ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS IN THE CASE OF: BOARD DATE: 29 April 2019 DOCKET NUMBER: AR20170004296 APPLICANT REQUESTS: Award of the Purple Heart. APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: * DD Form 149 (Application for Correction of Military Record) * Medical Evaluation Board (MEB) Proceedings * Soldier Programs and Services Division, Human Resources Command (HRC), Response and Supporting Documentation * DD Form 214 (Certificate of Release or Discharge from Active Duty) FACTS: 1. The applicant did not file within the three year time frame provided in Title 10, United States Code (USC), section 1552 (b); however, the Army Board for Correction of Military Records conducted a substantive review of this case and determined it is in the interest of justice to excuse the applicant's failure to timely file. 2. The applicant states the information on her traumatic brain injury (TBI) from a blast explosion along with the injuries to her cervical and lumbar spine were not found in a review of the Armed Forces Longitudinal Health Technical Application (AHLTA) in their consideration for the award of a Purple Heart for her injuries. She included the records for review from the board and documentation. She feels is sufficient for her injuries to warrant the award. 3. The applicant provided: a. The MEB findings showing the medical conditions/defects and diagnosis by the board, dated 7 September 2012. b. HRC response packet to her request for an award of the Purple Heart for injuries received while deployed in support of Operation Enduring Freedom was denied on 22 December 2016. c. Her DD 214 showing her release from active duty for the period of 5 July 2007 to 8 May 2013. 4. A review of the applicant’s service record shows: a. Have had prior service in the Army National Guard, she enlisted in the Regular on 5 July 2007. b. She served in Iraq in 9 November 2004 to 1 November 2005 and in Afghanistan from 23 October 2010 to 10 October 2011. She was assigned to the Forward Support Company, 2nd Battalion, 30th Infantry Regiment, Fort Polk, LA. c. On 23 July 2013, a physical evaluation board (PEB) found her unfit. The PEB noted that her disability disposition is based on disease or injury incurred in the line of duty in combat with an enemy of the United States and as direct result of armed conflict or caused by an instrumentality of was and incurred in the line of duty during a period of war. The PEB recommended a combined rating of 70% and that the applicant’s disposition be placement on the temporary disability retired list (TDRL). d. The applicant was honorably separated on 8 May 2013 and placed on the TDRL on 9 May 2013. Her DD Form 214 shows she was released under the provisions of Army Regulation (AR) 635-40, Physical Evaluation for Retention, Retirement, or Separation), Chapter 4. She completed 5 years, 10 months, and 4 days with prior active service of 1 year, 7 months, and 3 days. DD Form 214 does not show the Purple Heart as an authorized award. 5. On 22 December 2016, by letter an official of the Soldier Programs and Services Division, U.S. Army Human Resources Command (HRC), notified the applicant that the request for an award of the Purple Heart for injuries received while deployed in support of Operation Enduring Freedom does not meet the statutory guidance in accordance with AR 600-8-22 (Military Awards), paragraph 2-8h (13). The review of AHLTA by the Command Surgeon did not reflect a diagnosis of traumatic brain injury (TBI). The lack of supporting medical documentation in AHLTA combined with the submitted documentation make it impossible to connect an injury to the incident. 6. By regulation (AR 600-8-22 (Military Awards)): a. To be awarded the Purple Heart, the regulatory guidance requires all elements of the award criteria to be met; there must be proof a wound was incurred as a result of enemy action, that the wound required treatment by medical personnel, and that the medical personnel made such treatment a matter of official record. b. When contemplating eligibility for the Purple Heart, the two critical factors commanders must consider is the degree to which the enemy or hostile force caused the wound, and was the wound so severe that it required treatment by a medical officer. a. Some examples of enemy-related actions which justify eligibility for the Purple Heart include injury caused by enemy emplaced trap, mine or other improvised explosive device; as well as concussions and or mild TBI caused as a result of enemy-generated explosions that result in 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. 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 she 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. The applicant did submit medical records showing treatment. In events involving TBI and other similar injuries, the applicant’s record must show that the brain injury 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. In a submitted statement of the applicant, she states that she “blacked out” for a period of time. However, in the substantiated medical record, the doctor notes that the applicant stated she did not black out. Additionally, in a statement from a fellow Soldier (Travis Carter), after being medically screened upon returning to the FOB, he stated that they both returned to work without issue. For that reason, 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. 5/7/2019 X CHAIRPERSON Signed by 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 (AR) 600-8-22, effective 25 June 2015, prescribes policies and procedures for military awards and decorations, to include the Purple Heart. 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 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. When contemplating an award of this decoration, the key issue that commanders must take into consideration 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 the sole justification for the award. c. Examples of enemy-related injuries which clearly justify award of the Purple Heart include concussion injuries caused by enemy-generated explosions, and a TBI or concussion that is severe enough to cause: * loss of consciousness; or * restriction from full duty due to persistent signs, symptoms, or clinical findings; or * impaired brain functions for a period greater than 48 hours from the time of the concussive incident 3. Army Regulation 635-40, (Physical Evaluation for Retention, Retirement, or Separation, governs the evaluation for physical fitness of Soldiers who may be unfit to perform their military duties because of physical disability. Chapter 4, prescribes the final disposition based upon the final decision of the U.S. Army Physical Disability Agency or Army Physical Disability Appeal Board, will issue retirement orders or other disposition instructions as follows: * Permanent retirement for physical disability * Placement on the TDRL * Separation for physical disability with severance pay * Separation for physical disability without severance pay