ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS IN THE CASE OF: BOARD DATE: 9 May 2019 DOCKET NUMBER: AR20170009376 APPLICANT REQUESTS: Award of the Purple Heart. APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: * DD Form 149 (Application for Correction of Military Record) * List of Evidence * Purple Heart Recommendation * Inspector General (IG) Office 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 that he sustained injuries during combat operations by an improvised explosive device (IED) blast in Tikrit, Iraq on 31 January 2006. The documents that were submitted were not properly reviewed and all evidence in support of entitlement for the Purple Heart was met and documented. The first submission was denied by the reserve brigade commander. The commander stated, that just because he got a bad back, bloody nose and headache doesn’t not mean he gets a Purple Heart. At the time, the injury could not be fully assessed and diagnosed due to lack of medical equipment and command climate. The former commander and Colonel (COL) (retired) X explained the reason he was not medically evacuated (MEDVAC) to a higher medical command staff and was not recommend for a Purple Heart was per the brigade climate at the time. 3. The applicant provided: a. A self authored statement, in effect stating that there was a discovery of an alleged error or injustice: On 31 January 2006 in Tikrit, Iraq, during dismount observation, the combat quick reaction force (QRF) vehicle was hit by a surface laid 155mm IED. This led to his L-5 receiving a compression fracture and compressed a. discs. Upon review of his active duty medical exit exam, a medical examiner noted medical attention from an IED blast. He was asked by the examiner, "where is your Purple Heart"? He did not know that his injuries were that severe. Then after taking the Veteran Affairs examination, they noted that he received various back trauma and spinal injuries. This began his pursuit of the Purple Heart in January 2007. b. He left active duty and it was too late to begin the process. He entered the U.S. Army Reserve and worked with the unit administrative team to research how to apply for the Purple Heart. In 2008, he submitted a packet to the U.S. Army Human Resource Command (HRC). The request was returned without action due to various discrepancies, however, the issues were immediately corrected. He tried on multiple occasions from 4 November 2009 to 2011 to resubmit the request for the Purple Heart. It was denied on various occasions by the brigade commander COL X . The commander went as far as to email and state,”I do not understand why this award was not awarded in theater, a bloody nose and a sore back does not define wounded.” This delayed the packet. c. Once COL X___ left the command, another attempt was made to submit the packet. At this time, COL X____ stated as a practice he does not revisit decisions of this nature from previous a commander unless there is new information/evidence or a compelling reason to reverse a decision. d. In 2013, he spoke with the inspector general (IG) office concerning this issue. He submitted the packet again, his command supported the request. On 24 July 2015, he received correspondence that stated that the Purple Heart request was denied. The diagnosis and treatment in the medical document provided did not meet the criteria for award of the Purple Heart. He was provided guidance to appeal his case to the Army Board for Correction of Military Records (ABCMR). e. He provided, in part, the recommendation for award of the Purple Heart. The request was denied by his command and HRC. Also included, is the letter from the IG office dated 11 August 2015, informing the applicant that his request was returned without action and disapproved by HRC stating that Army Regulation 600-8-22 (Military Awards), chapter 2-8, (16) prohibits soft tissue injuries such as muscle, ligament, sprains or strains as qualifying for award of the Purple Heart. As his medical documentation and statements from medical personnel provided indicated, he received injuries from an IED blast that caused lower back pain. No further diagnosis were indicated to determine injury that qualified for the Purple Heart. The case was closed. 4. A review of the applicant’s service record shows: a. He had prior service in the Marine Corps Reserves, he enlisted in the Regular on 17 January 2002. a. b. He served in Iraq in 27 February 2003 to 7 February 2004 and 18 September 2005 to 11 September 2006. c. He was honorably discharged on 18 January 2007. His DD Form 214 shows he was released under the provisions of Army Regulation (AR) 635-200, (Active Duty Enlisted Administrative Separations), Chapter 4, completion of required active service. He completed 5 years, and 2 days this period with prior active service of 5 months, and 22 days. His DD Form 214 does not show the Purple Heart as an authorized award. d. On 24 July 2015 by letter, an official of the HRC Award and Decoration Branch, notified the applicant that his request for an award of the Purple Heart for injuries received while deployed in support of Operation Iraqi Freedom is disapproved. Award of the Purple Heart is limited to members of the Armed Forces of the United States who have been wounded or killed as a direct result of enemy action. The diagnosis and treatment in the medical document provided does not meet the criteria for award of the Purple Heart. While this was an unfortunate event, a request for award of the Purple Heart has several regulatory requirements not met by the documentation provided. e. On 17 November 2017, a physical evaluation board (PEB) found him unfit. The PEB noted in the administrative determinations that his 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 100% and that the applicant’s disposition be placement on the permanent disability retired list (PDRL). f. Order D347-50, dated 13 December 2017 placed him on the permanent physical disability retired list on 17 January 2018 and his retired grade of rank reads: E-6. g. Order D039-49, dated 8 February 2018, amended his retired grade of rank to read: E-7. 5. 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. 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 a. 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: After reviewing the application and all supporting documents, the Board found that relief was not warranted. Based upon the documentary evidence, specifically the HRC advisory finding the diagnosis and treatment in the medical document provided does not meet the criteria for award of the Purple Heart, the Board concluded there was no error or injustice which would warrant making a correct to the applicant’s record. For that reason, the Board recommended denying the applicant’s record for relief. 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. 5/13/2019 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 (Military Awards), 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