IN THE CASE OF: BOARD DATE: 2 February 2017 DOCKET NUMBER: AR20150016111 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 IN THE CASE OF: BOARD DATE: 2 February 2017 DOCKET NUMBER: AR20150016111 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. IN THE CASE OF: BOARD DATE: 2 February 2017 DOCKET NUMBER: AR20150016111 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 reconsideration of his previous request for correction of item 28 (Narrative Reason for Separation) on his DD Form 214 (Certificate of Release or Discharge from Active Duty) to show he was retired for permanent disability. He also requests to be awarded the Purple Heart (PH). 2. The applicant states his DD Form 214 should reflect that he is medically retired due to a physical disability and wants the PH added to his DD Form 214. 3. The applicant provides: * DD Form 214 * DA Form 2173 (Statement of Medical Examination and Duty Status), dated 7 May 2009 * DA Form 3947 (Medical Evaluation Board Proceedings), dated 6 April 2010 * Orders D167-20, issued by the Department of the Army (DA), U.S. Army Physical Disability Agency (PDA), dated 16 June 2010 * Department of Veterans Affairs (VA) Rating Decision, dated 21 January 2014 CONSIDERATION OF EVIDENCE: 1. The applicant requests reconsideration of the Army Board for Correction of Military Records (ABCMR) decision, Docket Number AR20140014089, dated 7 April 2015. The Board may reconsider decisions if the applicant submits new evidence or argument. The applicant has not submitted any new evidence or argument that was not previously considered by the Board. Therefore, the issue of the narrative reason for separation will not be further discussed in these proceedings. If the applicant has new evidence or argument related to this matter, he may submit a new application to the ABCMR. 2. With prior enlisted service in the Regular Army, the applicant enlisted in the Kansas Army National Guard (KSARNG) on 16 August 2004. 3. Orders 222-324, issued by Land Component, Joint Forces Headquarters, Kansas, dated 10 August 2005, show he was ordered to active duty effective 1 September 2005. 4. On 4 December 2006, the applicant was honorably released from active duty and transferred to the KSARNG. The DD Form 214 issued at time shows in: * item 12f (Foreign Service) – “0000 11 22” * item 18 (Remarks) – “ORDERED TO ACTIVE DUTY IN SUPPORT OF OPERATION IRAQI FREEDOM [OIF]” AND “SERVICE IN IRAQ 20051110-20061101 * item 23 (Type of Separation) – “RELEASE FROM ACTIVE DUTY” * item 28 – “COMPLETION OF REQUIRED ACTIVE SERVICE” 5. A DA Form 2173, dated 7 May 2009, shows the applicant had multiple injuries stemming from his OIF deployment from November 2005 to November 2006. He was exposed to pesticides while working in a guard tower, and he also "sprung" his knee while reacting to a rocket propelled grenade (RPG) attack. He threw another Soldier in his tower over his knee trying to hit the dirt. The applicant had his knee looked at and was told he needed an MRI, but because his unit was gearing up to head back to the states, he decided to wait until he was stateside. 6. A DA Form 3947, dated 6 April 2010, shows the following diagnoses, which were incurred while entitled to basic pay, did not exist prior to service, and were permanently aggravated by service: * knee pain bilaterally, left greater than right – approximate date of origin 3 May 1999 * lower back pain – approximate date of origin 3 May 1999 * right shoulder pain – approximate date of origin 15 October 1996 * irritable bowel syndrome (IBS) – approximate date of origin 24 July 2006 7. On 20 May 2010, a Physical Evaluation Board (PEB) convened to determine his fitness for retention for continued Reserve service. The PEB found him physically unfit for military service with a combined service-connected disability rating of 40 percent. The PEB recommended that he be retired due to permanent disability. 8. Orders D167-20, issued by the U.S. Army Physical Disability Agency, Washington, DC, dated 16 June 2010, show he was placed on the Permanent Disability Retired List effective 21 July 2010. His disability was based on an injury or disease that he received in the line of duty (LOD) as a direct result of armed conflict or caused by an instrumentality of war and was incurred in the LOD during a war period as defined by law. 9. The applicant provides a letter from the VA, dated 4 August 2014, which states he was awarded disability compensation for: * migraine headache/headaches (previously included at a non-compensable level with a diagnosis of a traumatic brain injury (TBI)) associated with residual of TBI at 50 percent * post-traumatic stress disorder (PTSD) at 50 percent * IBS at 30 percent * degenerative joint disease of the right shoulder at 10 percent * spinal stenosis of the lumbar region and disc protrusion, previously lumbar strain at 10 percent * residuals of TBI at 10 percent * left knee subluxation at 10 percent * status post arthroscopic chondroplasty patella, left knee (previously rated as degenerative joint disease) at 10 percent * right knee partial ACL tear with degenerative arthritis at 10 percent * bilateral tinnitus at 10 percent REFERENCES: Army Regulation 600-8-22 (Military Awards) provides that 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: a. Examples of enemy-related injuries which clearly justify award of the PH are as follows: injury caused by enemy bullet, shrapnel, or other projectile created by enemy action; injury caused by enemy placed mine or trap; injury caused by enemy released chemical, biological, or nuclear agent; injury caused by vehicle or aircraft accident resulting from enemy fire; and/or concussion injuries caused as a result of enemy generated explosions. b. Examples of injuries or wounds which clearly do not justify award of the PH are as follows: frostbite or trench foot injuries; 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; post-traumatic stress disorders; and/or jump injuries not caused by enemy action. c. The PH differs from all other decorations in that an individual is not "recommended" for the decoration; rather he or she is entitled to it upon meeting specific criteria. When contemplating an award of this decoration, 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 the award. DISCUSSION: 1. The criteria for an award of the PH require the submission of substantiating evidence to verify that the injury/wound was the result of hostile action, the injury/wound must have required treatment by medical personnel, and the medical treatment must have been made a matter of official record. 3. It is unclear what injury the applicant believes met the criteria for the PH, since it appears he had multiple injuries stemming from his OIF deployment from November 2005 to November 2006. a. The applicant sustained a knee injury and was treated for this injury when he returned to the United States. It appears the injury was not severe enough to warrant immediate action. Additionally, nowhere on any of his medical records does it show the injury was caused directly by the RPG. Absent a casualty report, witness statements, or other documentary evidence confirming his knee injury in the tower was caused by the RPG itself, it appears this injury resulted from an unfortunate accident during his reaction to the RPG. Army Regulation 600-8-22, states accidental injuries do not justify award of the PH. b. The available records do not show he incurred a TBI as a result of hostile action.. c. The applicant’s medical examination on 7 May 2009 shows he was exposed to pesticides while working in a guard tower; however, Army Regulation 600-8-22 also states, in pertinent part, that injuries or wounds incurred as a result of chemical, biological, or nuclear agents not released by the enemy are not a basis for award of the PH. //NOTHING FOLLOWS// ABCMR Record of Proceedings AR20150000953 Enclosure 1 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS ABCMR Record of Proceedings (cont) AR20150016111 2 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 1 ABCMR Record of Proceedings (cont) AR20150016111 5 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 2