ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS BOARD DATE: 9 September 2019 DOCKET NUMBER: AR20170009006 APPLICANT REQUESTS: reversal of the decision by the Awards and Decorations Branch at the U.S. Army Human Resources Command (HRC) to deny him the Purple Heart. APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: * DD Form 149 (Application for Correction of Military Record under the Provisions of Title 10, U.S. Code, Section 1552) * Commander's Incident Report, dated 11 October 2005 * Standard Form 608 (Chronological Record of Medical Care), dated 11 October 2005 and 27 November 2005 * DD Form 2796 (Post Deployment Health Assessment), dated 22 February 2006 * Progress Notes, dated 4 April 2006 * DD Form 2900 (Post Deployment Health Reassessment), dated 8 July 2006 * Compensation and Pension Examination, dated 2 August 2006 * Clinic Notes, Presbyterian Medical Group, Rio Rancho High Resort Orthopedics, dated 17 October 2008 and 9 December 2008, with radiology consult report * Medical Document, Presbyterian Medical Group Neurology, dated 16 February 2009 * Magnetic Resonance Imaging (MRI), Presbyterian MRI Center, dated 3 March 2009 * DD Forms 2173 (Statement of Medical Examination and Duty Status) dated 19 May 2009 and 27 August 2009 * Memorandum, Great Plains Regional Command, Fort Sam Houston, TX, dated 21 August 2009, subject: Line of Duty Investigation, Injury, (Applicant) * MRI, Albuquerque Imaging Center, dated 28 December 2009 * Report of Neuropsychological Evaluation, Southern Arizona Neuropsychology, dated 8 April 2010 * Memorandum, Headquarters, Western Regional Medical Command, Joint Base Lewis-McCord, WA, dated 1 September 2010, subject: Line of Duty Review (Applicant) * DA Form 2823 (Sworn Statement) dated 8 March 2013, 15 March 2013, and 31 March 2013 * Memorandum, Community Based Warrior Transition Unit, Riverton, UT, dated 8 July 2013, subject: Request for Award of the Purple Heart (Applicant) * DA Form 4187 (Personnel Action) Purple Heart Request, dated 15 July 2013 * DD Form 214 (Certificate of Release or Discharge from Active Duty) * Memorandum, U.S. Army Human Resources Command, Fort Knox, KY, dated 25 November 2014, subject: Award of the Purple Heart for (Applicant) 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: * his disapproval from U.S. Army Human Resources Command (HRC) for the award of the Purple Heart should be reconsidered * he believes the error was a resulted from the lack of supporting documents which he has now included * he believed his request for the Purple Heart would have been stopped by his chain of command if he lacked evidence but his command has signed off on all documents * he wishes to be reconsidered for the award of the Purple Heart 3. At the time of the incident in which the applicant states he was injured in support of his request for the award of the Purple Heart, he was a mobilized Army National Guard (ARNG) Soldier, specialist/E-4 Health Care Specialist, deployed to Iraq. 4. He entered active duty on 15 July 2007 and subsequently served in Kuwait/Iraq from 30 July 2005 to 17 February 2006. He provided a copy of a Commander's Incident Report dated 11 October 2005 stating: * he was in a vehicle that was struck by an improvised explosive device (IED) * all personnel in the vehicle have ringing in their ears and no major injuries * the applicant was taken to the Troop Medical Clinic for a checkup 5. On 11 October 2005 the Area Support Medical Company (ASMC) diagnosed the applicant with injury from a terrorist explosion as mild tinnitus to bilateral ears and also diagnosed a lower back strain. 6. On 27 November 2005 the applicant was seen at the ASMC with complaints of ear pain and headache. The ASMC diagnosed the applicant with earache and headache syndrome. 7. On 22 February 2006, the applicant completed a Post Deployment Health Assessment stating he had symptoms of headaches, back pain, dizziness, fainting, light headedness, and ringing of the ears during his deployment and currently has these symptoms. He listed his concerns as back problems, knee problems, mental problems, respiratory problems, and body fluids. 8. The applicant was honorably released from active duty on 21 March 2006. His DD Form 214 shows narrative reason for separation as completion of required active service. This DD Form 214 does not list the Purple Heart ads an authorized award. 9. He provided medical document from the Department of Veterans Affairs (VA). On 4 April 2006, comprehensive new patient clinic note shows the applicant had chief complaints of low back pain and left knee pain. Additionally, he complained of tension headaches, twice a week. 10. On 8 July 2006, the applicant completed a Post Deployment Health Reassessment stating he had symptoms of headaches, back pain, ringing of the ears, dizziness, fainting, and light headedness. 11. On 19 July 2006 the applicant was activated with the National Guard Title 32 and entered active duty. He was assigned to Detachment 4, Joint Forces Headquarters (Medial Detachment), in New Mexico, as a health care specialist. 12. The applicant provided a partial copy of his VA compensation and pension examination performed on 2 August 2006. The applicant had complaints of low back pain and left knee pain. His medical history shows dizziness and tinnitus and vertigo from multiple exposures to loud noises/blasts while on active duty in Operation Iraqi Freedom. 13. He was honorably released from active duty on 30 April 2007. His DD Form 214 shows narrative reason for separation as completion of required active service. This DD Form 214 also does not show the Purple Heart as an authorized award. 14. He was ordered to active duty in support of Operation Iraqi Freedom on 14 May 2007. He served in Kuwait/Iraq from 8 August 2007 to 20 February 2008. 15. He was honorably released from active duty on 22 March 2008. His DD Form 214 shows narrative reason for separation as completion of required active service. This DD Form 214 also does not show the Purple Heart as an authorized award. 16. The applicant provided medical documents from an Orthopedic with reevaluation on 17 October 2008 and 9 December 2008. The physician gave an impression of left knee pain and osteoarthritis. 17. The applicant provided a copy of his neurology examination performed on 16 February 2009, for a follow up of his traumatic brain injury (TBI). He complained of dizzy spells, memory loss, headaches, and blurry vision since his IED explosion in 2005. The neurologist diagnosed the applicant with post-concussion syndrome and posttraumatic stress disorder. 18. On 19 May 2009, his Warrior Transition Unit completed a Statement of Medical Examination and Duty Status, showing the applicant was exposed to an IED blast on 11 October 2005 and evaluated at Camp Liberty ASMC in Iraq. Follow up care at his home of record some 4 years later, in February-March 2009, including imaging studies, established diagnosis of TBI. 19. On 21 August 2009 the commander, Great Plains Regional Medical Commend determined the applicant's injury of TBI was in the line of duty. 20. The applicant provided a copy of a neuropsychology evaluation performed on 1 April 2010 to determine whether he exhibits cognitive impairment that is consistent with a history of TBI. The neuropsychologist gave an assessment stating the applicant probably has post-concussion syndrome as he has been complaining of headaches, dizziness, memory loss, and memory problems. 21. On 27 August 2010, his Warrior Transition Unit completed a Statement of Medical Examination and Duty Status, showing on 11 October 2005 while deployed to Iraq the applicant had exposure to an IED blast while on patrol. 22. On 1 September 2010, the applicant's bilateral tinnitus was determined to be in the line of duty. 23. The applicant provided sworn statements from sergeant first class C , staff sergeant M and himself, attesting to the circumstances surrounding the IED blast. Staff Sergeant M and the applicant both stated that they lost consciousness as a result of the IED blast. 24. On 8 July 2013, the commander, Community Based Warrior Transition Unit, submitted a request to HRC for the award of a Purple Heart for the applicant. 25. The applicant was honorably released from active duty on 26 June 2014, and placed on the Temporary Disability Retired List on 27 June 2014. His DD Form 214 shows type of separation as retirement and narrative reason for separation as disability, temporary (enhanced). 26. On 25 November 2014, HRC disapproved the award of the Purple Heart for the applicant for the injuries he received while deployed in support of Operation Iraqi Freedom. The Command Surgeon determined based on the applicant's medical record, there was insufficient evidence to support a diagnosis and/or treatment of an injury caused by the enemy for award of the Purple Heart. 27. On 15 December 2014, HRC approved the applicant's application for Combat- Related Special Compensation. 28. On 29 August 2016, an Informal Physical Evaluation Board found the applicant was physically unfit and recommended a rating of 80 percent and that the applicant disposition be permanent disability retirement. 29. On 30 August 2016, the U.S. Army Physical Disability Agency removed the applicant from the Temporary Disability Retired List because of permanent physical disability and permanently retired him. Disability is based on injury or disease received in the line of duty as a direct result of armed conflict or caused by an instrumentality of war. Disability resulted from a combat related injury. 30. By regulation (AR 600-8-22 - Military Awards), 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. a. 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. b. 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 BOARD DISCUSSION: After reviewing the application and all evidence, the Board found the relief is not warranted. The applicant’s contentions were carefully considered. Evidence of record shows his initial medical concerns, immediately after the incident, was ringing in the ears; there was no record of a concussion nor limited duty prescribed by a medical officer. The Board agreed the sworn statement provided years after the event did not substantiate a qualifying wound per regulatory guidance. Based upon the preponderance of the evidence, the Board determined the incident did not entitle him to the 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. X 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 600-8-22 (Military Awards) provides that the Purple Heart is awarded for a wound sustained 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 a medical officer, and the medical treatment must have been made a matter of official record. a. 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. 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 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. 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 Purple Heart 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 Purple Heart are as follows: * frostbite (excluding severe frostbite requiring hospitalization from 7 December 1941 to 22 August 1951) * trench foot or immersion foot * 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 * post-traumatic stress disorder * airborne (for example, parachute/jump) injuries not caused by enemy action * hearing loss and tinnitus (for example, ringing in the ears) * mild traumatic brain injury 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 * abrasions and lacerations (unless of a severity to be incapacitating) * bruises (unless caused by direct impact of the enemy weapon and severe enough to require treatment by a medical officer) * soft tissue injuries (for example, ligament, tendon, or muscle strains, sprains, and so forth) * first degree burns //NOTHING FOLLOWS//