ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS BOARD DATE: 9 January 2020 DOCKET NUMBER: AR20170011194 APPLICANT REQUESTS: award of the Purple Heart. APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: * DD Form 149 (Application for Correction of Military Record), dated 22 April 2017 * DA Form 2173 (Statement of Medical Examination and Duty Status), dated 29 October 2006 * four DA Forms 2823 (Sworn Statement) * Memorandum, 217th Transportation Company Heavy Equipment Transportation, dated 30 November 2006, subject: [Applicant] * Standard Form 600 (Health Record - Chronological Record of Medical Care), dated 22 January 2007 * Memorandum, 217th Transportation Company Heavy Equipment, dated 9 February 2013, subject: Award of the Purple Heart * Memorandum, 348th Transportation Battalion Terminal, dated 27 August 2013, subject: Award of Purple Heart * Memorandum, 217th Transportation Company Combat Heavy Equipment Transportation , dated 6 October 2014, subject: Award of the Purple Heart * DA Form 4187 (Personnel Action), dated 18 April 2015 * Memorandum, U.S. Army Human Resources Command, dated 11 May 2016 subject: Award of the Purple Heart for [Applicant] * Letter, U.S. Army Human Resources Command, dated 20 July 2016 * DD Form 214 (Certificate of Release or Discharge from Active Duty) 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 (ABCMR) 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: a. He wants his Purple Heart approved and awarded. b. It was reported that his medical documentation reflecting a diagnosis of traumatic brain injury (TBI) was not located or provided. As such, it could not conclusively state his injuries were caused directly by enemy action. The TBI diagnosis should be corrected because he has documentation that proves he is getting disability compensation for his injuries. 3. On 20 March 1987, the applicant enlisted in the U.S. Army Reserve. 4. On 14 May 2006, he was ordered to active duty in support of Iraqi Freedom. 5. Camp Atterbury Orders 235-546, dated 23 August 2006, assigned the applicant and his unit to the 217th Transportation Company, Combat Heavy Equipment Transportation with further duty to Kuwait/Iraq in support of Operation Iraqi Freedom on 28 August 2006 for a period not to exceed 545 days. 6. He provided copies of: a. A DA Form 2173, dated 29 October 2006, that shows in item 15 (Details of Accident or History of Disease), he received treatment as an outpatient at Camp Arifjan Troop Medical Clinic for hearing loss, vertigo, and headache. Item 15 (Details of Accident or History of Disease) of his DA Form 2173 shows that between September and October 2006, the applicant was on a mission in which his unit was hit by improvised explosive devices (IEDs) and he began to have hearing loss, headaches, and vertigo shortly after the third IED attack. b. A DA Form 2823, dated 21 October 2006, from Staff Sergeant R, who stated he was the Gun Truck Commander of a M1114, an armored high mobility multi-purpose wheeled vehicle (HMMWV), in which the applicant was the driver. He confirmed he, the applicant, and other Soldiers were involved in an IED explosion on 9 October 2006 at approximately 2310 hours. The IED blast entered their vehicle through the gunner's hatch and dazed all of them. He further stated, "All members of my crew were affected by that initial blast and have been affected by several other similar IED's and rocket/mortar attacks since." c. A self-authored DA Forms 2823, dated 29 October 2006, in which he stated: (1) On the evening of 9 October 2006 at approximately 2310 hours, he experienced an IED attack on the Military Supply Route (MSR) Tampa near the Logistics Support Activity (LSA) Anaconda. (2) He was exposed to black smoke which consumed the area and the explosion deteriorated his hearing, causing further damage to his head. (3) The pain was so intense he had to cover his ears to continue the mission. His hearing was like an on and off switch for the next couple of hours and impeded his concentration. d. Two DA Forms 2823, dated 29 October 2006, from Specialist A and Sergeant V, who both stated they were involved in an IED attack on MSR Tampa, Iraq, on 9 October 2006 at approximately 2310 hours. e. A memorandum from the Commander, 217th Transportation Company (Heavy Equipment Transportation), dated 30 November 2006, that shows the applicant had been suffering from symptoms of dizziness and lightheadedness and he took prescription medication, as needed, to prevent the effects of vertigo. His physician's assistant that gave him his prognosis stated his symptoms were "Not Battle Related." His commander noted the applicant had never had any symptoms of vertigo or hearing loss until the recent IED attacks on his convoy during the months of September 2006 to October 2006 and that supporting documentation could be furnished to validate these claims. His commander further stated before mobilization and deployment, the applicant passed several complete physical health examinations, including an auditory examination in 2005. He advised the applicant to seek a second professional medical opinion. f. A Standard Form 600, dated 22 January 2007, that shows his prescribed medications and listed his medical conditions as: * spinning dizziness (vertigo) * hearing loss * tinnitus * headache syndromes * Meniere's disease 7. On 23 August 2008, the applicant was honorably released from active duty. His DD Form 214 shows in: a. Items 8 (Last Duty Assignment and Major Command) - 217th Transportation Company (Combat Heavy Equipment Transportation), b. Item 13 (Decorations, Medals, Badges, Citations and Campaign Ribbons Awarded or Authorized) - * Army Commendation Medal (2nd Award) * Army Good Conduct Medal * National Defense Service Medal with one bronze service star * Global War on Terrorism Service Medal * Iraq Campaign Medal Campaign with one bronze service star * Army Service Ribbon * Overseas Service Ribbon * Army Reserve Component Overseas Training Ribbon * Armed Forces Reserve Medal with "M" Device * Combat Action Badge * Driver Mechanic Badge with Driver-W Bar c. Item 19 (Remarks) - he was ordered to active duty in support of Operation Iraqi Freedom during the period 11 May 2006 to 24 August 2007 and 25 August 2007 to 23 August 2008 and he served in a designated imminent danger pay area, Kuwait/Iraq, during the period - 1 July 2006 to 3 May 2008. 8. The applicant provided copies of: a. A memorandum from the Commander, 217th Transportation Company (Heavy Equipment Transportation), dated 9 February 2013, in which he recommended the applicant for award of the Purple Heart for TBI injuries sustained during his deployment beginning 25 August 2007 which resulted in hearing loss, migraine chronic headaches, and vertigo which continued to date. b. A memorandum from the Commander, 348th Transportation Battalion, dated 27 August 2013, wherein he recommended the applicant for award of the Purple Heart. c. A memorandum from Commander, 217th Transportation Company (Combat Heavy Equipment Transportation), dated 6 October 2014, wherein she recommended the applicant for award of the Purple Heart for acquired TBI injuries sustained during his deployment beginning 25 August 2007 and resulted in his hearing loss, migraine chronic headaches, and vertigo which continued to date. 9. His records contained a DA Form 2173, dated 24 October 2014, which shows, "While deployed to Iraq, SM (Subject Matter) participated in several convoys, three of which encountered an IED. SM also exposed to three episodes of mortar fire. SM experienced hearing loss, vertigo, mood changes, and anxiety in the months following." The nature of his injury was listed as post-traumatic stress disorder and it was also noted that his injuries incurred in the line of duty. 10. The applicant provided the following: a. A DA Form 4187, dated 18 April 2015, that shows the applicant was recommended for award of the Purple Heart for wounds/injuries received in action caused directly by the enemy on 9 October 2006 at MSR Tampa, Iraq. b. A memorandum from the Chief, Soldier Programs and Services Division, U.S. Army Human Resources Command, dated 11 May 2016, which shows the approval authority denied the request for award of the Purple Heart to the applicant due to not meeting the minimum requirement for approval. The applicant's submitted medical documentation and his record in the Armed Forces Longitudinal Health Technical Application did not show a diagnosis for TBI. The applicant was advised to appeal to the ABCMR. c. A memorandum from the Chief, Awards and Decorations Branch, U.S. Army Human Resources Command, dated 20 July 2016, in response to a Congressional inquiry that shows evidence had not been provided, nor could they locate military documentation reflecting a diagnosis of TBI. As such, this office could not conclusively state his injuries were caused directly by enemy action. Appeal of this decision was directed to the attention of the ABCMR with supporting documentation. 11. The applicant's DA Form 199 (Informal Physical Evaluation Board (PEB) Proceedings), dated 3 October 2018, shows an Informal PEB found him physically unfit, recommended a 100-percent disability rating, and a permanent disability retirement. a. His conditions were listed as: * post-traumatic stress disorder with a 100 percent disability rating * chronic intermittent vertigo with a 10 percent disability rating * cervical spondylosis with a 0 percent disability rating b. On 12 October 2018, he concurred with the findings and recommendations of the PEB and declined a request for reconsideration of his ratings. 12. U.S. Army Physical Disability Agency Order D 290-59, dated 17 October 2018, shows he was permanently retired due to permanent physical disability rated at 100 percent effective 21 November 2018. His disability was 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 and incurred in the line of duty during a war period as defined by law. 13. The applicant's available medical evidence does not show he incurred a loss of consciousness or restriction from full duty due to persistent signs, symptoms, or clinical finding for an impaired brain function for a period greater than 48 hours from the time of the incurred IED blast on 9 October 2006. BOARD DISCUSSION: 1. After reviewing the application and all supporting documents, the Board found that relief is warranted. 2. The applicant experienced an IED explosion which according to the records caused him spinning dizziness (vertigo), hearing loss, tinnitus, headache syndromes, and Meniere's disease (an inner ear disorder that causes episodes of vertigo). He was prescribed medication for these symptoms. The records show that the applicant did not lose consciousness nor was he restricted from duty for 48 hours or more. The eligibility requirements for the Purple Heart according to Army Regulation 600-8-22 state that the following do not qualify for award of the Purple Heart - Hearing loss and tinnitus (for example, ringing in the ears). This rules out hearing loss, tinnitus, and Meniere's disease, an inner ear disorder that causes episodes of vertigo (spinning dizziness) as symptoms by themselves eligible for award of the Purple Heart. 3. The applicant's commander submitted requests for award of the Purple Heart to the applicant stating that he had sustained TBI injuries which resulted in hearing loss, migraine chronic headaches, and vertigo. The Chief, Soldier Programs and Services Division, U.S. Army Human Resources Command, denied the request finding no medical evidence of TBI. Further, Army Regulation 600-8-22 states 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 DOES NOT qualify for award of the Purple Heart. Additionally there is no record of a medical diagnoses of TBI for the applicant. Further, the applicant was retired through the Army Physical Disability Evaluation System which found his disabilities to be PTSD, chronic intermittent vertigo, and cervical spondylosis, but did not diagnose the applicant with TBI. 4. However, Army Regulation 600-8-22 states that concussion injuries caused as a result of enemy-generated explosions can qualify for award of the Purple Heart. Symptoms of a concussion include headache, ringing in the ears, and dizziness. The applicant's records confirm that he experienced these symptoms of a concussion injury caused by an enemy-generated explosion, an IED. Accordingly, the applicant should be awarded the Purple Heart. BOARD VOTE: Mbr 1 Mbr 2 Mbr 3 :ASE :MMB :TA GRANT FULL RELIEF : : : GRANT PARTIAL RELIEF : : : GRANT FORMAL HEARING : : : DENY APPLICATION BOARD DETERMINATION/RECOMMENDATION: The Board determined that the evidence presented was sufficient to warrant a recommendation for relief. As a result, the Board recommends that all Department of the Army records of the individual concerned be corrected by showing that the applicant was awarded the Purple Heart for a wounds received on 9 October 2006, and provide him the award medal and certificate. 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 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) prescribes Army policy, criteria, and administrative instructions concerning individual and unit military awards. a. The Purple Heart is awarded in the name of the President of the United States and, in accordance with 10 USC, section 1131, effective 19 May 1998, is limited to members of the Armed Forces of the United States who, while serving under competent authority in any capacity with one of the U.S. Armed Services after 5 April 1917, have been wounded, were killed, or who have died or may hereafter die of wounds received under any of the following circumstances: (1) In any action against an enemy of the United States. (2) In any action with an opposing armed force of a foreign country in which the Armed Forces of the United States are or have been engaged. (3) While serving with friendly foreign forces engaged in an armed conflict against an opposing armed force in which the United States is not a belligerent party. (4) The result of an act of any such enemy of opposing Armed Forces. (5) As the result of an act of any hostile foreign force. b. Examples of enemy-related injuries which clearly justify award of the Purple Heart are as follows: (1) Injury caused by enemy bullet, shrapnel, or other projectile created by enemy action. (2) Injury caused by enemy-placed trap or mine. (3) Injury caused by enemy-released chemical, biological, or nuclear agent. (4) Injury caused by vehicle or aircraft accident resulting from enemy fire. (5) Concussion injuries caused as a result of enemy-generated explosions. (6) 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. c. Examples of injuries or wounds which clearly do not justify award of the Purple Heart are as follows: (1) Frostbite (excluding severe frostbite requiring hospitalization from 7 December 1941 to 22 August 1951). (2) Trench foot or immersion foot. (3) Heat stroke. (4) Food poisoning not caused by enemy agents. (5) Chemical, biological, or nuclear agents not released by the enemy. (6) Battle fatigue. (7) Disease not directly caused by enemy agents. (8) Accidents, to include explosive, aircraft, vehicular, and other accidental wounding not related to or caused by enemy action. (9) Self-inflicted wounds, except when in the heat of battle and not involving gross negligence. (10) Post-traumatic stress disorder. (11) Airborne (for example, parachute/jump) injuries not caused by enemy action. (12) Hearing loss and tinnitus (for example, ringing in the ears). (13) 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. (14) Abrasions and lacerations (unless of a severity to be incapacitating). (15) Bruises (unless caused by direct impact of the enemy weapon and severe enough to require treatment by a medical officer). (16) Soft tissue injuries (for example, ligament, tendon, or muscle strains, sprains, and so forth to include first degree burns.) // NOTHING FOLLOWS // d. When recommending and considering award of the Purple Heart for a mild traumatic brain injury or concussion, the chain of command will ensure the criteria is met, and that both diagnostic and treatment factors are present and documented in the Soldier's medical record by a medical officer. (1) 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 award of the Purple Heart: (a) Diagnosis of concussion or mild traumatic brain injury. (b) Any period of loss or a decreased level of consciousness. (c) Any loss of memory for events immediately before or after the injury. (d) 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, and so forth) that may or may not be transient. Intracranial lesion (positive computerized axial tomography or magnetic resonance imaging scan). (2) The following nonexclusive list provides examples of medical treatment for concussion that do meet the standard of treatment necessary for award of the Purple Heart: (a) Referral to neurologist or neuropsychologist to treat the injury. (b) Rehabilitation (such as occupational therapy, physical therapy, and so forth) to treat injury. (c) Restriction from full duty for a period of greater than 48 hours due to persistent signs, symptoms, or physical finding of impaired brain function. //NOTHING FOLLOWS// ABCMR Record of Proceedings (cont) AR20170011194 0 6 1