOARD DATE: 29 October 2020 DOCKET NUMBER: AR20200002679 APPLICANT REQUESTS: The applicant requests award of the Purple Heart. APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: * DD Form 149 (Application for Correction of Military Record) * Military Acute Concussion Evaluation * Medical Records * two Memorandums For Record * letter from US Army Human Resources Command (HRC) FACTS: 1. The applicant did not file within the three year time frame provided in Title 10, United States Code (USC), section 1552 (b); however, the Army Board for Correction of Military Records 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 he is requesting the Board look into an injustice regarding a Purple Heart that he rightfully earned. He was hit by an improvised explosive device (IED) blast on 18 September 2008. He was diagnosed with a grade 2 concussion and was restricted from full duty for the remaining duration of his deployment. He provided copies of his medical record for the Board's consideration. He highlighted the areas he wanted the Board to be aware of, which show he was diagnosed with a concussion and was restricted from full duty. In support of his application he has included copies of medical records from a neuropsychologist, which show he may have sustained a brain injury. It took him several years to obtain the medical records regarding the incident. 3. His complete service medical records are not available for review; however he provides the following: a. A Chronological Record of Medical Care dated 18 September 2008 shows he arrived at the aid station post-IED blast of a military vehicle that struck the passenger side. He was diagnosed with Grade II concussion and given quarters for 24 hours, with a note to educate him on quarters and IED blast follow up protocol on 19 September 20o8 [the following day] if signs and symptoms persist. b. A Military Acute Concussion Evaluation form which shows he was evaluated on 18 September 2008 and shows he did not hit his head, he was not dazed, and did not suffer amnesia or blackouts. He did have "headache" symptoms. His diagnosis was a concussion without loss of consciousness. c. A Chronological Record of Medical Care dated 19 September 2008 that shows he was seen for IED follow-up medical care. His assessment shows his headaches were improving and he was given 72 hours of light indoor duty and was to return for follow-up in 72 hours [22 September 2018] or sooner if signs/symptoms worsened. d. A Chronological Record of Medical Care dated 22 September 2008, that shows he was seen for IED follow-up medical care, it shows he was having intermittent pressure in his temporal lobes and his mind was very active when lying down causing difficulty sleeping. He was diagnosed with a grade II concussion, prescribed indomethacin [used to treat mild to moderate acute pain] and trazadone [an antidepressant medicine that works to balance chemicals in the brain, to treat depression, anxiety, or a combination of depression or anxiety] and light indoor duty for 7 seven days [29 September 2008] or return to clinic for follow-up. e. A Chronological Record of Medical Care dated 29 September 2008 that shows he was seen for IED follow-up care that shows he his headaches and sleep disturbance was resolved. f. Two memorandums for record dated in March 2014 from his Commander and First Sergeant that verify the applicant's vehicle struck a single or double stack anti-tank mine while patrolling Iraq. The strike resulted in the applicant being diagnosed with a concussion and an inability to conduct further mounted or dismounted combat operations for the remainder of the deployment. 4. He received an Informal Physical Evaluation Board (PEB), as indicated on a DA Form 199, on 4 September 2014. The Board found the applicant was physically unfit for duty and recommended he receive a rating of 80 percent and that he be permanently retired due to disability. One of his disabilities was lumbar spine degenerative disc disease, which was onset in September 2008 following an IED blast in Iraq. The disability resulted from a combat related injury under the provisions of 26 US Code (USC) 104 or 10 USC 10216. 5. His Enlisted Record Brief (ERB), dated 30 September 2014, Section VIII (Awards and Decorations) does not reflect he was awarded the Purple Heart. 6. Proceedings from PEB, dated 17 September 2014, show he was found to be physically unfit. Traumatic Brain Injury/Post concussive was listed as one of his disabilities. 7. On 18 October 2019 the U.S. Army Human Resources Command notified the applicant they were unable to take action regarding his request for receipt of the Purple Heart, the available evidence did not meet the regulatory criteria to support award of the Purple Heart. 8. Army Regulation 600-8-22 (Military Awards) states the Purple Heart is awarded for a wound sustained 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 medical treatment from medical personnel, and the medical treatment must have been made a matter of official record. As it pertains to this case, it provides examples of injuries or wounds which clearly do not justify award of the Purple Heart, which includes 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. BOARD DISCUSSION: The Board noted that the criteria for award of the Purple Heart for mild TBI or concussions specifically require evidence of 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. The Board noted that, although the applicant was assigned to light duty after the IED incident, the medical records he provides show that his symptoms were minimal. The Board determined the degree of his concussive injury resulting from exposure to an IED blast did not rise to the level of severity required to be awarded 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. 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, USC, section 1552(b), provides that applications for correction of military records must be filed within three 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 three-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 (Military Awards) states the Purple Heart is awarded for a wound sustained 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 medical treatment from medical personnel, and the medical treatment must have been made a matter of official record. a. Examples of enemy-related injuries which clearly justify award of the Purple Heart are as follows: * injury caused by enemy bullet, shrapnel, or other projectile created by enemy action * injury caused by enemy-placed trap or mine * injury caused by enemy-released chemical, biological, or nuclear agent * injury caused by vehicle or aircraft accident resulting from enemy fire * concussion injuries caused as a result of enemy-generated explosions * 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 b. Examples of injuries or wounds which clearly do not justify award of the Purple Heart are as follows: * frostbite (excluding severe frostbite requiring hospitalization from 7 December 1941 to 22 August 1951) * trench foot or immersion foot * heat stroke * food poisoning not caused by enemy agents * chemical, biological, or nuclear agents not released by the enemy * battle fatigue * disease not directly caused by enemy agents * accidents, to include explosive, aircraft, vehicular, and other accidental wounding not related to or caused by enemy action * self-inflicted wounds, except when in the heat of battle and not involving gross negligence * PTSD * airborne (for example, parachute/jump) injuries not caused by enemy action * hearing loss and tinnitus (for example, ringing in the ears) * 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 * abrasions and lacerations (unless of a severity to be incapacitating) * bruises (unless caused by direct impact of the enemy weapon and severe enough to require treatment by a medical officer) * soft tissue injuries (for example, ligament, tendon, or muscle strains, sprains, and so forth) * first degree burns //NOTHING FOLLOWS// ABCMR Record of Proceedings (cont) AR20200000830 4 1