IN THE CASE OF: BOARD DATE: 7 June 2018 DOCKET NUMBER: AR20160006494 BOARD VOTE: Mbr 1 Mbr 2 Mbr 3 :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: 7 June 2018 DOCKET NUMBER: AR20160006494 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, in effect, award of the Purple Heart for combat injuries he sustained on 17 December 2007 while deployed to Iraq. 2. He states that he has provided more than the required documentation for award of the Purple Heart for injuries sustained as the result of an enemy terrorist blast (Improvised Explosive Device (IED)). He contends that he received small pieces of shrapnel to his face and forehead and received treatment for his injuries at the Troop Medical Clinic (TMC) at Camp Taji, Iraq. 3. He provides: * medical records * four witness statements * a self-authored narrative * Combat Action Badge, dated 18 February 2008 * DD Form 214 (Certificate of Release or Discharge from Active Duty), ending 31 May 2008 * Post-Deployment Health Re-Assessment (PDHRA), dated 20 February 2009 * DA Form 2173 (Statement of Medical Examination and Duty Status) * DA Form 4187 (Personnel Action), dated 30 December 2014 * two Requests for Award of the Purple Heart, dated 20 January 2015 * U.S. Army Human Resources Command (HRC) memorandum, dated 31 March 2015 * Purple Heart Request, dated 3 February 2016 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 California Army National Guard (CAARNG) on 26 January 2007. He served in Iraq from 2 September 2007 to 27 April 2008. 3. He provides the following: a. Permanent orders 049-038, issued by the 316th Sustainment Command (Expeditionary), awarding the applicant the Combat Action Badge, for engaging or being engaged by the enemy on 16 December 2007 while assigned to the 1st Battalion, 143rd Field Artillery Regiment. b. Medical records which show that on 17 December 2007, he was treated for an injury from a terrorist explosion blast. The applicant reported getting hit by an IED while on convoy. He complained of ringing in his left ear, soreness in his neck due to the explosion moving his head back and forth, and tenderness on his forehead where he was hit with shrapnel. The physician's entry states "Patient driving an ASV this morning at 0130 and was hit by an IED approximately 30 meters off the left of the road. Patient was in the gunners hatch and took some small shrapnel to the AC, eye protection, and some small pieces in between his eye pro on his brow. His head snapped back, but it did not hit anything. He did not lose consciousness. He is only complaining of tinnitus, and left stuffiness in his ear." On 18 December 2017, the notes were updated to show the applicant sustained some mild injuries of shrapnel to his forehead, some whiplash, but otherwise had a normal examination. He was treated with Naproxen for his neck strain and released without limitations. c. A Statement of Medical Examination and Duty Status, dated 9 March 2009, showing his injuries of tinnitus and aural fullness following exposure to IED blast were found to be in the line of duty. d. Purple Heart Request, dated 30 December 2014, with narrative and witness statements. His local commander, CPT KD, recommended approval; however there are no higher level signatures. The applicant noted that the request for Purple Heart was not submitted in theater because he was not organic to his deployed unit. (1) The award narrative states, "while en route members of [the applicant's] squad came under small arms and RPG attack. The vehicle in front of [the applicant's] vehicle reported seeing a streak of light travel directly in front of the [the applicant's] vehicle's front hood. [The applicant's] driver swerved to avoid the incoming fire." (2) Three witness statements. The first witness, a fellow Soldier, reported hearing radio communication that the lead vehicle in the convoy had been hit and the gunner [applicant] had been hit in the face with fragments. The second witness, the applicant's spouse, reported that she received a phone call on 17 December 2017, informing her that the applicant was involved in an IED accident; however, he was alright having suffered cuts to his face from debris from the explosion. She did not speak to the applicant because he was receiving treatment in the hospital. The third witness, Staff Sergeant BB, stated while on a deliberate convoy logistical patrol the applicant sustained cuts to his forehead and just above his eye protection when an IED hit in front of their truck. At the time of the injury the applicant was the gunner in this vehicle. Once out of harm's way the convoy commander assessed the situation and injuries. His crew went to the aid station and briefed the headquarters command of the IED contact. (3) The applicant's sworn statement described the following events- "while scanning my sectors and traversing the gun turret, I noticed some dry brush in the center median approximately 2 to 5 meters from the south bound roadway of MSR Tampa. In an instant I saw a bright flash followed by a ball of flames and red sparks clustering out towards our vehicle and across the roadway. I also felt the shock wave and almost simultaneously felt the sting of the debris hitting my ESS eye protection, face, and helmet. The explosion was approximately between 20 to 30 meters in front of the vehicle where the debris was located on the side roadway, not only did the concussion of the blast snap my head back but when the driver rapidly swerved to the right to avoid the blast my head snapped backwards again. I instantly could not hear but a ring in my left ear and faintly muffled right ear. When I conducted a self-assessment of my face I noticed a small amount of blood coming from my forehead and I pulled a small hot piece of shrapnel that was stuck just above my eye brows between my eye-pro and my helmet. I was seen at the TMC where they assessed my injuries. And released back to my unit once the assessment and treatment was provided. 4. On 31 March 2015, HRC, denied his request for award of the Purple Heart. The reason cited was insufficient evidence to support a diagnosis and/or treatment of an injury caused by enemy action. 5. On 3 February 2016, the applicant provided a memorandum wherein he contended that his injuries were combat related and he highlighted the following entries in his medical records - * Injury from a terrorist explosion blast * Patient with some mild injuries of shrapnel to his forehead, some whiplash * Follow up if there is any worsening concentration, neck pain, memory problems of the tinnitus, hearing loss doesn’t improve * Injury & Illness: is noted as work related; Onset Date: 17 December 2007, Battle Related: Category: Injuries, Work/Training Cause: Battle Injuries/illness REFERENCES: 1. Army Regulation 600-8-22 states 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. a. A wound is defined as an injury to any part of the body from an outside force or agent sustained by missile, force, explosion, or agent. A physical lesion is not required. 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 award. c. Some examples of enemy-related injuries which justify award of the Purple Heart include injury caused by: * enemy bullet, shrapnel, or other projectile created by enemy action * enemy-placed mine or trap * caused by enemy-released chemical, biological, or nuclear agent * vehicle or aircraft accident resulting from enemy fire d. Examples of injuries or wounds which clearly do not justify award of the PH are as follows: * Hearing loss and tinnitus (for example: ringing in the ears) * Mild traumatic brain injury 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) DISCUSSION: 1. The applicant requests award of the Purple Heart for injuries he received as a result of an IED explosion in Iraq, on 17 December 2007. 2. Regulatory guidance provides for the award of the Purple Heart when injuries are a result of enemy bullet, shrapnel, or other projectile created by enemy action. Based on the eye witness statements and medical records in this case it is reasonable to conclude that the applicant was injured as a result of hostile action. 3. Award of the Purple Heart also requires that the wound must have required treatment by medical personnel. Available records show the applicant sustained minor cuts to his face, whiplash, and tinnitus as a result of debris from an IED explosion. His injuries were evaluated at the time of the incident and he continued the mission without the benefit of any treatment. Upon return to the FOB, his injuries were evaluated again and the attending physician indicated the applicant sustained mild injuries but had an otherwise "normal examination." 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 injuries incurred in action on 7 December 2007 and adding this award to any DD Forms 214 he may have been issued after that date. 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. //NOTHING FOLLOWS// ABCMR Record of Proceedings (cont) AR20160006494 2 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS ABCMR Record of Proceedings (cont) AR20160006494 6 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 2