ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS IN THE CASE OF: BOARD DATE: 20 August 2019 DOCKET NUMBER: AR20170008394 APPLICANT REQUESTS: On behalf of his deceased son, a former service member (FSM): * award of the Purple Heart (PH) * reinstatement to specialist / E-4 * correction of his DD Form 214 (Certificate of Release or Discharge from Active Duty) to show his first enlistment APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: * DD Form 149 (Application for Correction of Military Record) * DD Form 214 * Office of the Medical Examiner, Request For Release of Medical Examiner Report, Maricopa County, Phoenix, AZ, Case 17-0XXXX, dated 18 July 2017 * Office of the Medical Examiner, Medical Examiner Report, Maricopa County, Phoenix, AZ, Case 17-0XXXX, dated 18 July 2017 * Office of the Medical Examiner, Toxicological Examination Report, Maricopa County, Phoenix, AZ, Case 17-0XXXX, dated 4 April 2017 * Army Review Boards Agency, Army Discharge Review Board, Case AR2017000000700, dated 14 April 2017 FACTS: 1. The applicant states: a. His son should receive the PH for his service related post-traumatic stress disorder (PTSD) and neck disk herniation injury received while serving during Operation Iraqi Freedom in Ramadi, Iraq. b. His son developed PTSD symptoms while serving in Iraq that increased after he returned. Army civilian personnel failed to realize it was related to his service in Iraq. The Phoenix Department of Veteran's Affairs determined he had severe PTSD and tried to treat him for it but he took his life in 2017. c. His son also incurred two improvised explosive device (IED) rollovers while deployed to Iraq and after years of complaining to the Army and the Department of Veteran's Affairs of neck pain, tingling in his arms, he received an MRI and in 2014 had neck disk herniation surgery. d. His son's first period of honorable period of service and reenlistment should be included on his DD Form 214, along with his rank, specialist. 2. The applicant's request for his son's DD Form 214 to show a previous enlistment is supported by sufficient evidence in the FSM's record; therefore, it will be administratively corrected and not discussed further in this record of proceedings. The Board will consider the applicant's request for correction of his son's rank and award of the PH. 3. Following two years of service in the Regular Army, the FSM was honorably discharged in order to reenlist on 21 January 2009. He served in Iraq during Operation Iraqi Freedom. The dates of his deployment to Iraq are not contained in his available military records. 4. On 28 July 2009, he accepted non-judicial punishment under the provisions of Article 15 of the Uniform Code of Military Justice (UCMJ) for stealing a pair of Armani Exchange sunglasses and a bottle of Burberry Brit cologne, of a value of about $107.40. His punishment consisted of reduction to private first class / E-3 from specialist / E-4, forfeiture of pay (suspended), and extra duty. 5. On 28 October 2009, the Behavioral Health Psychologist, Raymond W. Bliss Army Health Center, conducted a mental health evaluation in connection with his hospitalization from 21 October 2009 through 28 October 2009, for depressed mood and suicidal ideation. He noted: a. His behavior was normal, he was fully alert, he was fully oriented, his mood was anxious, his thinking process was clear, his thought content was normal, and his memory was good. b. Hospital records indicated the FSM was diagnosed with mood disorder not otherwise specified with obsessive-compulsive disorder traits, generalized anxiety disorder, PTSD, and history of heroin abuse. c. The clinical interview indicated that FSM displayed anxious mood but was mentally and emotionally stable without current signs of danger to self or others or risky behavior; returned him to his unit for 24 hours quarters to allow him to re-acclimate to the military environment. 6. On 23 December 2009, the FSM accepted non-judicial punishment under the provisions of Article 15 of the Uniform Code of Military Justice (UCMJ) for breaking restriction from the limits of the company area, and for wrongful use of heroin. His punishment consisted of forfeiture of pay (suspended), restriction, and reduction to private / E-1. 7. The enlisted record brief (ERB), dated 3 March 2010, shows his rank and dated of rank as private/E-1, 13 January 2010. 8. On 18 March 2010, the FSM was discharged under the provisions of Army Regulation 635-200, chapter 14, paragraph 14-12c(2), by reason of Misconduct (Drug Abuse). His character of service was shown as General, Under Honorable Conditions. His rank/grade was shown as Private/E-1. 9. On 12 April 2017, the Army Discharge Review Board granted his request for and upgrade of the characterization of his discharge to honorable. The Board determined the characterization of service was too harsh based on the FSM's length and quality of service to include his combat service. 10. The DD Form 214, dated 11 May 2017, shows his character of service as honorable. 11. The applicant provided a Medical Examiner Report from the Office of the Medical Examiner, Maricopa County, Phoenix, AZ, dated 17 July 2017, showing the FSM was the subject of a postmortem examination. It was the opinion of the examiner he died as a result of hanging and the manner of death was suicide. 12. The applicant provided a Toxicological Examination Report from the Office of the Medical Examiner, Maricopa County, Phoenix, AZ, dated 4 April 2017, showing the femoral blood was positive for Alprazolam. Vitreous was none detected for ethanol, methanol, isopropanol, and acetone. 13. On 7 September 2017, the Army Review Boards Agency Senior Medical Advisor rendered an advisory opinion wherein he stated: a. A review of the applicant’s electronic medical record (AHLTA) revealed clinical encounters from January 2007 through February 2010. Clinical notes reviewed from September 2008 through November 2009. A radiology report from January 2009 was reviewed. Laboratory results from January 2007 through November 2009 were reviewed. The FSM's paper service treatment record was not available for review from the National Personnel Records Center at the National Archives and Records Administration. The applicant’s Interactive Personnel Electronic Records Management System) records were also reviewed. b. A limited review of Department of Veteran’s Affairs records through the Joint Legacy Viewer, listed 40 Department of Veteran’s Affairs entered problems. These included PTSD unspecified, major depressive disorder, depressive disorder not otherwise specified, generalized anxiety disorder, anxiety state not otherwise specified, attention deficit hyperactivity disorder combined type narcissistic personality disorder, anti-social personality disorder, personality disorder unspecified, acquired nose deformity, neck pain, cervical radiculopathy, low back pain, opioid dependence (in remission), alcohol abuse, substance abuse, sedative/hypnotic/anxiolytic dependence, nicotine dependence, legal problems/circumstances, hypertension and others. The FSM was rated at 70 percent service connected as of 30 July 2010 for major depressive disorder and 10% for degenerative arthritis of the spine. c. The applicant met medical retention standards for PTSD, depression, episodic mood disorders, mood disorder not otherwise specified with obsessive compulsive disorder traits, adjustment disorder with depressed mood, neck pain/tenderness, left shoulder pain, lower back pain/sprain, herniated intervertebral lumbar disc, history of alcohol abuse, history of heroin abuse, opioid dependence in remission, history of closed fracture right little finger, history of closed head injury (per applicant history and VA notes - no clear documentation found); existed prior to service pes planus [flat feet] moderate and other physical, medical and/or behavioral conditions in accordance with Army Regulation 40-501 (Medical Service – Standards of Medical Fitness), chapter 3, and following the provisions set forth in Army Regulation 635-40 (Physical Evaluation for Retention, Retirement, or Separation), that were applicable to the applicant’s era of service. d. The FSM’s medical conditions were duly considered during medical separation processing. e. A review of the available documentation found no evidence of a medical disability or condition which would support a change to the character or reason for the discharge in this case. f. The FSM had a post service Department of Veteran's Affairs diagnosis of left cervical radiculopathy based on EMG/NCV in November 2013. g. Based on all the available documentation, the FSM likely had intermittent neck symptoms prior to separation. He clearly met medical retention criteria. He had no clear radicular symptoms until 2011 and/or 2013. There is no clear link between his 2013 cervical radiculopathy diagnosis and the applicant’s 2007 service in Iraq. There are multiple known traumatic confounding events likely to have contributed this condition. 14. On 12 September 2017, the Army Review Boards Agency sent the applicant the Senior Medical Advisor's advisory opinion to allow him the opportunity to submit comments. 15. On 27 September 2017, the applicant replied to the Senior Medical Advisor's advisory opinion. He stated: a. Your Agency's Army Psychiatrist determined that (my son) developed combat related PTSD while on active duty. Although very sad, it helps us understand more why he could not live with the experiences he endured in Iraq. b. As a Vietnam veteran and descendent of ancestors who honorably served in every war this country has been in, I feel it is my duty to focus on hopefully getting him a PH for his diagnosed combat service related PTSD. c. An update of the Maricopa County Medical Examiner's Toxicology report for my son indicated that he had no opiates in his system but did have a high level of alprazolam. He did have a prescription for the alprazolam and he did indicate in his last words to his wife that he had just taken the remaining contents of the bottle. We figured he took the remaining pills so he would relax as he got sleepy and fall out of the tree. d. I heard from him many times a week how he just could not escape the nightmares and memories of what he experienced in Iraq. His VA Center PTSD workbook has an image he drew days before his suicide showing him falling off a cliff. e. Page 2, paragraph 5 states his first clinic (visit) at Fort Huachuca was on 8 May 2009 and on page 3, last paragraph indicates he changed station to Fort Huachuca on 9 November 2009, 6 months after it states he was already at Fort Huachuca. My records show I flew to meet him and we drove back together to Phoenix on 10 March 2009, indicating he changed station prior to that date. 16. Army Regulation 600-8-22 (Military Awards) prescribes Army policy, criteria, and administrative instructions concerning individual and unit military awards. a. The PH is awarded for a wound sustained while in action against an enemy or as a result of hostile action. 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 below. 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. c. PTSD is listed as an examples of a condition that does not justify award of the PH. 17. Army Regulation 635-5 (Separation Documents) states to enter in item 4 (Grade, Rate, or Rank) of the DD Form 214 the active duty grade or rank and pay grade at time of separation from the ERB. BOARD DISCUSSION: After reviewing the application and all supporting documents, the Board determined that partial relief was warranted. Based upon all medical documentation provided by the applicant and found within the military service record, the Board concluded there was insufficient medical evidence to show a specific injury incurred by the FSM, from a specific event, that would warrant the awarding of a Purple Heart. Additionally, the Board found that the applicant was reduced in rank of Private First Class during his term of service based upon misconduct; therefore, the rank reflected on the DD Form 214 accurately depicted the rank of the FSM at the time of separation. However, the Board did note that the applicant did have a prior period of honorable service which is not currently reflected on the DD Form 214 and thus recommended that change to more accurately reflect the military service of the FSM. BOARD VOTE: Mbr 1 Mbr 2 Mbr 3 : : : GRANT FULL RELIEF X X X GRANT PARTIAL RELIEF : : : GRANT FORMAL HEARING : : : DENY APPLICATION BOARD DETERMINATION/RECOMMENDATION: 1. The Board determined the evidence presented is sufficient to warrant a recommendation for partial relief. As a result, the Board recommends that all Department of the Army records of the individual concerned be corrected by adding the following additional statement to block 18 (Remarks) of his DD Form 214: “Continuous honorable active service from 21 January 2009 until 18 March 2010.” 2. The Board further determined the evidence presented is insufficient to warrant a portion of the requested relief. As a result, the Board recommends denial of so much of the application that pertains to upgrading the characterization of his discharge. 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. Army Regulation 600-8-22 prescribes Army policy, criteria, and administrative instructions concerning individual and unit military awards. a. The PH is awarded for a wound sustained while in action against an enemy or as a result of hostile action. The PH may be awarded for concussion injuries caused as a result of enemy generated explosions: mild TBI or a 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. When contemplating this award authorization officials must take into consideration the degree to which the enemy caused the injury. 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 below. 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 PH 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. The key issue commanders must take into consideration when contemplating an award of this decoration 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 sole justification for award. d. Examples of enemy-related injuries which clearly justify award of the PH are as follows: * injury caused by enemy bullet, shrapnel, or other projectile created by enemy action * injury caused by enemy-placed trap or mine * injury caused by enemy-released chemical, biological, or nuclear agent * injury caused by vehicle or aircraft accident resulting from enemy fire * concussion injuries caused as a result of enemy-generated explosions * mild traumatic 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 e.  Examples of injuries or wounds which clearly do not justify award of the PH are as follows: * heat stroke * food poisoning not caused by enemy agents * chemical, biological, or nuclear agents not released by the enemy * battle fatigue * disease not directly caused by enemy agents * accidents, to include explosive, aircraft, vehicular, and other accidental wounding not related to or caused by enemy action * self-inflicted wounds, except when in the heat of battle and not involving gross negligence * PTSD * airborne (for example, parachute/jump) injuries not caused by enemy action 2. Army Regulation 40-501, in effect at the time, governed medical fitness standards for enlistment, induction, appointment (including officer procurement programs), retention, and separation (including retirement). Chapter 3 provided the various medical conditions and physical defects which may render a Soldier unfit for further military service. Soldiers with conditions listed in this chapter who did not meet the required medical standards would be evaluated by a medical evaluation board (MEB) and would be referred to a physical evaluation board (PEB). 3. Army Regulation 635-40, in effect at the time, governed the evaluation of physical fitness of Soldiers who may be unfit to perform their military duties because of physical disability. The unfitness must be of such a degree that a Soldier is unable to perform the duties of his or her office, grade, rank, or rating in such a way as to reasonably fulfill the purposes of his or her employment on active duty. 4. Army Regulation 635-5, in effect at the time, prescribed the separation documents that must be prepared for Soldiers on retirement, discharge, or release from active duty service or control of the Active Army. It also established standardized policy for preparing and distributing the DD Form 214. a. It stated to enter in item 4 (Grade, Rate, or Rank), the active duty grade or rank and pay grade at time of separation from the ERB. b. It stated to enter in item 18 (Remarks) for enlisted soldiers with more than one enlistment period during the time covered by this DD Form 214, enter "IMMEDIATE REENLISTMENTS THIS PERIOD" (specify dates). ABCMR Record of Proceedings (cont) AR20170008394 7 1