BOARD DATE: 8 January 2019 DOCKET NUMBER: AR20170010123 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. BOARD DATE: 8 January 2019 DOCKET NUMBER: AR20170010123 BOARD VOTE: Mbr 1 Mbr 2 Mbr 3 : : : GRANT FULL RELIEF : : : GRANT PARTIAL RELIEF : : : GRANT FORMAL HEARING :MRB :WDF :BEV DENY APPLICATION 2 Enclosures 1. Board Determination/Recommendation 2. Evidence and Consideration BOARD DATE: 8 January 2019 DOCKET NUMBER: AR20170010123 APPLICANT'S REQUEST AND STATEMENT: 1. The applicant requests award of the Purple Heart. 2. The applicant states while he was deployed to Iraq, their convoy was struck by an improvised explosive device (IED). He sustained a traumatic brain injury (TBI) during this attack. His medical records were lost during this deployment and the U.S. Army Human Resources Command (HRC) denied his request for the Purple Heart based on this fact. He is presenting documentation in the form of witness statements from his former commander and medical personnel who were at the site of the attack to prove he was injured during the attack. THE BOARD CONSIDERED THE FOLLOWING EVIDENCE: 1. Application for correction of military records with supporting document(s): * DA Form 2823 (Sworn Statement), dated 13 December 2013 * two witness statements * memorandum from Lieutenant Colonel (LTC) C, dated 5 March 2014, subject: Supporting Statement for Purple Heart Award for [applicant] * DA Form 4187 (Personnel Action), dated 20 May 2014 * DA Form 4187-1-R (Personnel Action Form Addendum), dated 20 May 2014 * memorandum from Tripler Army Medical Center, Medical Correspondence, dated 12 July 2016, subject: Unsatisfactory Research * memorandum from Soldier Programs and Services Division, HRC, dated 13 January 2017, subject: Award of the Purple Heart for [applicant] 2. Evidence from the applicant’s service record and Department of the Army and Department of Defense records and systems: * DD Form 4 (Enlistment/Reenlistment Document – Armed Forces of the United States) * DD Form 214 (Certificate of Release or Discharge from Active Duty) REFERENCES: 1. Army Regulation 600-8-22 (Military Awards) prescribes Army policy, criteria, and administrative instructions concerning individual and unit military awards. This regulation provides that 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 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. a. 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 above. 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. b. When contemplating an award of the Purple Heart, 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 award. c. Examples of enemy-related injuries that clearly justify award of the Purple Heart include concussion injuries caused as a result of enemy-generated explosions resulting in a mild TBI 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. d. Examples of injuries or wounds that clearly do not justify award of the Purple Heart include post-traumatic stress disorders, hearing loss and tinnitus, mild TBI 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. e. When recommending and considering award of the Purple Heart for a mild TBI or concussion, the chain of command will ensure that both diagnostic and treatment factors are present and documented in the Soldier's medical record by a medical officer. 2. Army Directive 2011-07 (Awarding the Purple Heart), dated 18 March 2011, provides clarifying guidance to ensure the uniform application of advancements in medical knowledge and treatment protocols when considering recommendations for award of the Purple Heart for concussions (including mild TBI and concussive injuries that do not result in a loss of consciousness). The directive also revised Army Regulation 600-8-22 to reflect the clarifying guidance. a. Approval of the Purple Heart requires the following factors among others outlined in Department of Defense Manual 1348.33 (Manual of Military Decorations and Awards), Volume 3, paragraph 5c: wound, injury or death must have been the result of an enemy or hostile act, international terrorist attack, or friendly fire and the wound for which the award is made must have required treatment, not merely examination, by a medical officer. Additionally, treatment of the wound shall be documented in the Soldier's medical record. b. 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 Soldier’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. A medical officer is defined as a physician with officer rank. The following are medical officers: an officer of the Medical Corps of the Army, an officer of the Medical Corps of the Navy, or an officer in the Air Force designated as a medical officer in accordance with Title 10, U.S. Code, section 101. d. A medical professional is defined as a civilian physician or a physician extender. Physician extenders include nurse practitioners, physician assistants and other medical professionals qualified to provide independent treatment (for example, independent duty corpsmen and Special Forces medics). Basic corpsmen and medics (such as combat medics) are not physician extenders. e. When recommending and considering award of the Purple Heart for concussion injuries, the chain of command will ensure that the criteria are met and that both diagnostic and treatment factors are present and documented in the Soldier’s medical record by a medical officer. f. The following nonexclusive list provides examples of signs, symptoms or medical conditions documented by a medical officer or medical professional that meet the standard for the Purple Heart: (1) Diagnosis of concussion or mild traumatic brain injury; (2) Any period of loss or a decreased level of consciousness; (3) Any loss of memory of events immediately before or after the injury; (4) Neurological deficits (weakness, loss of balance, change in vision, praxis (that is, difficulty with coordinating movements), headaches, nausea, difficulty with understanding or expressing words, sensitivity to light, etc.) that may or may not be transient; and (5) Intracranial lesion (positive CT or magnetic resonance imagining (MRI) scan). g. The following nonexclusive list provides examples of medical treatment for concussion that meet the standard of treatment necessary for award of the Purple Heart: (1) Limitation of duty following the incident (limited duty, quarters, etc); (2) Pain medication, such as acetaminophen, aspirin, ibuprofen, etc., to treat the injury; (3) Referral to a neurologist or neuropsychologist to treat the injury; and (4) Rehabilitation (such as occupational therapy, physical therapy, etc.) to treat the injury. h. Combat theater and unit command policies mandating rest periods or downtime following incidents do not constitute qualifying treatment for concussion injuries. To qualify as medical treatment, a medical officer or medical professional must have directed the rest period for the individual after diagnosis of an injury. 3. The Military Acute Concussion Evaluation (MACE) is a standardized mental status examination that is used to evaluate mild TBI, or concussion, in theater. This screening tool was developed to evaluate a person with a suspected concussion and is used to identify symptoms of a mild TBI. Future MACE scores can be used to determine if the patient’s cognitive function has improved or worsened over time. To be most effective, all service members experiencing concussion, or mild TBI, should have the MACE administered within the first 24 hours of the event in order to make certain that proper care is administered in a timely fashion. The MACE, in combination with a medical exam, can be used to help determine if it is safe for a service member to return to duty. DISCUSSION: 1. The applicant enlisted in the Regular Army on 6 September 1994. He served in Iraq from 17 November 2009 to 6 August 2010. 2. The applicant provides: a. A DA Form 2823, dated 13 December 2013, provided by Staff Sergeant (SSG) P, describing the events that occurred on 21 March 2010. SSG P expressed his belief that the applicant sustained a concussion as a result of the IED attack. b. Two witness statements, provided by former members of his unit in Iraq, describing the events that took place on 21 March 2010. The statements also provide that the applicant underwent a MACE evaluation and that it is their belief that he sustained a concussion as a result of the IED attack. c. A memorandum from LTC C, dated 5 March 2014, who stated the following: I am writing this memorandum in support of [applicant's] request for the Purple Heart Award due to wounds suffered in combat in the Iraqi Theater of Operations. [The applicant] served under my command from June 2009 through June 2011, to include a nine month combat tour in Kirkuk Province, Iraq. During our deployment he served as a Security Transition Team NCOIC for the 46th Iraqi Army Brigade, stationed at JSS McHenry, near the town of Hawijah in western Kirkuk. During the period of our deployment [the applicant] was personally known to me and I can attest to his character and truthfulness. I found him to be an honest, forthright, and courageous leader who cared only for the welfare of his men and mission accomplishment. On the day of 21 March 2010, [the applicant's] team was en route to the 45th IA Brigade headquarters for a routine training mission. Their convoy was struck by an Improvised Explosive Device near the intersection of Rte Cherry and Trans Am. This location had been the site of numerous attacks during our rotation. Upon notification of the attack, the battalion Quick Reaction Force was dispatched to the site and supported [the applicant's] element. After conducting all required actions in investigating the attack, both elements return to JSS McHenry for de-brief and medical attention. Several members of [the applicant's] patrol received concussive injuries from the attack, requiring the administration of pain relief medicine and several days of bed rest. [The applicant] was one of these Soldiers. [The applicant] is a brave Soldier who received wounds in combat under my command. He deserves to be awarded the Purple Heart Award. d. A DA Form 4187 (Personnel Action), dated 20 May 2014, with DA Form 4187-1-R (Personnel Action Form Addendum), also dated 20 May 2014, which shows the applicant was recommended for the Purple Heart by his chain of command based on injuries he sustained on 21 March 2010 (concussion/TBI). e. A memorandum from Tripler Army Medical Center, Medical Correspondence, dated 12 July 2016, subject: Unsatisfactory Research, stating that a search of the applicant's medical records for the period January-July 2010 could not be located. f. A memorandum from HRC, Soldier Programs and Services Division, dated 13 January 2017, subject: Award of the Purple Heart for [applicant], denying the request for the Purple Heart pertaining to the applicant. HRC stated the following: The request for award of the Purple Heart to [applicant] for injuries received while deployed in support of Operation Iraqi Freedom is disapproved. After review of the information provided, the award of the Purple Heart for this particular event does not meet the statutory guidance in accordance with Army Regulation 600-8-22 (Military Awards), paragraph 2-8e. The lack of supporting medical documentation makes it impossible to connect an injury to the incident. 3. HRC also stated in their memorandum that if the applicant believed that their determination was unjust, he had the right to appeal to this Board. 4. A review of the applicant's available records failed to locate any medical documentation that shows he lost consciousness after the IED attack or that he was diagnosed with a TBI. //NOTHING FOLLOWS// ABCMR Record of Proceedings (cont) AR20160005706 2 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS ABCMR Record of Proceedings (cont) AR20170010123 7 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 2