BOARD DATE: 31 January 2017 DOCKET NUMBER: AR20150017314 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: 31 January 2017 DOCKET NUMBER: AR20150017314 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: 31 January 2017 DOCKET NUMBER: AR20150017314 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 is entitled to award of the Purple Heart because of head trauma he sustained from the debris of an improvised explosive device (IED) on 9 June 2006. b. Military medical records were never properly updated due to multiple relocations on the Forward Operating Base Camp H?t, Iraq. The military medics who were deployed to these locations only kept the paperwork on severe injuries that needed more attention, such as the loss of a limb. The medics never kept any records of small IED injuries resulting from the destruction of tanks by IED blasts that occurred on a weekly basis. He was fortunate to have a copy of a medical record that was thrown in the trash the day after he was seen. He only obtained one written document that clearly stated he was hit by an IED and lost his hearing. The follow-up medical treatment he received, along with the medication, was all verbal to rush him back into the field. c. He currently receives 60-percent service-connected disability compensation from the Department of Veterans Affairs (VA) for the injuries he sustained in Iraq and he has a witness statement from an officer proving he was injured. He lost 10 percent of his hearing and sustained an eye injury, back injury, knee injury, post-traumatic stress disorder (PTSD), and traumatic brain injury from the IED blast. d. On 1 September 2015, he received a letter in the mail from the U.S. Army Human Resources Command (HRC) stating he was denied award of the Purple Heart. He then submitted additional documents and now requests a personal appearance to appeal this decision. No one has contacted him regarding his request for a personal hearing. 3. The applicant provides: * two self-authored statements * numerous pages of Army medical records from active duty service * Ten Broeck Dupont Hospital Psychological Evaluation, dated 18 July 2007 * Ten Broeck Dupont Hospital discharge documents, dated 15 August 2007 * Enlisted Record Brief * Record of Emergency Data * Preseparation Counseling Checklist for Active Component Service Members * Headquarters, U.S. Army Armor Center and Fort Knox, Orders 072-0165, dated 12 March 2008 * DD Form 214 (Certificate of Release or Discharge from Active Duty) * Periodic Health Assessment (U.S. Army Reserve and Army National Guard), dated 18 July 2009 * Functional Capacity Certificate, dated 18 July 2009 * DA Form 3349 (Physical Profile), dated 11 August 2008 * Results of Periodic Health Assessment, dated 17 August 2009 * Radiology Reports, Consult Requests, and Progress notes, from unnamed Federally Qualified Health Center, printed 12 October 2011 * Army Review Boards Agency letter, dated 14 January 2015 * two witness statements * HRC Awards and Decorations Branch letter, dated 1 September 2015 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 1 February 2005. He deployed to Iraq from 13 November 2006 through 10 February 2007. 3. A Standard Form 600 (Chronological Record of Medical Care), dated 9 June 2006, shows he complained of ringing in the left ear after an IED blast exploded near the vehicle in which he was the gunner. He had a loss of hearing in the right ear, no headache, and no dizziness. Notes regarding his head state it is "NC/AT [normorcephalic/atraumatic]," meaning a normally shaped head/not caused by trauma. Notes also indicate two scratches to the posterior right side of his head. The notes regarding his eyes state "PERRLA [pupils are equal, round, and reactive to light and accommodation]" and "EOMI [extraocular movements are intact]." He was prescribed Aurodex otic solution (medication used to relieve pain, congestion, and swelling caused by middle ear inflammation) and Motrin (ibuprofen). The document is unsigned by a medical professional. 4. A Standard Form 600, dated 18 April 2007, shows he was seen at the Landstuhl Regional Medical Command Hanau Optometry Clinic on that date. His chief complaint was mild blurred vision at both near and distance noted since the IED blast in August 2006 when the vehicle he was in was hit and oil was splashed into his eyes. His eyes were immediately rinsed with saline following the exposure to oil. He reported his vision clears with concentration on objects both near and far. He also reported a separate IED blast in July 2006 where he hit the right side of his head and lost some hearing in his right ear due to the impact against the Humvee (High Mobility Multipurpose Wheeled Vehicle) door. He reported the onset of temporal headaches along the right side of his head approximately three times per week at an occurrence rate of three times per day. Pain is at a 9/10 level and has worsened since the initial blast. He reported vomiting after eating and nose bleeds approximately one to two times per week with recent onset of floaters in vision. The physical findings of his eyes after examination were normal. 5. A Standard Form 600, dated 21 May 2007, shows he was again seen by an optometrist as a follow-up visit for suspected retinal hemorrhage. He was found to have vitreous (the jelly-like fluid substance inside the eye between the lens and retina) membranes and strands in both eyes and a corneal scar to his left eye. 6. His Ten Broeck Dupont Hospital Psychological Evaluation shows he was admitted to the hospital on 18 July 2007 for psychological evaluation to assess his emotional functioning based on a history of depressive symptomology. He reported he had hearing loss as a result of an IED attack in July 2006 and had difficulty with his short-term memory and peripheral vision. He indicated he incurred two traumas to his head while in Iraq and witnessed significant violence, resulting in frequent flashbacks and nightmares. He was diagnosed with PTSD and severe major depression. He was routinely discharged from the hospital on 15 August 2007. The referral notes show he would be advised by the Fort Knox Behavioral Health Department for further treatment. 7. His DD Form 214 shows he was honorably released from active duty on 29 May 2008 due to completion of required active service. He completed 3 years, 3 months, and 29 days of active service. 8. He enlisted in the U.S. Army Reserve on 1 November 2008. 9. His Periodic Health Assessment (U.S. Army Reserve and Army National Guard), dated 18 July 2009, shows he claimed he was receiving VA service-connected disability compensation for PTSD, right knee, lower back, right ear injury, and chronic headaches due to an IED blast while deployed to Iraq in the summer of 2006. 10. His Standard Form 600, dated 18 July 2009, notes he was diagnosed with PTSD by medical professionals at the VA due to claustrophobia, night sweats, insomnia and receiving 50 percent service connected disability from the VA for PTSD, right knee, and lower back pain he sustained while serving as the gunner in a vehicle that was hit by an IED in July 2006. This form notes he should be considered for a medical evaluation board. 11. His Functional Capacity Certificate, dated 18 July 2009, states the examiner finds he has the physical limitations of PTSD, right knee injury, and lower back pain, and he finds these limitations to be permanent. 12. His DA Form 3349, dated 11 August 2009, shows he was issued a permanent physical profile rating of "2" under the lower extremities factor and "3" under the psychiatric factor for PTSD, claustrophobia, back pain, and right knee injury. 13. A Radiology Report, printed 12 October 2011, shows he received a magnetic resonance imaging examination for a TBI evaluation on 5 August 2011 at the VA Evanston Community-Based Outpatient Clinic, Evanston, IL. The diagnostic impression states: "Single tiny nonspecific T2 hyperintense focus in the subcortical white matter of the right front lobe. Etiology uncertain, may be related to mild traumatic brain injury in the appropriate clinical setting. No other intracranial abnormalities." The primary diagnostic code is shown as "minor abnormality." 14. A Progress Note from the same clinic, dated 11 October 2011, shows he received a combined 50-percent service-connected disability rating for the following disabilities at the following percentages: * PTSD – 50 percent * tendon inflammation – 10 percent * lumbosacral or cervical strain – 10 percent * tinnitus – 10 percent * limited flexion of knee – 0 percent * migraine headaches – 0 percent * allergic or vasomotor rhinitis – 0 percent * impaired hearing – 0 percent 15. He was honorably discharged from the U.S. Army Reserve effective 12 January 2014. 16. He provided two witness statements, dated 21 and 23 April 2015, one from Major J____ E____ and one from Specialist E____ M____. a. Major J____ E____ states: (1) On 9 June 2006, 2nd Platoon, Alpha Company, 1st Battalion, 37th Armored Regiment, was conducting a mounted patrol in the vicinity of Al H?t, Al Anbar Province, Iraq. He was the vehicle commander for the second vehicle in a four-vehicle convoy. The applicant was in the turret. As the vehicle crossed an intersection, an IED composed of four 130-millimeter rockets concealed in an 18-inch deep rain gutter-style culvert detonated on the far corner, roughly 5 feet from the right side of their vehicle as it passed. (2) The blast blew his door open and cracked the ballistic glass of the door behind him. Concrete and asphalt showered the vehicle, with several pieces striking the applicant. They established a perimeter and called for an explosive ordnance disposal (EOD) team. He asked everyone if they were okay and the applicant informed him that he had been hit by fragments of concrete, that his ears were ringing, and that he had a particularly hard time hearing. (3) When the EOD technician entered the hole to conduct a post-blast analysis, he could no longer be seen from street level, thus he estimates the hole to have been at least 6 feet deep. The EOD technician stated that most of the shrapnel was contained in the blast hole due to the depth of the culvert and that they were very lucky. They were directed to the nearest aid station, as traumatic brain injury (TBI) as a result of a blast was a new priority in military medicine, and the applicant's injuries bore further professional observation. He left his platoon roughly 3 weeks later to assume a new position, thus further observation on his part was not possible. b. Specialist E____ M____ states: (1) On 9 June 2006, their section was tasked with manning a traffic control point on Route Bronze in the city of Al Hit, Iraq. The Humvee he was driving took over-watch of the western portion of the traffic control point while the Humvee the applicant was in over-watched the eastern portion, perhaps 200 meters down the road from their position. It was part of their unit standard operating procedures to regularly change the vehicle's position to make the possibility of ambush more difficult. (2) Around noon that day, they heard an explosion coming from the 6 o'clock position in relation to them. When they looked back, they could see smoke coming from the general vicinity of where the other Humvee would have been located. When they could not get radio contact with the other Humvee, they drove over to the other position as quickly as possible. When they arrived, they saw the applicant and the rest of the crew dismounted and taking up fighting positions. The Humvee was severely damaged from what they later found out was a land mine. Apparently they had driven over the land mine when they were making a regular change in their positon. (3) They made room in their Humvee for their whole crew until the quick reaction force could arrive at the scene and set up a cordon so the Humvee could be examined by EOD and retrieved by maintenance personnel. The explosion punched a hole in the corner of the Humvee that was maybe 1 or 2 feet in diameter. 17. The Chief, HRC Awards and Decorations Branch, informed the applicant in a letter, 1 September 2015, that his request for award of the Purple Heart for injuries he received while deployed in support of Operation Iraqi Freedom was disapproved. The letter states award of the Purple Heart is limited to members of the Armed Forces of the United States who have been wounded or killed as a direct result of enemy action. The diagnosis and treatment in the medical documentation provided did not meet the criteria for award of the Purple Heart. He was advised that he had the right to appeal to the ABCMR if he believed this determination to be unjust. REFERENCES: 1. 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 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. 2. Military Personnel Message Number 11-125 (Army Directive 2011-07 (Awarding the Purple Heart)), dated 29 April 2011, stated the Secretary of the Army approved Army Directive 2011-07. The directive provides clarifying guidance to ensure the uniform application of advancements in medical knowledge and treatment protocols when considering recommendations for award of the Purple Heart for concussions (including mild traumatic brain and concussive injuries that do not result in a loss of consciousness). It verified award of the Purple Heart for a TBI is retroactive only to 11 September 2001. It reiterated that when recommending and considering award of the Purple Heart, the chain of command will ensure that both diagnostic and treatment factors are present and documented in the Soldier's medical records by a medical officer. 3. Army Regulation 15-185 (Army Board for Correction of Military Records) prescribes the policies and procedures for correction of military records by the Secretary of the Army acting through the ABCMR. The ABCMR begins its consideration of each case with the presumption of administrative regularity. The ABCMR will decide cases on the evidence of record. It is not an investigative body. The applicant has the burden of proving an error or injustice by a preponderance of the evidence. Paragraph 2-11 states applicants do not have a right to a formal hearing before the ABCMR. The Director or the ABCMR may grant a formal hearing whenever justice requires. DISCUSSION: 1. The applicant's request for award of the Purple Heart for head trauma resulting from an IED blast in Iraq was carefully considered. 2. Although he requested to personally appear before the Board, there is sufficient evidence available for fair and impartial consideration of his case without such an appearance. 3. While regulatory guidance allows for awarding the Purple Heart for a TBI or concussive injury sustained as a result of hostile action, substantiating evidence must be provided to verify the TBI or concussive injury was the result of hostile action, required treatment by medical personnel, and the medical treatment was made a matter of official record. 4. The witness statements he provided, along with his own claims, place him as the gunner of a Humvee in Iraq when an IED exploded nearby in the summer of 2006. An unsigned medical document from the day of the explosion shows he suffered ringing in his left ear and hearing loss in his right ear. It does not reference TBI, headache, or concussion. 5. A VA radiology report from 12 October 2011 states he may have suffered a mild TBI. That MRI is inconclusive and does not show he definitively suffered a TBI in 2006 because of an IED. 6. There is no evidence in the applicant's official military or medical service records corroborating he sustained a TBI or concussive injury resulting from hostile action while deployed to Iraq that would constitute grounds 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) AR20150017314 2 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 1 ABCMR Record of Proceedings (cont) AR20150017314 8 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 2