IN THE CASE OF: BOARD DATE: 20 November 2018 DOCKET NUMBER: AR20170003645 BOARD VOTE: Mbr 1 Mbr 2 Mbr 3 :x :x :x GRANT FULL RELIEF : : : GRANT PARTIAL RELIEF : : : GRANT FORMAL HEARING : : : DENY APPLICATION 2 Enclosures 1. Board Determination/Recommendation 2. Evidence and Consideration IN THE CASE OF: BOARD DATE: 20 November 2018 DOCKET NUMBER: AR20170003645 APPLICANT'S REQUEST AND STATEMENT: 1. The applicant requests award of the Purple Heart. 2. The applicant states she is providing a statement from the medic who treated her and two other Soldiers. THE BOARD CONSIDERED THE FOLLOWING EVIDENCE: 1. Application for correction of military records with supporting documents: * DA Form 4187 (Personnel Action) * Recommendation for Combat Action Badge memorandum * DA Form 4167 (Personnel Action Form Addendum) * Permanent Order (PO) Number 292-052 * DD Form 214 (Certificate of Release or Discharge from Active Duty) * DA Form 2823 (Sworn Statement) * Department of Veterans Affairs (VA) letter * VA Traumatic Brain Injury (TBI) Second Level Evaluation * VA Problem List * statement from medic * VA Form 21-4138 (Statement in Support of Claim) 2. Evidence from the applicant’s service record and Department of the Army and Department of Defense records and systems: * DA Form 2-1 (Personnel Qualification Record – Part II) * DD Form 214 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 (AR) 600-8-22 (Military Awards) prescribes Army policy, criteria, and administrative instructions concerning individual and unit military awards. The regulation states: a. 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. 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 above. 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. Examples of enemy-related injuries that clearly justify award of the Purple Heart include concussion injuries caused as a result of enemy-generated explosions resulting in a mild traumatic brain injury (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. d. Examples of injuries or wounds that clearly do not justify award of the Purple Heart include post-traumatic stress disorders, hearing loss and tinnitus, 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. Also soft tissue injuries (for example, ligament, tendon or muscle strains, sprains, and so forth). 2. Army Directive 2011-07 (Awarding the Purple Heart), dated 18 March 2011, 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 TBI and concussive injuries that do not result in a loss of consciousness). The directive also revised AR 600-8-22 to reflect the clarifying guidance. a. Combat theater and unit command policies mandating rest periods or downtime following incidents do not constitute qualifying treatment for concussion injuries. b. To qualify as medical treatment, a medical officer or medical professional must have directed the rest period for the individual after diagnosis of an injury. 3. The MACE is a standardized mental status examination that is used to evaluate mild TBI, or concussion, in theater. This screening tool was developed to evaluate a person with a suspected concussion and is used to identify symptoms of a mild TBI. Future MACE scores can be used to determine if the patient’s cognitive function has improved or worsened over time. To be most effective, all service members experiencing concussion, or mild TBI, should have the MACE administered within the first 24 hours of the event in order to make certain that proper care is administered in a timely fashion. The MACE, in combination with a medical exam, can be used to help determine if it is safe for a service member to return to duty. DISCUSSION: 1. While 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 Kansas Army National Guard (KSARNG) on 28 July 2007 and she held military occupational specialty 88M (Motor Transport Operator). 3. She entered active duty on 20 October 2010 in support of Operation Enduring Freedom (OEF). She served in Kuwait/Iraq from 22 November 2010 to 17 October 2011. 4. She provides copies of the following: a. A DA Form 4187, dated 18 August 2011, which requested award of the Combat Action Badge for the applicant. The form stated the heavy equipment transporter (HET) she was riding in was hit by an improvised explosive device (IED) on 11 July 2011. The HET sustained damage to the fuel tank, transfer cases, air lines, antenna, and frame. b. A Recommendation for Combat Action Badge memorandum, dated 23 August 2011, which recommended approval of this award for the applicant and another Soldier. c. A DA Form 4187, dated 8 September 2011, which recommended approval of the award. d. PO Number 292-052, dated 19 October 2011, which awarded her the Combat Action Badge for actively engaging or being engaged by the enemy on 18 July 2011. 5. She was honorably released from active duty on 12 November 2011. Her DD Form 214 shows she completed 1 year and 23 days of active service, which included 10 months and 26 days of foreign service. Her DD Form 214 does not show the Purple Heart. 6. She also provides the following: a. A DA Form 2823, dated 21 December 2016, wherein she stated: (1) She was deployed to Kuwait/Iraq with the 778th Combat HET Company out of the KSARNG, from October 2010 to November 2011. During her deployment, her vehicle was hit by an IED. She and three other Soldiers were in the vehicle. All of them were recommended for award of the Purple Heart; however, the packets were signed in the wrong block and as a result were kicked back by their battalion. They were separated and no one knows what happened to the packets. (2) Upon returned to her unit, she inquired about the award and was unable to learn any information. It has been over 3 years since the incident and no one seems to know who to follow up with. (3) At the time of the incident, she was experiencing various neurological issues as well as skin problems. She also suffers from post-traumatic stress disorder and has been attending therapy at the VA. It is difficult living the aftermath of the war. (4) If it is decided that she is not entitled to the award, she will respect that decision. b. A letter, dated 21 December 2016, wherein the VA advised of her summary of benefits. c. A VA TBI Second Level Evaluation, dated 30 January 2017, which shows it was determined, based on the history of the injury from a high-explosive bomb blast and the course of clinical symptoms, she sustained a TBI during OEF deployment. d. A VA Problem List, dated 13 September 2017, which documents her active health problems the VA is helping her manage, which included the late effect of TBI. e. A statement, dated 5 June 2017, wherein a medic stated: (1) She served as the medic for the 778th Transportation Company during their deployment to Kuwait/Iraq. The applicant was involved in an IED incident. She was informed the applicant and two other Soldiers would need to be evaluated for TBI. She performed the TBI assessment an all three members. All three were visibly shaken and had continued complaints of headaches and ringing in their ears. (2) The next morning, she conducted their 24-hour follow-up on their TBI assessments. The applicant had difficulty with recalling a portion of her assessment and was positive for symptoms of a concussion as evaluated by medical staff. She and the medical staff felt it would be better for them to stand down and wait for transport back to Camp Arifjan. (3) Due to powers beyond their control, the three Soldiers were cleared to continue the mission, but were not able to drive. Upon return from deployment, she was able to assist the three Soldiers with providing missing paperwork and medical records. She understands the actual medical records were lost in the shipping process. f. A VA Form 21-4138, dated 19 September 2017, wherein she reiterated the incident of 18 July 2011 in support of her VA claim. 7. The regulatory guidance states 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 as an enemy-related injury which clearly justifies award of the Purple Heart. 8. The evidence confirms the applicant's injury was the result of an IED incident, she received treatment by a medical officer, and the treatment was made a matter of official record. The available medical records do not confirm the applicant suffered a concussion or TBI so disabling as 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 incident. //NOTHING FOLLOWS// ABCMR Record of Proceedings (cont) AR20160005706 2 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS ABCMR Record of Proceedings (cont) AR20170002502 2 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 2