IN THE CASE OF: BOARD DATE: 28 April 2016 DOCKET NUMBER: AR20150010278 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: 28 April 2016 DOCKET NUMBER: AR20150010278 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 action on 8 February 2007 in Iraq * adding to his DD Form 214 the Purple Heart _______ _ _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: 28 April 2016 DOCKET NUMBER: AR20150010278 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 for a concussion injury received in Iraq on 8 February 2007. 2. The applicant states at the time of his injury, there was some ambiguity as to whether a concussion was enough to award the Purple Heart. The governing regulation has been updated to allow a Purple Heart for concussion injuries. He adds, in effect, that: a. He served as an infantryman from 1999 to 2008. In 2007, he was a section leader of an infantry platoon while on his second deployment. He was the commander of a Bradley Fighting Vehicle (BFV) and while conducting combat operations in Baqubah, Iraq, he was rendered unconscious by an enemy improvised explosive device (IED). He regained consciousness moments later and was transported to the Forward Operating Base (FOB) for further evaluation. He was diagnosed with a concussion by a medical officer. At the time this happened, he was not put in for a Purple Heart award because they used a "blood or bones" policy for Purple Hearts. The guidelines have since changed or been clarified. b. He applied to the U.S. Army Human Resources Command (HRC) but his application was returned without action on the basis that he does not have a statement from "at least two individuals other than the proposed recipient, who were personally present, observed the incident and had direct knowledge of the event." The problem with this requirement is that in a mechanized infantry platoon, a BFV in patrolling duty is manned by only 3 personnel; in this case it was him as the vehicle commander, his gunner and the driver. He has lost contact with both the gunner and driver as many years have passed and the driver was hurt in another IED incident while they were in theater and was medically evacuated and later medically discharged while he was still in the theater of operations. c. HRC cited that "Veterans Affairs (VA)" documents or diagnosis are not sufficient in and of themselves for determining award of the Purple Heart. He did not submit a single page with VA documentation of any kind. He submitted copies of original medical records from the time that he was on active duty, i.e., Standard Form 600 (Chronological Record of Medical Care). d. He thinks it's obvious Major (MAJ) (now Lieutenant Colonel) C--, who wrote a statement in support of his application, would not risk his rank and military career for a former Soldier if the incident had not really occurred. His commander may not have been in the BFV when the explosion took place, but when he (the applicant) was medically evacuated to the FOB's medical tent the commander was present. It is a common occurrence for the commander (if possible) to go see about Soldiers who are hurt in sector. 3. The applicant provides: * Letter from HRC returning his request for award of the Purple Heart without action * Memorandum for Record (MFR) from LTC C-- (former company commander) (he was a MAJ at the time) * DD Form 214 (Certificate of Release or Discharge from Active Duty) * Enlisted Record Brief * Unit deployment orders * Standard Form 600, dated 8 February 2007 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 3 November 1999 and he held military occupational specialty 11B (Infantryman). He served through two reenlistments in a variety of assignments. He was honorably discharged on 22 October 2008. His DD Form 214 does not list the Purple Heart. 3. His records do not contain orders awarding him the Purple Heart and it is unclear if his theater chain of command initiated/processed a Purple Heart for him at the time. However, after his discharge, he submitted a request to HRC for award of the Purple Heart. He enclosed an MFR, dated 7 March 2014, from MAJ C-- C--, the commander of Company A, 1st Battalion, 12th Cavalry, who stated: a. The purpose of this memorandum was to provide documentation to prove the applicant was injured on 8 February 2007, suffering a concussion, as a result of being the Bradley Commander in a vehicle that struck an IED. The applicant served in Company A, 1st Battalion, 12th Cavalry, while in Baqubah, Iraq from October 2006 to October 2007. During this tumultuous time the applicant served as a Bradley section leader in the 2nd Platoon. During this time, enemy activity was extremely high, emplacing both IEDs and complex ambushes. The applicant was involved in multiple IED strikes throughout this period, resulting in many physical and psychological wounds. b. On 8 February 2007, the applicant and his section were serving as the battalion's Quick Reaction Force. His section was activated to go assist another unit with a vehicle that had struck an IED, resulting in a disabled vehicle. After leaving the FOB, enroute to assist, the applicant’s vehicle struck another IED while travelling along Route Victory, just north of Baqubah. During the blast, the applicant sustained a concussion and was evacuated back to the FOB for medical treatment. He was treated by doctors at the brigade's medical clinic on FOB Warhorse and received 2 days in quarters to allow him to recover from the concussion. c. At the time of the incident, the Brigade and the Army had a policy that prevented Soldiers from being awarded the Purple Heart for concussions. Since then, this policy has been rescinded. Therefore, as his commander at the time of the incident, he recommends the applicant for a Purple Heart. 4. He also provided a Standard Form 600, dated 8 February 2007. This form indicates the applicant had an appointment due to an injury caused by an explosion. He reported to the clinic 1 hour post the IED encounter. He was a Bradley commander and the explosion occurred directly underneath the vehicle, toward the left side. No death or serious injury was reported inside the vehicle and no fragments penetrated the vehicle. The applicant was wearing his protective gear. He denied loss of consciousness and stated he had a headache, neck pain, tightness in the chest, and pain in the left ear. He also stated that he had tinnitus which had now resolved. On examination, everything seemed normal (vital signs, head, eras, nose, oral cavity, pharynx, larynx, neck, lymph nodes, chest, lings, back, abdomen, musculoskeletal system, and neurological system). The examining individual made two entries of significance: a. Diagnosis: He was diagnosed with a concussion, given Tylenol and quarters (duration unlisted), and instructed to return on 9 February 2007 for reevaluation, or sooner if symptoms change. He was also diagnosed with allergic rhinitis b. Disposition: His disposition is not clearly indicated on this form. The examiner entered the words "Sick at home/quarters for: blank entry," "Follow-up: As needed," and "Injury/Illness: Work related, Onset date 2/8/2007; Battle Related; Category: Injuries, Motor Vehicle Accidents, Cause: Battle injury/illness." 5. On 3 March 2015, HRC responded to his request. An official at the Awards and Decorations Branch stated: a. The applicant's request for award of the Purple Heart for injuries received while deployed in support of Operation Iraqi Freedom was returned without action. It was not a disapproval, rather a request for missing documentation. b. Army Regulation 600-8-22 (Military Awards), dated 11 December 2006, paragraph 2-8; Army Directive 2011-07, dated 18 March 2011; and Military Personnel (MILPER) Message 11-125, dated 29 April 2011, provide guidance for the Purple Heart award and submission requirements. c. After careful review, the following documents are required: Statements from at least two more individuals other than the proposed recipient, who were personally present, observed the incident and had direct knowledge of the event; other official documentation may be used to corroborate the narrative. d. HRC acknowledged receipt of the statement from MAJ C----; however, it did not appear he was personally present and observed the incident that occurred on 8 February 2007. VA documents or diagnosis are not sufficient in and of themselves to determine award of the Purple Heart. His request must be submitted to that office with the required documentation listed above for a final determination. If he desired to resubmit this request, he must ensure his packet included all documentation listed in accordance with MILPER Message 11-125. REFERENCES: 1. Army Regulation 600-8-22 provides that 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 the wound was the result of hostile action, the wound must have required medical treatment, and the medical treatment must have been made a matter of official record. a. 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. b. Examples of enemy-related injuries which clearly justify award of the Purple Heart are as follows: (1) injury caused by enemy bullet, shrapnel, or other projectile created by enemy action; (2) injury caused by enemy-placed mine or trap; and (3) concussion injuries caused as a result of enemy-generated explosions. 2. MILPER Message 11-125, dated 29 April 2011, announced that the Secretary of the Army approved Army Directive 2011-07 (Awarding the Purple Heart) to provide clarifying guidance when considering recommendations for award of the Purple Heart for concussions, including mild traumatic brain injury (TBI), that do not result in the loss of consciousness. This message does not change the standards for award of the Purple Heart for concussion injuries. When recommending and awarding the Purple Heart, the chain of command will ensure that both the diagnostic and treatment factors are present and documented in the Soldier's record by a medical officer. a. Some of the examples, signs, symptoms, or medical conditions documented by a medical officer or medical professional that meet the criteria include diagnosis of concussion or mild TBI; any period of loss or a decreased level of consciousness; any loss of memory for events immediately before or after the injury, neurological deficits; limitations of duty following the incident (limited duty, quarters); pain medications such as acetaminophen, aspirin, or ibuprofen to treat injury such as headache; or referral to a neurologist to treat the injury. Downtime and rest periods do not constitute qualifying treatment. b. The request, forwarded to HRC for approval, is to include a DA Form 4187 (Personnel Action) with chain of command recommendations; deployment orders; DD Form 214; narrative describing qualifying incident and the conditions under which the Soldier was injured; statements from at least two individuals, other than the recipient, who were personally present, observed the incident, and have direct knowledge of the incident; a casualty report; and chronological records of medical care. c. On request from the Soldier, Army officials shall conduct a one-time reconsideration of a previously-denied Purple Heart relating to concussion injuries. DISCUSSION: The applicant was involved in an IED explosion on 8 February 2007. a. MILPER Message 11-125, dated 29 April 2011, provided clarifying guidance when considering recommendations for award of the Purple Heart for concussions, including mild TBI that does not result in the loss of consciousness. This message does not change the standards for award of the Purple Heart for concussion injuries. b. The applicant neither lost nor experienced decreased consciousness, he did not experience a loss of memory for events immediately before or after the injury, and he suffered no neurological deficits or limitations of duty following the incident. He was given Tylenol (for his headache) and appears to have been released to duty. Although the medical form does not indicate the duration of "quarters," it indicated that his disposition was “sick at home/quarters." This was further confirmed by the former commander's statement that the applicant was given 2 days quarters. c. More important, however, is the fact that the applicant was diagnosed with "concussion." MILPER Message 11-125 clarified the guidance when considering recommendations for award of the Purple Heart and included concussions. d. It appears he meets the criteria for award of the Purple Heart. //NOTHING FOLLOWS// ABCMR Record of Proceedings AR20150000953 Enclosure 1 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS ABCMR Record of Proceedings (cont) AR20150010278 2 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 1 ABCMR Record of Proceedings (cont) AR20150010278 6 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 2