ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

RECORD OF PROCEEDINGS


	IN THE CASE OF:  

	BOARD DATE:  20 August 2019

	DOCKET NUMBER:  AR20160018534


APPLICANT REQUESTS:  award of the Purple Heart. 

APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: 

* DD Form 149 (Application for Correction of Military Record) dated 21 September 2016
* Army Commendation Medal (ARCOM) Certificate dated 30 December 2003
* ARCOM recommendation dated 30 December 2003
* Witness Statements
* Casualty Feeder Cards
* Hearing Test dated 2 January 2004
* Enlisted Record Brief
* DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge) for the period ending 7 August 2005
* Combat Action Badge dated 7 December 2006
* Human Resource Center Memorandums

FACTS:

1.  The applicant states on 30 December 2003 while in Baghdad, Iraq, his high mobility multi-purpose wheeled vehicle (HMMWV) was directly hit by an improvised explosive device (IED).  He states he was knocked unconscious for a brief period.  He states he was sent to the Combat Support Hospital (CSH) and was diagnosed with a concussion; however he is missing the paperwork.  He states the lack of medical records has caused the Army to deny his request. He states his Track Commander, X, was able to receive a Purple Heart by providing the after-the-fact record.   

2.  He provides an ARCOM Certificate showing he received the award for and incident on 30 December 2003.  The citation states:  “For meritorious service during Operation Iraqi Freedom.  [Applicant’s] actions during an [IED] detonation, in which he was badly wounded…” 

3.  He provides the recommendation for the ARCOM for 30 December 2003, which states in Achievement #2, “[Applicant] quickly reacted to the Iraqi National who needed his medical attention the most.  Although [Applicant] would later be diagnosed with a severe concussion, [he] quickly directed people to remove the injured Iraqi from the scene and to evacuate his truck.”

4.  The casualty feeder cards dated 6 April 2005 state that while driving through Baghdad, one truck was struck with an IED, throwing the applicant from his seat.  He later couldn’t hear and was evacuated to the Brigade Surgeon, then later to the 28th Combat Support Hospital.  The applicant’s feeder card states on 30 December 2003 while driving through Baghdad, they were struck by an IED, and he was thrown from his seat and became disoriented.  They were evacuated to the Brigade Surgeon then later to the 28th Combat Support Hospital.

5.  On 2 January 2004 applicant received follow up hearing test.  The physician notes state, “male reports IED blast in December 2003 and difficulty hearing.”

6.  Captain X states upon arrival back to the 2nd Brigade Combat Team’s headquarters, all members of the convoy were given examinations by the Brigade Surgeon, then most of them were taken to the 28th CSH.  The blast was within two meters or less of the convoy.  The battalion later found out that the explosion was a 122 mm mortar round. The vehicle windshields were shattered, and there was shrapnel damage to the body of the vehicle and blown out tires. Due to the Soldiers’ close proximity and the magnitude of the explosion, all suffered concussions, and two Iraqis were killed.

7. Staff Sergeant C states the applicant was his driver on 30 December 2003 when their vehicle was hit by an IED.  The explosion occurred on the applicant’s side of the vehicle, and he took most of the blast. Staff Sergeant C states he received the Purple Heart on 12 September 2012 for wounds he incurred on 30 December 2003.  He stated he and the applicant received the same injuries and should have the same award.   Staff Sergeant C provides an excerpt of his medical record, dated 1 December 2004, on which the Brigade Surgeon states Staff Sergeant C was seen by him on 3 (may be 30) December 2003 in Baghdad, Iraq.  About 11 other 40th Engineer Battalion Soldiers were seen, status post IED. 

8.  The applicant’s Enlisted Record Brief states the applicant was assigned to the 40th Engineer Battalion from 1 March 2002 to 7 August 2005, the date he was honorable released from active duty upon completion of his required active service.

9.  Lieutenant Colonel X states at the time of the incident he was the Battalion Commander for the 40th Engineer Battalion, 1st Armored Division.  He states the applicant was in the convoy at the time of the IED detonation.  It was explained to him that all Soldiers in the convoy received a concussion. 

10.  On 7 December 2006, the Human Resources Command (HRC) approved award of the Combat Action Badge.  The approval was based on documentation provided by applicant for his service during Operation Iraqi Freedom.
11. On 24 October 2012 Human Resource Center (HRC) responded to the applicant stating, additional documentation was needed in support of his request for award of the Purple Heart.  HRC requested medical documentation describing both diagnosis and treatment of injuries caused by the enemy and audiograms from before and after deployment.

12.  On 4 August 2016, HRC responded to a Member of Congress stating they were unable to authorize an award of the Purple Heart at this time.  They had yet to receive military medical documentation from immediately after, or close to, an incident during which the applicant was wounded by enemy action.

13.  Army Regulation 600-8-22 (Military Awards) 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 that 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.  Award of the Purple Heart is announced in orders.

BOARD DISCUSSION:

Per the regulatory guidance on awarding the Purple Heart, the applicant must provide or have in his service records substantiating evidence to verify that he was injured, 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. After reviewing the application and all supporting documents, the Board found insufficient medical evidence to meet the regulatory standard for the Purple Heart and thus recommended denying the request.
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.


REFERENCES:

1.  Title 10, USC, section 1552(b), provides that applications for correction of military records must be filed within three 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 three-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) 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 that 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 following nonexclusive 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 PH:  

* Diagnosis of concussion or mild traumatic brain injury
* Any period of loss or a decreased level of consciousness
* Any loss of memory for events immediately before or after the injury
* Neurological deficits (weakness, loss of balance, change in vision, praxis (that is, difficulty with coordinating movements), headaches, nausea, difficulty with understanding or expressing words, sensitivity to light, and so forth) that may or may not be transient. Intracranial lesion (positive computerized axial tomography or magnetic resonance imaging scan)

     b.  The following nonexclusive list provides examples of medical treatment for concussion that do meet the standard of treatment necessary for award of the PH:  
* Referral to neurologist or neuropsychologist to treat the injury
* Rehabilitation (such as occupational therapy, physical therapy, and so forth) to treat injury
* Restriction from full duty for a period of greater than 48 hours due to persistent signs, symptoms, or physical finding of impaired brain function

Combat theater and unit command policies mandating rest periods or “down time” following incidents do not constitute qualifying treatment for concussion injuries. To qualify as medical treatment, this rest period must have been directed by a medical officer or medical professional for the individual after diagnosis of an injury.

     c.  The following nonexclusive list provides examples of medical treatment for concussion that do not meet the standard of treatment necessary for award of the PH:
* Limitation of duty following the incident (for example, limited duty, quarters, and so forth)
* Pain medication (such as acetaminophen, aspirin, ibuprofen, and so forth) to treat injury, such as headache



ABCMR Record of Proceedings (cont)	 AR20160018534


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