BOARD DATE: 26 October 2017 DOCKET NUMBER: AR20160017303 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: 26 October 2017 DOCKET NUMBER: AR20160017303 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: 26 October 2017 DOCKET NUMBER: AR20160017303 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. On 26 September 2016, the U.S. Army Human Resources Command (HRC) disapproved his request for award of the Purple Heart for injuries received while engaged in ground combat against an enemy of the United States. He requests a review of the facts and circumstances with regard to the "soft tissue injuries" assumption cited by HRC, overturn of the disapproval by HRC, and issuance of the Purple Heart. b. HRC cited consultation with its Command Surgeon's Office and the conclusion reached was the injuries caused by the improvised explosive device (IED) were classified as "soft tissue injuries" under the provisions of Army Regulation 600-8-22 (Military Awards), paragraph 2-8h(16), and he was ineligible for award of the Purple Heart. This is a gross error resulting in the unjust refusal of an earned entitlement. c. From the attached documentation, it is clear to see his injuries incurred on 22 August 2009 due to enemy action (IED) that were further exacerbated during a follow-on deployment in 2014 qualify for award of the Purple Heart under the provisions of Army Regulation 600-8-22, paragraph 2-8g(2). d. The IED directly injured his spine, resulting in a hemilaminectomy (removal of a vertebral lamina on one side only) with microdiscectomy (removal of lumbar material that is pressing on a nerve) conducted on 29 April 2015 with a 3-day recovery, permanent physical profile rating, and several months of intense physical therapy. This was not a "soft tissue injury." 3. The applicant provides: * HRC denial letter, dated 26 September 2016 * DA Form 4187 (Personnel Action), dated 15 March 2016 * legal review from Command Judge Advocate, U.S. Army Intelligence and Security Command, Fort Belvoir, VA, dated 11 March 2016 * sworn statements * DA Form 3349 (Physical Profile), dated 10 February 2016 * medical records * attending physicians statements * Accident Report/Serious Incident Report, dated 22 August 2009 CONSIDERATION OF EVIDENCE: 1. The applicant is currently serving in the U.S. Army Reserve Active Guard Reserve Program in the rank of major. 2. He was ordered to active duty from the U.S. Army Reserve on 4 January 2009 in support of Operation Enduring Freedom. He served in Afghanistan from 15 April 2009 to 11 April 2010. 3. He provided: a. an Accident Report/Serious Incident Report, dated 22 August 2009, showing his vehicle hit an IED on 22 August 2009; b. a DA Form 2173 (Statement of Medical Examination and Duty Status), dated 13 November 2009, stating he was involved in an IED attack and his vehicle took a direct hit; c. a medical record, dated 17 December 2009, stating he was involved in an IED attack on 22 August 2009 and complained of bilateral shoulder pain, right ankle pain, and lower back pain; and d. a DA Form 2823 (Sworn Statement), dated 18 December 2009, stating an IED struck his vehicle on 21 August 2009. He was in the tank commander seat and the tank commander tire took the blast, destroying his door and trapping him in the vehicle. He thought he broke his ankles and he was in an inordinate amount of pain, to include his shoulders, but he had to drive on. 4. On 14 June 2010, he was honorably released from active duty. 5. His records contain a memorandum for record, dated 23 October 2014, showing he was deployed in support of Operation Enduring Freedom in Afghanistan during the period 8 July 2014 to 5 November 2014. 6. He also provided: a. a DA Form 3349 (Physical Profile), dated 10 February 2016, showing he was issued a permanent physical profile rating for hearing loss and chronic back pain status post-lumbar spine surgery in 2015; b. a self-authored memorandum for the Commander, 335th Signal Command (Theater), dated 8 March 2016, subject: (Applicant) Combat Related Injuries, stating he was deployed to Afghanistan from April 2009 to May 2010 as a team chief for an Embedded Tactical Team assigned to 3rd Kandak, 1st Brigade, and 203rd (Thunder) Corps, located in Khowst Province, Afghanistan. During this deployment, he was engaged by the enemy forces several times. On 22 August 2009, his vehicle was disabled by enemy action. The disabling IED strike to his vehicle caused serious injuries to his lower back, knees, and ankles. Due to his status (Individual Ready Reserve) and because his injuries did not manifest themselves as serious after the deployment, he did not have them treated right away. During his third deployment to Afghanistan in the summer of 2104, his injuries were re-aggravated and required surgery in April 2015; c. a letter from his physician, dated 30 March 2016, stating he underwent lumbar spine surgery on 29 April 2015 and, based on medical records, his symptoms initially started as the result of an IED explosion on 22 August 2009 and were later exacerbated by an injury during his third deployment in Afghanistan in August 2014; and d. a DA Form 4187, dated 15 March 2016, recommending him for award of the Purple Heart for wounds/injuries received in action caused by the enemy on 22 August 2009 in Afghanistan. The form states an IED strike, small arms fire, and indirect fire caused injuries to the applicant's lower back and spine, resulting in a left hemilaminectomy with microdiscectomy. His commanding officer recommended disapproval. The brigade commander recommended approval of the award and commented the applicant suffered a back injury in 2009 due to an IED attack. The damage did not physically manifest itself at that time, but the injury ultimately required corrective lumbar surgery and assignment of a permanent physical profile rating. He believes this situation meets the intent and satisfies the requirements of Army Regulation 600-8-22, paragraphs 2-8e, g, i, and j(2). The Commanding General, 335th Signal Command (Theater), approved the recommendation for award of the Purple Heart. 7. On 26 September 2016, HRC disapproved his request for award of the Purple Heart. After careful consideration and consultation with the HRC Command Surgeon's Office, award of the Purple Heart for this particular event did not meet the statutory guidance in accordance with Army Regulation  600-8-22, paragraph 2-8h(16). The circumstances surrounding the incident and the medical documentation describe the extent of the injury as a soft tissue injury. Although unfortunate, soft tissue injuries do not meet the requirement for award of the Purple Heart. REFERENCES: 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. 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. 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. c. Paragraph 2-8g(2) states an example of an enemy-related injury which clearly justifies award of the Purple Heart is an injury caused by enemy-placed trap or mine. d. Paragraph 2-8h(16) states an example of an injury or wound which clearly does not justify award of the Purple Heart is a soft tissue injury (for example, ligament, tendon or muscle strains, sprains, and so forth). DISCUSSION: 1. The applicant's contention his injuries sustained on 22 August 2009 due to enemy action (IED) qualify for award of the Purple Heart under Army Regulation 600-8-22, paragraph 2-8g(2), was carefully considered. He contends the IED directly injured his spine, which resulted in lumbar spine surgery in April 2015. 2. He provided contemporaneous medical documentation, dated 17 December 2009, stating he complained of bilateral shoulder pain, right ankle pain, and lower back pain, following an IED attack in Afghanistan on 22 August 2009. He underwent a hemilaminectomy with microdiscectomy on 29 April 2015, nearly 6 years after the date of injury. 3. Army Regulation 600-8-22 states an example of an injury or wound which clearly does not justify award of the Purple Heart is a soft tissue injury (for example, ligament, tendon or muscle strains, sprains, and so forth). 4. HRC denied his request for award of the Purple Heart because the circumstances surrounding the incident and the medical documentation describe the extent of the injury as a soft tissue injury and soft tissue injuries do not meet the criteria 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) AR20160017303 2 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 1 ABCMR Record of Proceedings (cont) AR20160017303 5 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 2