ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS IN THE CASE OF: BOARD DATE: 28 August 2019 DOCKET NUMBER: AR20170008757 APPLICANT REQUESTS: to appeal the decision of the Soldier Programs and Services Division, U.S. Army Human Resources Command (HRC) to award him the Purple Heart (PH). APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: * DD Form 149 (Application for Correction of Military Record) * Soldier Programs and Services Division, HRC Decision Letter * Self-Authored Letter 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 he is submitting an appeal to the HRC decision to deny him the PH for injuries sustained due to enemy action. In a self-authored letter, he states HRC denied him the PH based on Army Regulation (AR) 600-8-22 (Military Awards), paragraph 2-8h(13) (PH). By regulation, either a loss of consciousness needs to be documented and/or a minimum period of 48 hours restriction from full duty is required to be eligible for the PH. a. According to Department of Defense Instruction 6490.11, (Management of Mild Traumatic Brain Injury/Concussion in the Deployed Setting) September 18, 2012, Enclosure 3, paragraph 4-a, "Service members involved in a potentially concussive event are required to rest for 24 hours, beginning at the time of the event." This standard was issued six years after the incident(s) described in his original PH application. Had this measure been in place, he would have been removed from duty until reevaluated after the minimum 24 hours rest period, but most likely it would have been 48 hours or more due to the continuation of his symptoms (i.e. headaches, neck pain). In the original application package copies of military medical records were provided in which he reported having headaches directly after the improvised explosive devised (IED) and a few days later during his follow up evaluation. b. https://www.hrc.army.mil/content/Purple%20Heart is a link to the HRC guidance on PH awards. Within the eligibility criteria it is identified that "neurological deficits, headaches, nausea, difficulty with understanding or expressing words, sensitivity to light, and so forth that may or may not be transient" qualifies as meeting eligibility criteria. Moreover, according to an article from Military Medicine, "Mild Traumatic Brain Injury (mTBI) Screening, Diagnosis, and Treatment" (2012), symptoms such as headaches, dizziness, nausea and vomiting alone do not constitute a diagnosis of mTBI and that further testing is needed to make such a determination. Such a determination would have to be made by a trained neuropsychiatrist. In 2006 the only two locations to receive such evaluations would have been in Air Force Theater Hospital in Balad, Iraq, or Landstuhl Regional Medical Center, Germany (NAS, 2013). During the reported events he was at Forward Operating Base (FOB) Warhorse. FOB Warhorse had a very small medical detachment staffed by a few medical personnel and did not have the adequate equipment or personnel to conduct an effective traumatic brain injury (TBI) evaluation. c. In "Returning Home from Iraq and Afghanistan: Assessment of Readjustment Need of Veterans, Service Members, and Their Families", an article published by the National Academy of Sciences (2013), it is reported that "identifying a head injury often relies on self-reported symptoms, but Service members may be reluctant to report symptoms because they do not want to be separated from their unit and wish to avoid any stigma associated with psychologic or psychiatric services." He described this behavior in his original application. Furthermore, the report identified in 2006 an expert Department of Defense (DOD) panel concluded a neurocognitive assessment is important to an effective TBI assessment. It was not until 2008 that DOD issued guidance for each service branch regarding effective evaluation through the tool Automated Neuropsychological Assessment Metrics. This gave way to the now widely used Military Acute Concussion Evaluation. Again, had these tools been present at the time of the event reported, it is reasonable to assume that he would have been given a diagnosis of mTBI in theater. d. In addition to the above, January 17, 2008, the "Report to the Surgeon General Traumatic Brain Injury Task Force," identified in Section 1-2, paragraph b, a number of gaps regarding TBI assessment and treatment in the military. Some examples are "a lack of coordination and policy driven approaches.” For example, TBI identification and documentation is not standardized due to the absence of U.S. Army Medical Command, Army, or Health Affairs policy. This leads to inaccuracies of incidence data, treatment, and documentation especially for mild TBI. Likewise, professional educational tools for Soldiers, units, leaders, families, providers and communities lack standardization and effective-dissemination." The report also identified "there is no standardized Armed Forces Health Longitudinal Technology Application (AHLTA) template for documenting the results of screening and inconsistent use of standardized codes, especially for those with non-symptomatic TBI and mTBI." e. The Army Medical Department Journal, April-September 2016, reported "prior to 2010, up to 90% of concussed Service members remained undiagnosed" and TBI "was not well understood and there was a lack of standardized training, facilities, staffing, and medical documentation." This suggests it is more likely than not that his mTBI went undiagnosed in theater. f. In conclusion, he feels it is more likely than not that he meet the criteria for the award of the PH due to injuries incurred by enemy action. This is based on the facts that he was not given an effective TBI assessment after the IED blast and he was not taken off of full duty even though his reported symptoms would have been enough under current regulations to do so. Finally, it is clearly documented that the Army did not have a quality understanding of TBI, thus a lack in assessment tools and properly trained medical staff at the time of the event. 3. A review of his service record shows: a. On 17 September 2004, he enlisted in the Regular Army. b. The facts and circumstances surrounding his assignments, deployments, and achievements are unavailable for the Board to review. His enlisted record brief, dated 6 June 2007, do not list in Section I (Assignment Information) any overseas or deployment combat duty assignments. Section IX (Assignment Information) lists various stateside assignments. His DD Form 214 (Certificate of Release or Discharge from Active Duty) shows he had service in Iraq from 29 November 2005 to 28 November 2006. c. On 29 August 2007, he was discharged from active duty under the provisions of AR 635-40 (Physical Evaluation for Retention, Retirement, or Separation), paragraph 4-24b(3) (Disposition by HRC), and issued an honorable discharge. His DD Form 214 reflects that he completed 2 years and 11 months. It also shows that he was awarded or was authorized the: * Army Commendation Medal (3rd Award) * National Defense Service Medal * Global War on Terrorism Service Medal * Iraq Campaign Medal * Army Service Ribbon * Overseas Service Ribbon * Combat Action Badge d. On 1 March 2008, he was removed from the temporary disability retired list and permanently retired. e. On 26 January 2017, the Soldier Programs and Services Division, HRC issued a decision letter to the applicant denying his request for an award of the PH for injuries received while deployed in support of Operation Iraqi Freedom. A review of AHLTA by the Command Surgeon did not reflect a diagnosis or indications of TBI at or near the date of enemy action. The lack of supporting medical documentation in AHLTA combined with the submitted documentation make it impossible to connect a qualifying injury to the incident. 4. There is no evidence found in the applicant's military records indicating he was injured or wounded as a result of hostile action. Several typical sources which would show he was wounded or injured as a result of hostile action are not available for review with this case. a. His medical records, which would have listed any injuries and treatment, are not available for review with this case. b. His personnel records do not contain an official Army message or a Western Union telegram notifying his next of kin of an injury or wound sustained in action. This was the proper notification procedure for injuries at the time. 5. By regulation, the PH 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. 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 applicant was participating in direct or indirect combat operations is a necessary prerequisite, but is not the sole justification for the award. The criteria for an award of the PH requires the submission of substantiating evidence to verify that: * the injury/wound was the result of hostile action * the injury/wound must have required treatment by medical personnel * the medical treatment must have been made a matter of official record 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. 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. The applicant raised a change in policy concerning the treatment of TBI injuries by raising Department of Defense Instruction 6490.11. The Board, however, found that there was insufficient evidence presented by the applicant to show that his injury rose to the level which would show his treatment would have been different based upon this new policy. Therefore, after reviewing the application and all supporting documents, the Board agreed with the findings of HRC and recommended denying the applicant’s request for a Purple Heart. 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, United States Code, 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), paragraph 2-8 (Purple Heart (PH)), states the PH is awarded to any member of an Armed Force of the United States who has been wounded, killed, or who has died or may hereafter die of wounds received under any action again an enemy of the United States; any action with an opposing armed force of a foreign counter in which the Armed Forces of the United States are or have been engaged, or as the result of an act of any such enemy or opposing Armed Forces. To qualify for award of the PH the wound must have been of such severity that it required treatment, not merely examination, by a medical officer. A wound is defined as an injury to any part of the body from an outside force or agent. A physical lesion is not required. ABCMR Record of Proceedings (cont) AR20170008757 6 1