ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS IN THE CASE OF: BOARD DATE: 1 April 2019 DOCKET NUMBER: AR20160012054 APPLICANT REQUESTS: award of the Purple Heart. APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: * DD Form 149 (Application for Correction of Military Record under the Provisions of Title 10, U.S. Code, Section 1552) * DD Form 2807-1 (Report of Medical History), dated 9 March 2009 * DD Form 2808 (Report of Medical Examination), dated 9 March 2009 * Orders PK 277-0500, Headquarters, Joint Readiness Training Center and Fort Polk, Fort Polk, dated 4 October 2010 * Memorandum, Headquarters, 2d Cavalry Regiment, Germany, dated 14 October 2013, subject: Authorization to Permanently Release Individual from Theater * Memorandum for Record, Iron Troop 3d Squadron, 2d Cavalry Regiment, Germany, dated 9 April 2014, subject: Missing Casualty Feeder Card from Medical Documents * Standard Form 600 (Chronological Record of Medical Care), dated 17 September 2012 through 18 April 2014 (33 pages) * Memorandum, Headquarters, 2d Cavalry Regiment, Germany, dated 1 December 2014, subject: Purple Heart Recommendation for (Applicant), with attached Memorandum for Record from Colonel X____ X. X____, Ophthalmology, and three sworn statements from Soldiers in the applicant's unit * Patient Movement Request (8 pages) * Neuropsychological Assessment, dated 29 September 2015 * Developmental/Behavioral History, undated * Haag-Streit Diagnostics of Left and Right Eye, dated 30 September 2015 * Three self-authored statements from the Tactical Operations Officer, Speech-Language Pathologist, and Physical Therapist * DA Form 3349 (Physical Profile), dated 30 November 2015 * DD Form 214 (Certificate of Release or Discharge from Active Duty) * Department of Veterans Affairs (VA) Form 21-0960C-8 (Headaches (Including Migraine Headaches) Disability Benefits Questionnaire), dated 2 August 2016 * Memorandum, U.S. Army Human Resources Command (HRC), Fort Knox, dated 12 September 2014, subject: Award of the Purple Heart for (Applicant) * Memorandum, U.S. Army Europe and 7th Army, Germany, dated 15 December 2014, subject: Recommendation for Approval of the Purple Heart for (Applicant) * Memorandum, HRC, Fort Knox, dated 17 November 2015, subject: Award of the Purple Heart for (Applicant) FACTS: 1. The applicant did not file within the 3-year time frame as provided in Title 10, U.S. Code, Section 1552(b); however, the Army Board for Correction of Military Records (ABCMR) conducted a substantive review of this case and determined it is in the interest of justice to excuse the applicant's failure to timely file. 2. The applicant states he believes HRC failed to review all of his medical documents pertaining to his traumatic brain injury (TBI) and the incident in question. 3. His DD Form 2807-1 and DD Form 2808, dated 9 March 2009, show he did not have allergies, was not currently taking medication, and was in good health. He was found medically qualified to join the Army. 4. He was ordered to deploy to Bagram, Afghanistan, on or about 13 October 2010 for a period not to exceed 365 days in support of Operation Enduring Freedom. 5. His regimental commander authorized his permanent release from theater on or about 15 October 2013 due to needing necessary eye surgery. 6. A memorandum for record from the Iron Troop Commander, dated 9 April 2014, stated there was no Casualty Feeder Card for the applicant on file because the casualty rate was extremely high on his company common operational picture due to the high volume of patients and not enough medics. After the incident that took place on 26 July 2011 (dismounted improvised explosive device (IED)), he checked with his patient administrator who stated there were no apparent injuries. The applicant developed diplopia (double vision) and a cranial nerve 6 palsy since that date that required surgery to meet retention criteria. 7. His chronological records of medical care, dated 17 September 2012 through 18 April 2014, show reasons for visits; whether he had allergies; active medications; vital statistics; history of present illness/chief complaint; current medication; and past medical/surgical, personal, and family history. 8. A memorandum for record from the 2d Cavalry Regimental Surgeon, dated 1 December 2014, with supporting documents shows the applicant was serving with the 2d Battalion, 30th Infantry Regiment, 4th Brigade, 10th Mountain Division, in Afghanistan when he was involved in an IED blast during a dismounted patrol. a. The applicant was knocked to the ground and sustained an immediate alteration of consciousness; however, no medical care was rendered at the time because there were no medical providers available and he did not realize the extent of the injury. b. The applicant subsequently developed progressively worsening double vision (diplopia) over a 2-year period and eventually the applicant had to transfer out of the unit to receive corrective eye surgery. c. The applicant was transferred to the Landstuhl Regional Medical Center, Germany, for corrective eye surgery. The attending surgeon stated in his memorandum for record and medical notes that the applicant's injury was most likely the result of the previous IED blast in 2011 and three sworn statements from other members of his unit corroborated they were present the day of the IED blast and the facts as they remembered them. d. This conforms to the definition of "a wound" from a hostile enemy act or terrorist attack and entitles the applicant to award of the Purple Heart in accordance with Army Regulation 600-8-22 (Military Awards), paragraph 2-8e (Purple Heart), dated 11 December 2006, and Military Personnel (MILPER) Message Number 11-125 (Army Directive 2011-07 (Awarding the Purple Heart)), dated 29 April 2011. 9. The Patient Movement Request, dated 19 October 2013, shows the applicant was scheduled for transfer from Afghanistan to Germany for a non-battle injury. The Patient History notes the applicant was exposed to an IED blast injury in 2011 and his vision has been getting worse since then. 10. The Neuropsychological Assessment for 18, 21, and 29 September 2015 shows there was a presence of cognitive difficulties likely secondary to his past history of TBIs. The assessment results indicate ongoing difficulties with sleep disturbance, along with chronic post-traumatic headache and back pain also related to his past TBIs, as well as symptoms of depression and post-traumatic stress disorder. These results indicate a clinical diagnosis of an abducens nerve palsy (a disorder associated with dysfunction of cranial nerve VI, which is responsible for causing contraction of the lateral rectus muscle to abduct the eye). 11. The applicant provided three letters attesting to his medical conditions. a. A letter from the Tactical Operations Officer, 3d Brigade, 1st Armored Division, dated 2 February 2016, states he has known and worked with the applicant since July 2015. The applicant has been suffering from headaches/migraines for as long as he has known him. There were several cases were the applicant had to be sent home from work due to the severity of his migraines. There were quite a few when the applicant was unable to perform the duties of his military occupational specialty due to the severity of the continuing headaches/migraines. b. A letter from the Speech Pathologist, Warrior Care Clinic/TBI Clinic, dated 3 February 2016, states the applicant has been an established patient since October 2015. The applicant's ongoing headaches appear to be a mild barrier to progress. c. A letter from the Physical Therapist, TBI Clinic, undated states she has been treating the applicant for dizziness and balance deficits since 28 September 2015. There were several occasions when his headaches/migraines limited treatment to allow him to go home and ease his pain. 12. He retired on 5 June 2016 by reason of temporary disability (enhanced). 13. His DD Form 214 does not show award of the Purple Heart. 14. Section VII (Functional Impact) of the VA Form 21-0960C-8, dated 2 August 2016, notes that due to constant headaches with breakthrough pain, the applicant is unable to perform heavy physical activity, which inhibits his abilities as an infantryman. When placed on light duty/administrative/clerical duty, the applicant suffers headaches from poor vision due to left sixth cranial nerve palsy and photosensitivity causing increased severity in headaches. 15. On 12 September 2014, the Chief, Policy and Current Operations Awards and Decorations Branch, HRC, requested more documents to support the applicant's case in order to make a determination regarding award of the Purple Heart. 16. On 15 December 2014, the Chief, Force Health Protection, U.S. Army Europe and 7th Army, recommended approval of award of the Purple Heart to the applicant. 17. The Haag-Streit Diagnostics of Left and Right Eye, dated 30 September 2015, shows: a. there was an intractable diplopia of straight ahead gaze status post eye muscle surgery for an acquired left sixth nerve palsy; b. there was a visual field contraction bilateral eyes, which is probably functional (Nonorganic), in other words, not real; c. there has been an excellent result status post pterygium surgery with expected well-healed, negligible conjunctival scarring; and d. there has been a steroid response with elevated intraocular eye pressure from steroid eye drops. 18. On 17 November 2015, HRC disapproved the applicant's request for award of the Purple Heart for injuries received while deployed in support of Operation Enduring Freedom. 19. On 3 January 2018, the Army Review Boards Agency Senior Medical Advisor rendered an advisory opinion relevant to the applicant's request for award of the Purple Heart for TBI wherein he stated: a. The neurology TBI evaluation for anxiety disorder and history of blast exposure on 17 September 2012 shows he was never evaluated by medical. Four rocket/blast exposures and a fall caused alteration of consciousness, dazed, confused, tinnitus, and headaches. Both rocket explosions were within 1 meter away, the IED blast was within 25 meters. The applicant was able to pull himself together and continue fighting. His headache and dizziness lasted for approximately 1.5 days and he never was evaluated by medical. The neurology evaluation states the applicant's fall was during the same deployment when he fell approximately 15 feet off a cliff, landing on his head and chest. The fall resulted in a left knee cartilage damage and recurrence of his left eye abduction problems that he had since he was a child. This 2012 note clearly documents that the applicant's fall down a mountain resulted in recurrence of his left eye abduction problems and not the IED blast on 26 July 2011 as related in later medical encounters 2013 through 2016. It also suggests the applicant's visual deficits were present after his childhood head injury and childhood left eye surgery, and existed prior to service. b. The applicant does not meet the eligibility criteria for award of the Purple Heart per Army Regulation 600-8-22 under the previous awards criteria or the new awards criteria specifically updating Purple Heart requirements. * no documented casualties from the IED incident – the applicant and other Soldiers continued on their mission. * no clear 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 * no medical treatment required or provided after the incident * the applicant's abducens nerve palsy was not secondary to the IED incident on 26 July 2011, but was due to a 10-foot fall in theater c. He recommended denial of applicant's request for award of the Purple Heart. 20. On 11 January 2018, the Army Review Boards Agency Case Management Division forwarded the medical advisory opinion to the applicant for review. He was given 30 days to submit comments in his behalf. He did not respond. BOARD DISCUSSION: After review of the applicant and all evidence, the Board determined there is insufficient evidence to grant relief. The applicant’s contentions, medical concerns, and the medical advisory opinion were carefully considered. Based upon the preponderance of evidence, the Board agreed the concussion as discussed does not meet regulatory criteria entitling him to the Purple Heart. BOARD VOTE: Mbr 1 Mbr 2 Mbr 3 : : : GRANT FULL RELIEF : : : GRANT PARTIAL RELIEF : : : GRANT FORMAL HEARING :X :X :X DENY APPLICATION 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. 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. ADMINISTRATIVE NOTE(S): not applicable. REFERENCES: 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. 2. Army Regulation 600-8-22 (Military Awards) 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 treatment by a medical officer, and the medical treatment must have been made a matter of official record. a. The Purple Heart 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. b. 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 below. A physical lesion is not required. However, the wound for which the award is made must have required treatment, not merely examination, by a medical officer. Additionally, treatment of the wound will be documented in the service member's medical and/or health record. Award of the Purple Heart may be made for wounds treated by a medical professional other than a medical officer provided a medical officer includes a statement in the service member's medical record that the extent of the wounds was such that they would have required treatment by a medical officer if one had been available to treat them. c. The key issue commanders must take into consideration when contemplating an award of this decoration 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 sole justification for award. d. Examples of enemy-related injuries which clearly justify award of the Purple Heart are: * concussion injuries caused as a result of enemy-generated explosions * mild TBI or concussion severe enough to cause either loss of consciousness or restriction from full duty due to persistent signs, symptoms, or clinical finding, or impaired brain function for a period greater than 48 hours from the time of the concussive incident e.  Examples of injuries or wounds which clearly do not justify award of the Purple Heart are: * post-traumatic stress disorder * mild TBI 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 3. MILPER Message Number 11-125, dated 29 April 2011, subject: Army Directive 2011-07 (Awarding of the Purple Heart), provides clarifying guidance for award of the Purple Heart for concussions. a. The following non-exclusive list provides examples of signs, symptoms, or medical conditions documented by a medical officer or medical professional that meet the standard for award of the Purple Heart: (1) diagnosis of concussion or mild traumatic brain injury; (2) any period of loss or a decreased level of consciousness; (3) any loss of memory for events immediately before or after the injury; (4) neurological deficits (weakness, loss of balance, change in vision, praxis (i.e., difficulty with coordinating movements), headaches, nausea, difficulty with understanding or expressing words, sensitivity to light, etc.) that may or may not be transient; and (5) intracranial lesion (positive computerized axial tomography (CAT) or magnetic resonance imaging (MRI) scan. b. The following non-exclusive list provides examples of medical treatment for concussion that meet the standard of treatment necessary for award of the Purple Heart: (1) limitation of duty following the incident (limited duty, quarters, etc.); (2) pain medication such as acetaminophen, aspirin, ibuprofen, etc., to treat the injury, such as headache; (3) referral to neurologist or neuropsychologist to treat the injury; and (4) rehabilitation (such as occupational therapy, physical therapy, etc.) to treat the injury. c. Award of the Purple Heart may be made for wounds (including mild TBIs and concussive injuries) treated by a medical professional other than a medical officer, provided a medical officer includes a statement in the Soldier's medical record that the extent of the wounds was such that they would have required treatment by a medical officer, if one had been available to treat them. //NOTHING FOLLOWS// ABCMR Record of Proceedings (cont) AR20160012054 0 6 1