BOARD DATE: 6 June 2018 DOCKET NUMBER: AR20160014519 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 June 2018 DOCKET NUMBER: AR20160014519 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 June 2018 DOCKET NUMBER: AR20160014519 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 due to a traumatic brain injury (TBI) sustained during deployment to Iraq in 2004-2005. 2. The applicant states new regulations acknowledge a TBI resulting from enemy action is an injury eligible for award of the Purple Heart. 3. The applicant provides: * self-authored statement, dated 15 April 2016 * memorandum, 1835th Medical Detachment (Combat Stress Control), Forward Operating Base Speicher, dated 18 October 2004, subject: (Applicant) * Narrative Recommendation for Award of the Bronze Star Medal, dated 27 June 2005 * Bronze Star Medal Certificate * Headquarters, 94th Regional Readiness Command, 11 Saratoga Boulevard, Devens, MA, Permanent Orders 159-35, dated 8 June 2006 * DD Form 214 (Certificate of Release or Discharge from Active Duty) for the period ending 2 October 2006 * DD Form 214 for the period ending 11 February 2008 * Department of Veterans Affairs (VA) Rating Decision, dated 14 July 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 U.S. Army Reserve on 9 February 2003. 3. Her DA Form 2-1 (Personnel Qualification Record – Part II) shows she served in Iraq from 16 February 2004 through 28 February 2005. 4. She submitted a memorandum from the 1835th Medical Detachment (Combat Stress Control), Forward Operating Base Speicher, dated 18 October 2004, subject: (Applicant), stating she was evaluated following referral from the Combat Support Hospital and recommended for enrollment in a 3-day/3-night Combat Stress Control Program. 5. Her complete medical records are not available for review. 6. She was honorably released from active duty on 2 October 2006. 7. On 28 January 2010, the Army Board for Correction of Military Records denied her request for medical retirement based on post-traumatic stress disorder (PTSD) (Docket Number AR20090014447). The ABCMR determined there was insufficient evidence in the applicant's records to show she had a medical condition(s), illness(e)s, or injury(ies) that was diagnosed during a medical examination, was determined not to have met the medical retention standards of Army Regulation 40-501 (Standards of Medical Fitness), and warranted her entry into the Army Physical Disability Evaluation System. She submitted no medical evidence indicating she sustained a TBI at that time. 8. She provided a self-authored statement, dated 15 April 2016, wherein she stated: a. She completed convoys with her unit during her tour in Iraq as a motor transport operator (military occupational specialty 88M2O) and was responsible for delivering troops and supplies. b. While on a convoy, a rocket-propelled grenade was fired at the vehicle she was driving and exploded next to her driver's door. She was stunned and saw the gunner shooting in slow motion, but heard no sound. She was unaware how long she was stunned; she could not communicate during this time period. Her head was hurting and she was confused. c. She did not seek medical care but continued with missions. She was a combat lifesaver and was never trained about TBI. She did not tell the chain of command because the other unit handled the report. d. Two weeks later while on another convoy, she attempted to save the life of a local national who was run over by a tank. She received the Bronze Star Medal and Combat Action Badge for these actions. e. In 2008, she completed a TBI screening at the Newington VA Medical Center. She was not aware she had sustained a TBI and was not advised to get further treatment. In 2015, she returned to the VA Medical Center because she developed a stutter and noticed in conversations she would draw blanks with words. Her primary care doctor informed her she had sustained a TBI and requested a new neurological screening. 9. She submitted her VA Rating Decision, dated 14 July 2016, showing service connection for TBI was granted with an assigned disability rating of 0 percent effective 12 April 2016. REFERENCES: Army Regulation 600-8-22 (Military Awards) provides that the Purple Heart is an entitlement and differs from all other awards. 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, not merely examination, by a medical officer, and the medical treatment must have been 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. 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. a.  Examples of enemy-related injuries which clearly justify award of the Purple Heart are as follows: * injury caused by enemy bullet, shrapnel, or other projectile created by enemy action * injury caused by enemy-placed trap or mine * injury caused by enemy-released chemical, biological, or nuclear agent * injury caused by vehicle or aircraft accident resulting from enemy fire * 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 b.  Examples of injuries or wounds which clearly do not justify award of the Purple Heart are as follows: * frostbite (excluding severe frostbite requiring hospitalization from 7 December 1941 to 22 August 1951) * trench foot or immersion foot * 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 * PTSD * airborne (for example, parachute/jump) injuries not caused by enemy action * hearing loss and tinnitus (for example, ringing in the ears) * 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 * abrasions and lacerations (unless of a severity to be incapacitating) * bruises (unless caused by direct impact of the enemy weapon and severe enough to require treatment by a medical officer) * soft tissue injuries (for example, ligament, tendon, or muscle strains, sprains, and so forth) * first degree burns DISCUSSION: 1. The applicant requests award for the Purple Heart due to a TBI she sustained in Iraq. 2. She stated a rocket-propelled grenade exploded by the driver's door of the vehicle she was driving. She contends she was stunned, confused, and could not communicate, but saw the gunner continue to fire his weapon. By her own admission she did not seek medical care or report it to her command, but continued with her mission delivering troops and supplies in convoys. 3. 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, not merely examination, by a medical officer, and the medical treatment must have been documented in the service member's medical and/or health record. 4. Army Regulation 600-8-22 provides that mild TBIs 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 clearly do not justify 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) AR20160014519 2 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 1 ABCMR Record of Proceedings (cont) AR20160014519 2 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 2