BOARD DATE: 6 April 2017 DOCKET NUMBER: AR20150016960 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: 6 April 2017 DOCKET NUMBER: AR20150016960 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: 6 April 2017 DOCKET NUMBER: AR20150016960 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. 2. The applicant states: a. He deployed to Iraq as a member of the Wisconsin Army National Guard (WIARNG) in support of Operation Iraqi Freedom. On 2 November 2005, he sustained concussion injuries due to a mortar explosion while a member of a convoy. b. He submitted a request to the U.S. Army Human Resources Command (HRC) asking to be awarded the Purple Heart. After a lengthy back and forth, an official denied his request, essentially stating hearing loss and tinnitus did not meet the regulatory criteria for award of the Purple Heart. The applicant asserts, however, his request was never based on hearing loss and tinnitus. Rather, he claims he sustained a mild traumatic brain injury (mTBI) and concussive injuries that did not involve the loss of consciousness. He further contends these injuries fall within the guidelines provided in Military Personnel (MILPER) Message 11-125 (Army Directive 2011-07 (Awarding the Purple Heart)), issued on 29 April 2011. c. There were two other incidents (on 14 June and 23 August 2005, respectively), but he had trouble getting the sufficient number of corroborating statements required. As such, he bases his current request solely on the injuries sustained during the 2 November 2005 mortar attack. (1) He did not immediately seek medical treatment after the 2 November 2005 mortar attack. There was no field medic with the convoy. Additionally, he did not recognize the severity of his injuries and believed what he was experiencing would be short-term; as the days passed, and the convoy continued, his symptoms worsened. He had to wait until 15 November 2005 to get medical assistance. This was when his unit returned to Camp Arifjan, Kuwait. (2) He continued to suffer from post-concussion residuals and sought medical treatment once more on 21 December 2005. He provides a DA Form 2173 (Statement of Medical Examination and Duty Status) to support this claim. He asserts it is evident that in 2005 the Army had not yet developed a standard for TBI or post-concussional syndrome screening. He states this because his Standard Form 600 (Chronological Record of Medical Care) appears to reflect either that there was no screening in place or that small aid stations in remote sites were not staffed to provide such technical screening. (3) After redeployment, his symptoms continued, and he went to the Department of Veterans Affairs (VA) for help. He filed a claim with the VA, and ultimately was awarded a 100 percent disability rating. He enrolled in the VA Healthcare program, where it was determined he had suffered a TBI, and his symptoms were treated. 3. The applicant provides: * DA Form 2-1 (Personnel Qualification Record - Part II) * Orders Number 289-236, dated 15 October 2004, with amendment * orders for the Combat Action Badge for service on 30 January 2005 * DD Form 214 (Certificate of Release or Discharge from Active Duty), ending 15 January 2006 * DA Form 4187, dated 21 October 2014 * photocopy of pictures showing the aftermath of two improvised explosive device (IED) blasts, undated * nine VA Forms 21-4138 (Statement in Support of Claim), dated between August 2014 and June 2015 * letters from HRC, including an undated letter showing denial of the Purple Heart request [according to HRC, the denial letter was signed on or about 16 September 2015] * Standard Forms (SFs) 600, dated between February and December 2005 * DA Form 2173, dated 21 December 2005 * VA medical records dated April 2009 * news article, dated 29 April 2011, titled Army clarifies guidance for Purple Heart award for concussion injuries CONSIDERATION OF EVIDENCE: 1. Having had prior enlisted service in the WIARNG, the applicant enlisted in the WIARNG on 6 September 2003. 2. He was ordered to active duty in support of Operation Iraqi Freedom on 21 October 2004. He deployed to Kuwait/Iraq between 23 December 2004 and 14 December 2005. He was honorably released from active duty due to completion of required active service on 15 January 2006. His DD Form 214 shows he completed 1 year and 28 days of net active service this period. 3. On 5 February 2007, he was honorably separated from the WIARNG, and transferred to the Retired Reserve. His National Guard Bureau (NGB) Form 22 (Report of Separation and Record of Service) shows he completed a total of 18 years, 1 month, and 29 days of service for pay, and 17 years and 5 months of total service for retired pay. 4. The applicant provides: a. VA Form 21-4138, dated 25 August 2014, with a handwritten statement prepared by the applicant on 13 June 2014, that describes three incidents (14 June, 23 August, and 2 November 2005, respectively). With regard to the events, and injuries incurred, on 2 November 2005, he states, in effect: * on that date, his convoy entered Forward Operating Base (FOB) Anaconda * after staging their vehicles and securing the area, he went to unwind in the Morale, Welfare, and Recreation (MWR) tent with his commander, Captain (CPT) JS, Staff Sergeant (SSG) TMP, and SSG SM * he was anxious to get to the telephone trailer to call home because it was his wedding anniversary, but SSG SM told him to relax * after about 45 minutes, he was heading toward the tent entrance when a mortar barrage hit the immediate area * the mortars landed close enough to make the dust fly off the lights in the tent, and cause the ground to shake * after the explosions were over, the telephone and computer trailers were badly damaged, and there were Soldiers who needed medical attention b. SF 600, dated 15 November 2005, showing a doctor at Camp Arifjan saw the applicant for joint pain localized in the shoulder, which he had for one month. The doctor indicated he was referring the applicant to the Orthopedic Clinic for further evaluation. This form also indicates: * injury was not work-related, and was not battle-related; category was a non-battle injury * diagnosis was tendonitis rotator cuff, bilateral shoulders * no indication of concussion-related symptoms, such as headaches, nausea, confusion, fatigue, depression, and amnesia c. Three SFs 600, dated 5, 6, 8, and 9 December 2005, respectively. All showed the reason for his visit was "other physical therapy;" and described physical symptoms related to shoulder pain. None of the SFs 600 mentioned any concussion-related symptoms. d. DD Form 2215E (Reference Audiogram), dated 20 December 2005, shows the applicant's hearing was evaluated. Item 25 (Remarks) indicates: * hearing test was performed as part of demobilization; both ear canals were clear; TMS (apparently referring to tympanic membranes) were intact but scarred * moderate mid to high frequency hearing loss in left ear; mild sloping to severe low to high frequency hearing loss in right ear * patient had a previous level 3 (significant limitations) hearing loss profile as well as medical board; was provided hearing aids through the military * most recently he deployed to Iraq and Kuwait from December 2004 to December 2005; exposed to noise (a number of noise sources listed, to include mortar attacks) [A physical profile is based on six body systems: "P" = physical capacity or stamina; "U" = upper extremities; "L" = lower extremities; "H" = hearing; "E" = eyes; and "S" = psychiatric (abbreviated as PULHES). Each factor has a numerical designation of "1" meaning a high level of fitness and "3" reflects significant limitations. Profiles can either be permanent (P) or temporary (T).] e. DA Form 2173, dated 21 December 2005, shows the applicant was seen at the Fort McCoy Troop Medical Center, Audiology Clinic. This form confirms hearing loss in both ears, and a severe high frequency hearing loss in his right ear. This form also mentions tinnitus. Item 15 (Details of Accident or History of Disease) states his hearing loss was caused by exposure to HET (Heavy Equipment Transport) vehicle noise, generators, IEDs within 60 meters between January and November 2005, small arms fire, mortars, heavy equipment loading noise, and high idle of HETs to run hydraulic equipment. No mention is made of any concussion-related symptoms. f. VA Form 21-4138, dated 6 October 2014, shows a statement by SSG (Retired) TMP, essentially stating: * he concurs with the applicant's statement regarding the events in November 2005 at FOB Anaconda [cited above]; their organization was supporting an armor unit by hauling their tanks * after loading equipment, they (the writer, the applicant, SSG SM, and CPT JS) made their way to the chow hall, and then to the MWR table to relax * when they were hit with the first mortar round, everyone at the table looked at each other in shock * as they headed toward the bunkers they encountered at least 3 more mortar rounds, all landing 50 to 75 meters away; the blasts were so intense, it took a couple of seconds to gain concentration * the first round at 50 yards was so close it sucked the air "in" the tent, like an implosion, and then blew the tent outward, as dust and debris blew about * after the mortars stopped, they met with the other members of their unit, and proceeded to do a roll call g. In a VA Form 21-4138, dated 19 June 2015, SSG (R) TMP provided a supplementary statement, stating, in effect, he wanted to more specifically identify the date as 2 November 2005. Furthermore, he was the truck master assigned to this mission; he was personally present and observed what happened. h. Two VA Forms 21-4138, dated 28 August 2014 and 13 June 2015, completed by SSG SM, that essentially state he affirmed the applicant's version of events [cited above]. Regarding the 2 November 2005 incident, he stated: * they were on a mission to haul tanks and, after dropping off the tanks and crews, they headed to the mess tent to eat; after they ate, he suggested they went to MWR to get a drink; he volunteered to buy * he remembers the applicant said he wanted to call his wife for their anniversary, but he convinced the applicant to stay and call her later * there was a rodeo on the TV, and everyone was watching, and laughing, and having a good time; all of a sudden he heard a whistling sound; the tent sucked in and then there was a "KABOOM" * he looked at the sky, the lights in the tent were rocking, and there was dust all around; his ears were ringing and he looked at his companions * they were yelling at him, but he could not make out what was said; they realized they had been hit with incoming mortars and headed toward the door to get to the bunkers * they waited for the all-clear siren, which seemed to take a long time; he was thankful he kept the applicant from calling his wife i. VA Medical Records, dated April 2009, showing a consultation for possible TBI. The progress note mentioned that injuries occurred in February and August 2005 (while deployed), and described multiple injury etiologies (to include being near IED, rocket-propelled grenade, and mortar explosions). The note also states the applicant did not suffer a loss of consciousness, and that he was receiving treatment of TBI. There is no specific reference made to the 2 November 2005 mortar blast. The document also indicated he had experienced a brain injury/concussion prior to being deployed. j. Letter, undated, from HRC, addressed to the applicant, states, after a thorough review of the information provided by the applicant, his claimed injury did not meet the statutory guidance outlined in Army Regulation (AR) 600-8-22 (Military Awards), paragraph 2-8 (Purple Heart) subparagraph h(12) (Examples of Injuries or Wounds which Clearly do not Justify Award of the Purple Heart - Hearing Loss and Tinnitus). REFERENCES: 1. AR 600-8-22, effective 25 June 2015, prescribes policies and procedures for military awards and decorations, to include the Purple Heart. It superseded Army Directive 2011-07, dated 29 April 2011. Regarding the Purple Heart, it states: 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 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. 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. c. Examples of enemy-related injuries which clearly justify award of the Purple Heart include concussion injuries caused by enemy-generated explosions, and a TBI or concussion that is severe enough to cause: * loss of consciousness * restriction from full duty due to persistent signs, symptoms, or clinical findings * impaired brain functions for a period greater than 48 hours from the time of the concussive incident 2. Article, American Journal of Clinical Medicine, Fall 2011, titled, "Bombings and Blast Injuries: A Primer of Physicians, written by DML (Medical Doctor, Fellow of American Academy of Emergency Physicians, Fellow of the American College of Emergency Physicians). a. The article describes blast physics for high-order explosives, stating HE blasts produce a supersonic over-pressure shock wave, wherein air is rapidly compressed, then, as the blast wave passes, the air is temporarily under-pressured before returning to the ambient pressure level [i.e., an implosion then expansion of air pressure]. b. Blast injuries are categorized as : * primary - caused by the over-pressure shock wave; commonly ears, lungs, and intestines are injured * secondary - results of shrapnel and flying debris; any body part can be affected * tertiary - the explosion's blast wind, causing individuals to be thrown; any body part can be affected * quaternary - any other related injuries, including those due to burns, toxic fumes, or crush injuries c. Among primary blast injuries, the tympanic membrane is most often damaged, and can sustain injury at pressures as low as 5 pounds per square inch. The lung is the second most common organ damaged due to primary blast effects. Primary blast injuries to the brain include concussion and barotrauma [trauma due to increases in pressure] caused by an acute gas embolism [blood vessel blockage caused by one or more bubbles of air in the circulatory system]. Symptoms of TBI include headache, nausea, confusion, fatigue, depression, and amnesia, as well as fixed neurological deficits. DISCUSSION: 1. The applicant requests award of the Purple Heart, and contends he suffered concussion injuries on 2 November 2005. In support of his request, he provides eyewitness statements and medical documentation. * eyewitness statements affirm a mortar blast occurred on 2 November 2005 that caused a loss of air pressure, creating an implosive effect, and this was followed by air being pushed out * witnesses further noted effects on hearing, but none reported a loss of consciousness; no one, to include the applicant, stated they sought medical treatment for ruptured eardrums or lung injuries * the applicant asserts a resulting blast-incurred mTBI, but his medical records, dated between 15 November and 9 December 2005, show only treatment for bilateral shoulder pain (listed as a 1-month old non-battle injury) * on his redeployment to Fort McCoy, he received a hearing evaluation; while hearing loss is confirmed, it also reflects he previously had a P3 hearing profile, and had already received hearing aids * a hearing evaluation also indicated his hearing loss was aggravated during deployment due to noise exposure, which included mortar explosions; no specific correlation was made to the 2 November 2005 incident * DA Form 2173 addressed only hearing loss; nothing was included regarding concussion-related symptoms and mTBI 2. The applicant also submitted VA medical documentation that indicates he was diagnosed with mTBI, but no specific connection was made to any particular event. Additionally, this document states the applicant experienced a brain injury prior to being deployed in support of Operation Iraqi Freedom. As such, while it is evident he did suffer an mTBI at some point (possibly even before his deployment), the evidence does not validate it occurred on 2 November 2005. 3. To be eligible for the Purple Heart due to an mTBI or concussion caused by enemy-generated explosions, the injury must be severe enough to have resulted in the loss of consciousness, the restriction from full duty due to persistent symptoms, and/or impaired brain functions for a period greater than 48 hours from the time of the concussive incident. Based on the available evidence, it does not appear the applicant met these criteria. //NOTHING FOLLOWS// ABCMR Record of Proceedings AR20150000953 Enclosure 1 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS ABCMR Record of Proceedings (cont) AR20150016960 2 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 1 ABCMR Record of Proceedings (cont) AR20150016960 9 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 2