BOARD DATE: 11 May 2017 DOCKET NUMBER: AR20170000228 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: 11 May 2017 DOCKET NUMBER: AR20170000228 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: 11 May 2017 DOCKET NUMBER: AR20170000228 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 correction of his military records by showing he is authorized award of the Purple Heart. 2. The applicant states he believes his record is in error and unjust for the following reasons: a. The Human Resources Command (HRC) Surgeon determined there was no shift in audiogram and no medical documentation for his traumatic brain injury (TBI). This is incorrect. There is documentation of both of these conditions in the packet to include a Department of Veterans Affairs (VA) disability rating for TBI and symptoms of TBI, such as migraines. b. A lieutenant colonel (LTC) assigned to HRC refused to forward the complete packet from the HRC surgeon. The LTC did not even review any of the six witness statements included in the packet. Only two statements are required per regulation. The statements clearly enumerate TBI symptoms and other injuries. c. The Purple Heart packet was staffed by several commands and ultimately by the 353rd Combat Arms Command (CACOM), where after a complete command and staff review of the entire 74-page packet, the Commanding General approved and signed it. The LTC failed to take this into consideration. 3. The applicant provides copies of: a. TAB A: A DD Form 149 (Application for Correction of Military Record Under the Provisions of Title 10, U.S. Code, Section 1552). b. TAB B: * Memorandum for Request to Correct Record for Disapproval of the Purple Heart (1 page) * Biographical Information for the applicant (2 pages) * Resume of Service Career for the applicant (7 pages) * Applicant’s command photograph (1 page) c. TAB C: * Army Regulation 600-8-22 (Military Awards), dated 25 June 2015 (cover sheet and pages 21-26) * Internet Information Paper, subject: Purple Heart (4 pages) * Memorandum for See Distribution, subject: Army Directive 2011-07 (Awarding of the Purple Heart) (10 pages) d. TAB D: * DA Form 4187 (Personnel Action), Request for Award, dated 12 March 2013 * DA Form 4187 Purple Heart Requests, dated 5 October 2013 e. TAB E: * DD Form 214 (Certificate of Release or Discharge from Active Duty (Service Copy Number 8 (Mostly illegible), ending 16 April 2004 * DD Form 214 (Service Copy 2) ending 16 April 2004 * DD Form 214 (Service Copy 2) ending 21 March 2014 (2 pages) f. TAB F: Orders 014-08, Fort Bragg, North Carolina, dated 14 January 2003 g. TAB G: * Statement by the applicant, dated 11 March 2013 concerning an improvised explosive device explosion (2 pages) * DA Form 2823 (Sworn Statement) dated 28 March 2013 (2 pages) h. TAB H: * Service Medical Records (12 pages) * Individualized Rehabilitation/Reintegration Plan of Care, dated 9 June 2014 (2 pages) * Information Sheet for Traumatic Brain Injury Definition and Symptoms, date stamped 19 June 2014 (3 pages) * Department of Veterans Affairs Rating Decision, dated 22 May 2014 (Pages 1-4, 6,8,10-11 only) * VA Compensation Decision dated 27 May 2014 (2 pages) * VA Decision for Claim Benefits, dated 3 July 2014 (1 page) * Imaging Room Appointment/Results of Examination, dated 28 March 2016 (2 pages) I. TAB I: * Non-Hearing Conservation Hearing Test, dated 23 January 2003 (2 pages) * Audiogram (Hearing Test) Statement dated 26 June 2013 (1 page) j. TAB J: * Automated Record Brief, dated 16 January 2016 * DA Form 4037-E (Officer Record Brief) undated * DA Form 2-1 (Personnel Qualification Record) last reviewed on 13 July 2013 k. TAB K: * Sworn Statement by a colonel, retired dated in 18 April 2013 (8 pages) * Sworn Statement by a specialist, retired, dated 1 June 2013 (1 page) * Sworn Statement by a first sergeant, dated 6 May 2013 (1 page) * Sworn Statement by a sergeant first class, dated 29 March 2013 (1 page) * Statement by an individual identified by name only, undated and unsigned * Sworn Statement by a staff sergeant, signed, undated l. TAB L: * Memorandum from the applicant for the Commander, HRC, subject: Justification Regarding Missing Documents for Purple Heart Award Packet, U.S. Africa Command, dated 20 August 2013 (2 pages) * Memorandum from HRC to Commander, 353rd Civil Affairs Command, subject: Award of the Purple Heart for the applicant, dated 16 January 2014 * Memorandum from the applicant to HRC, subject: Rebuttal Response to Disapproval of Purple Heart, dated in June 2014 (6 pages) * Memorandum from the applicant to the Awards and Decorations Branch, Policy Section, subject: The applicant’s Purple Heart Medal Request Case, dated in July 2014 (2 pages) * Memorandum from the Chief, Awards and Decorations Branch, HRC to the applicant’s Commander, subject: Award of the Purple Heart, dated 23 July 2014 m. TAB M: * Email communication between a major general and the applicant, subject: Purple Heart, dated 8 October 2013 * Email communications between the applicant and HRC Awards personnel, dated from 14 February to19 June 2014 (10 pages) * Email from the applicant to a first lieutenant and master sergeant requesting assistance with his Purple Heart request, dated 15 November 2015 (2 pages) n. TAB N: Memorandum for Record, subject: Legal Review of Application for Correction of Military Record Regarding Purple Heart Medal for the applicant, dated 19 November 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. At the time of his application, the applicant was serving on active duty as a colonel, pay grade O-6. 3. Orders 014-08, Special Operations Command, Fort Bragg, North Carolina, dated 14 January 2003, announced the applicant’s order to active duty as a member of the US Army Reserve for a period not to exceed 365 days. His report date was 15 January 2003. The purpose was in support of Operation Enduring Freedom. 4. A DD Form 214, as provided by the applicant, for the period from 15 January 2003 through 16 April 2004, indicates that he served in Kuwait and Iraq during the period 21 February 2003 to 21 February 2004. The form does not list the Purple Heart among the awards shown on the form. 5. In a DA Form 2823, dated 11 March 2013, the applicant provided a sworn statement summarizing the events of 25-27 October 2003, concerning the results of a hostile explosion of an IED in Karbala, Iraq. He stated: a. On 25 October 2003, he was a vehicle radio operator/gunner in a two-vehicle convoy enroute from Camp Victory, Iraq to the Coalition Provincial Authority sub-office located in Karbala, Iraq. The vehicles were light skinned with no doors or armor. Approximately 26 miles north of Karbala, their two-vehicle convoy was targeted and directly hit by an IED located on the left shoulder of the highway. Their two vehicles were traveling in the left lane due to slower civilian traffic in the right lanes. The IED exploded between the two vehicles immediately sending shrapnel, debris, gravel/sand, and smoke into both vehicles hitting all nine occupants. b. All four persons in the front vehicle were wounded by the IED blast and received the Purple Heart. The five persons in the second vehicle did not receive the Purple Heart. They were all sitting within a meter of each other at the time of the explosion. All of the persons in the front vehicle and those individuals in the second vehicle were about six meters apart when the IED exploded between them. The individuals who were in the second vehicle now believe they also were entitled to receive the Purple Heart for their injuries based on the revision of the governing regulation effective 18 March 2011 for award of the Purple Heart. Both vehicles were damaged by the explosion resulting in them being used for spare parts. c. Immediately after the blast, and upon consolidation of the vehicles in a safer area about one mile down the road from the site of the explosion, their military registered nurse and combat lifesaver began treating all nine Soldiers who showed signs of concussions, including blurry vision, confusion, disequilibrium, disorientation, dizziness, immediate headaches, nausea, problems with balance and ringing in their ears. None of them were able to accurately describe the immediate events of the IED explosion. They could not recall which vehicle went where, who called who on the radio and if someone did call, what they saw, etc., immediately during the blast. Most of them described the explosion as a blur due to an immediate loss of memory. d. Upon completion of first aid treatment for the nine personnel, they immediately drove to X-Ray, the closest military facility. It had a Polish hospital facility named Juliet. All of the personnel were seen by Polish doctors and nurses. Treatment was documented; however, no documentation was ever forwarded to their brigade as was promised. While at Juliet, the applicant was examined, given ibuprofen and observed for a while. After their release from Juliet, they began the convoy return to Camp Victory, Baghdad, Iraq. e. While in their brigade operations/billeting area, the applicant continued to have problems with his balance and vision. He was seen by the brigade head nurse, a military captain, who provided him with more ibuprofen. f. On Sunday, 26 October 2003, at Camp Victory, all personnel involved in the IED incident were processed by the Brigade G1 (Personnel Officer) and given sick slips for immediate reporting to the aid station. The applicant received treatment by another doctor for signs of a concussion. His medical record was signed by a physician stating, “Ringing in ears from IED explosion yesterday, sounds like water, feels dizzy, loss of hearing to IED explosion, ears ringing, hearing eval.” g. On 27 October 2003, several of the personnel still felt the results of the concussion and returned for further medical assistance. He received a packet of ibuprofen 400mg tablets to take three or four times a day as needed for pain. h. Upon redeployment from Iraq to Fort Bragg, North Carolina, the applicant received a hearing test on 2 March 2004. The results, when compared to a similar test performed at the same facility on 23 January 2003, showed all audiometric data with higher decibel numbers indicating his hearing had worsened. i. The applicant, in conclusion, stated that as his career has continued, and he has had additional medical issues related to the IED explosion. These issues include ringing in his ears after nearby explosions, back pain, blurry vision, bleeding of his ears, etc. 6. A DA Form 4187, as provided by the applicant, dated 12 March 2013, indicates that the applicant requested award of the Purple Heart. It also indicates that he enclosed his DD Form 214, deployment orders, a one-page narrative, a chronological record of medical care, an audiogram, a DA Form 2-1 and two or more eyewitness statements. Section V (Certification/Approval/Disapproval) of the form is blank. 7. A memorandum addressed to the Awards Branch, HRC, from the applicant, dated 20 August 2013, concerned justification regarding missing documents in his Purple Heart award packet. a. He states that on 25 October 2003, eight Soldiers, including himself and one American/Iraqi translator, were wounded by an IED explosion near Karbala, Iraq. They were a part of an Army Reserve Civil Affairs Brigade for Operation Iraqi Freedom 01 that was attached/assigned all over Iraq and consisted of Soldiers from seven other units. Because the IED incident occurred 10 years earlier, it was very difficult to find the Soldiers who were involved in this attack and to obtain witness statements from them. It took over a year to find these witnesses and to request them to write sworn statements. b. The applicant identified five Soldiers who wrote witness statements, of which only one was still in the U.S. Army Reserve. He requested that, if possible, the statements were to be made on a DA Form 2803, but because of their status at the time, it was impossible for them to utilize the form. The applicant felt fortunate to have received the witness statements on a Word document considering the circumstances of time, retirement, discharge and their bad experiences from the incident. c. The applicant acknowledged the requirements of Army Directive 2011-07 for awarding the Purple Heart. He stated that he had provided the following documents for recommendation of the Purple Heart: * DA Form 4187 * DD Form 214 * Deployment orders * one-page narrative * SF 600 (Chronological Record of Medical Care) referencing the date of his injury * Audiogram for both his previous and post hearing tests * Two or more eyewitness statements, not counting his own statement d. The applicant also stated that he had been mobilized four times since the IED incident and was serving at the time of the memorandum with the 353rd Civil Affairs Command. His mobilizations had been processed through different locations to include Fort Bragg, Fort Benning, and Fort Dix. All of his administrative and medical records were sent back and forth between units and mobilization locations resulting in lost, recreated and discarded portions of his records numerous times. He felt fortunate to have the records that he does after all of these locations, events, and years. e. The applicant requested reconsideration for submission of his Purple Heart packet with all of the existing documentation. 8. A DA Form 4187, as provided by the applicant, dated 5 October 2013, indicates that the applicant requested award of the Purple Heart for wounds/injuries received in Karbala, Iraq, on 25 October 2003 as a result of an enemy improvised explosive device explosion. Section V (Certification/Approval/ Disapproval) of the form indicates that a commanding brigadier general signed the form recommending its approval, dated 7 October 2013. 9. A DD Form 214, as provided by the applicant, for the period 7 February 2013 to 21 March 2014, indicates that he served in Djibouti, a designated imminent danger pay area from 28 March 2013 to 2 January 2014. The form also lists the Combat Action Badge. There is no Purple Heart listed on the form. 10. A Memorandum from the Chief, Plans and Operations, Awards and Decorations Branch, HRC, dated 16 January 2014, to the applicant’s commander, states that after a careful review of all medical documentation, and after consultation between the HRC Surgeon and an audiologist, it was determined that the changes in the applicant’s hearing were minimal and consistent with normal hearing. In accordance with Army directive 2011-07, dated 29 April 2011, given the medical status provided, the applicant did not meet the regulatory criteria for award of the Purple Heart. 11. In an email dated 30 March 2014, from a lieutenant colonel (LTC) to the applicant concerning the disapproval of the Purple Heart, he was informed of the following: a. The LTC had a chance to review the applicant’s records again and tried to call the applicant to discuss the results of this review. The LTC noted that the applicant had deployed in 2003, 2008, and 2010. His post-deployment medical assessments of 2008 and 2010 were negative for TBI. b. The applicant’s electronic medical record shows his first visit was in 2007. There are no recorded visits from 2007 until December 2013. The first mention in the electronic record of the IED exposure was in in December 2013. In January 2014, TBI evaluation started. He underwent a TBI workup in February 2014. c. The LTC explains his reasons for denial with the following comments: * He believed the 2013 request for the retroactive award of the Purple Heart was for a hearing deficit * He reviewed the applicant’s complete medical record in December 2013 and found no mention of the TBI, otherwise he would have amended his narrative * There are two criteria for the retroactive Purple Heart: Documentation of trauma and severity of injury/wound * He believed the applicant was exposed to a blast but has no idea of the resulting severity of the exposure. * He found no documentation of a TBI trauma in 2003 12. A VA Rating Decision, dated 22 May 2014, as provided by the applicant, shows that the VA granted him service connection for a TBI resulting from an IED blast, rated at 10 percent disabling, effective 22 March 2014. 13. In a six-page memorandum, dated in June 2014 (exact day is unreadable), the applicant provides his rebuttal comments to the email discussed above in paragraph 11 concerning the disapproval of his Purple Heart request. a. In response to the paragraph concerning the availability of only electronic medical records, he argued that paper copies of medical documents dated in 2003 and 2005 contain statements of symptoms of TBI, including “symptoms of concussion, period of unconsciousness, hearing loss, concussion, ringing in ears, bleeding ears, blurry vision.” He disagreed with the LTC’s comment that were no medical visits related to symptoms suggesting TBI from 2007 to 2013. He accepts that the electronic record does not show a record of the IED exposure and does not understand why or how it was omitted. He states the paper-based post deployment health risk assessments (PDHRAs) screenings conducted over the phone are very limited and lack the detail of what he described to the person completing the form. The applicant acknowledged that his TBI evaluation was started in January 2014 and that he underwent TBI workup in February 2014. b. In response to the paragraph concerning the reasons for denial, he argued the following points: * The reason for his request of the Purple Heart was concussions, neurological deficits and hearing loss * Army Regulation 600-8-22 does not make any mention of either the severity or documentation of trauma as a requirement for award of the Purple Heart * He included seven witness statements as proof of his exposure to the blast and his proximity to that blast as being “danger close” 14. In a Memorandum for the Awards and Decorations Branch, Policy Section, dated in July 2014 (date partially illegible) the applicant offers additional information and documentation to support his request for the Purple Heart. a. He began to gather all the required and additional information in early 2012 and went through a detailed awards board review; after which, the packet was forwarded through his chain of command to HRC. b. After each of his deployments from 2003 through 2014, he mentioned to the medical personnel that he had ongoing concerns, issues and symptoms of a concussion and other TBI related symptoms from the original IED incident of 2003. c. It was not until after his last deployment, that a civilian doctor at Fort Dix actually noted his IED/TBI concussion concerns and symptoms. This doctor coordinated a detailed TBI care plan. It is unfortunate that no one took a genuine and sincere interest in his concerns from the 2003 IED explosion and concussion until after he had completed his 2014 deployment. d. As of the date of this memorandum, he has been put in a TBI clinic and has had TBI appointments with internal medicine, psychologist, speech therapist, eye doctor, psychiatrist, audiologist, speech pathologist, physical therapist, social worker, etc, all part of his TBI work-up. Even though his TBI treatment plan is still ongoing, the VA has provided him a 40 percent disability rating for the IED blast and migraines. e. He requested another review of his entire Purple Heart packet. 15. In a Memorandum from the Chief, Awards and Decorations Branch, HRC, dated 23 July 2014, the applicant’s commander was informed of the following: a. The applicant’s request for the Purple Heart was disapproved. b. After a careful review of all medical documentation, the HRC Surgeon, in consultation with an audiologist, determined that there was no shift from the pre-deployment audiogram to the post-deployment audiogram. Changes are minimal and consistent with normal hearing. Furthermore, there is no medical documentation for a concussion or TBI. In accordance with Army Directive 2011-07 dated 29 April 2011, given the medical status provided, the applicant does not meet the regulatory criteria for award of the Purple Heart. c. If the applicant believes this determination to be unjust, he has the right to appeal to the Army Board for Correction of Military Records (ABCMR), the highest appellate authority on personnel matters. 16. In an email, dated 15 November 2015, from the applicant to the 451st Sustainment Command (Expeditionary), he requested advice concerning what process he could follow to resubmit his entire Purple Heart packet. He stated that the packet was reviewed, forwarded through his overseas command and stateside command, where it went through a lengthy board process and was ultimately approved by the commanding general. He further stated that a conversation with a physician at HRC revealed that they only looked at the actual medical documentation and then determined whether to forward the packet to the awards branch. His complaint in this incident occurred in 2003 before the new Purple Heart regulation was published. He argued that if his entire packet was reviewed he would meet the new Purple Heart requirements. 17. In a Memorandum for Record, dated 19 November 2016, the Staff Judge Advocate, 451st Sustainment Command (Expeditionary) found the applicant’s application for the Purple Heart to be legally sufficient and recommended that he be awarded the medal. REFERENCES: 1. 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. a. Substantiating evidence must 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 documented in the individual’s medical and/or health records. b. While clearly an individual decoration, 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. c. A wound is defined as an injury to any part of the body from an outside force or agent sustained as a result of enemy action. 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. d. Examples of enemy-related injuries which clearly justify award of the Purple Heart include 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. An example of an injury or wound which clearly does not justify award of the Purple Heart is a mild TBI or concussion that did not either result in a loss of consciousness or restriction from full duty for a period of 48 hours due to persistent signs, symptoms, or physical finding of impaired brain function. f. A strict interpretation of the requirement for a wound or injury to be caused by direct result of hostile action is not intended to preclude an award of the Purple Heart to deserving personnel. Commanders are required to take into consideration the circumstances surrounding an injury, even if it appears to meet the award criteria. 2. Military Personnel (MILPER) Message Number 11-125, issued by HRC, dated 29 April 2011, states the Secretary of the Army approved Army Directive 2011-07 (Awarding of the Purple Heart). The directive provides clarifying guidance to ensure the uniform application of advancements in medical knowledge and treatment protocols when considering recommendations for award of the Purple Heart for concussions (including mild traumatic brain and concussive injuries that do not result in a loss of consciousness). This message does not change the standards for award of the Purple Heart for concussion injuries. This policy is retroactive to 11 September 2001. DISCUSSION: 1. The applicant contends that his military records should be corrected by showing he is entitled to award of the Purple Heart as a result of sustaining concussions, neurological deficits and hearing loss. 2. There is no dispute concerning whether the applicant was in a vehicle when it came into the proximity of an IED explosion. However, there is no evidence showing that the applicant ever lost consciousness or was restricted from full duty for a period of 48 hours or more from the time of the IED incident due to persistent signs, symptoms, or a physical finding of impaired brain function resulting from a mild TBI. Accordingly, his resulting medical condition never rose to the level of disability required by regulation for award of the Purple Heart. 3. The fact that the applicant developed medical conditions at a later date that may or may not have resulted from the IED incident does not make the applicant now eligible 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) AR20170000228 2 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 1 ABCMR Record of Proceedings (cont) AR20170000228 13 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 2