ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS IN THE CASE OF: BOARD DATE: 29 May 2019 DOCKET NUMBER: AR20170013349 APPLICANT REQUESTS: a reinstatement of his award of the Purple Heart. APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: * DD Form 149 (Application for Correction of Military Record) * Letter Through Counsel * Deployment Orders * Narrative of Incident * Casualty Feeder Card * Personnel Action for Combat Infantryman Badge (CIB) * Certificate of Award of Purple Heart * Permanent Order Number 090-002 * Memorandum Denying Purple Heart * Sworn Statements * Chronological Record of Medical Care * Emails * Personnel Action for CIB * Enlisted Record Brief * DD Form 214 (Certificate of Release or Discharge From Active Duty) FACTS: 1. The applicant, through counsel, states: a. After successfully negotiating a set of barriers, the applicant’s patrol traveled on the shoulder of a two lane, hardtop road. Without warning, a vehicle rapidly accelerated, traveled up to 10 feet off the road and hit three Soldiers including the applicant. The vehicle struck the right side of his body, breaking his foot and sending him flying. b. He earned the Purple Heart from wounds sustained while on deployment to Afghanistan in 2011. He originally received the award for wounds sustained in action on or about 31 March 2011. The Army later revoked the award in June 2011 stating that the injuries were not "combat or hostile related. c. The applicant appealed the Army's decision to revoke his Purple Heart to U.S. Army Human Resources Command (HRC). On or about 24 March 2016, HRC disapproved his request. d. We know from more recent history that "lone wolf' attacks are not uncommon but just as deadly as those organized by international terror groups. Don't let an administrative mistake or "headquarters hindsight" deny the applicant the military award that he is due. 2. The applicant provides: a. A self-authored narrative of the incident, that states that while the applicant was on dismounted patrol with three other Soldiers, he passed jersey barriers and was completely on the shoulder of a road when a vehicle approached his rear. The vehicle increased extremely rapidly and crashed into his right side, breaking his foot and sending him into the air. He was subsequently evacuated. b. A sworn statement from Specialist (SPC) X, states he was on with the applicant on a six man squad conducting a dismounted patrol in the district 10 of Kandahar City, while attached to an engineer platoon from 4th Infantry Division (ID). They were staged at the entry control point at Camp Nathan Smith. As the vehicle was coming toward me it seemed the vehicle was in a hurry because of the look he had when I saw him. SPC X stepped aside as to let him pass so as not to be struck by the vehicle. As SPC X saw the vehicle leave, he heard a loud scream of pain from the rear of the formation. SPC X turned, he saw one of the engineers was hit and lying on the ground. We all placed well aimed shots at the vehicle. As soon as the car fled SPC X felt it was too late and driver was gone, but the driver took a turn too sharply and flipped its vehicle on its rooftop. c. A sworn statement from SPC X, states the vehicle passed our rear security man, stepped on the gas, then cut into the formation. The vehicle first struck the applicant, then myself, and another Soldier after that. SPC X got up and recovered his weapon and began to pull security. A few seconds later, the front section of our formation engaged the hostile vehicle. When the nine line medivac was called up, first aid was given to the applicant, the other soldier, and myself. d. A sworn statement from SPC X, states they approached a part of the road that was too narrow to pass in the formation, so we had to go to a file formation. At the time SPC X heard a vehicle accelerate from the rear of the formation. SPC X heard a loud sound and turned around in time to see the three Soldiers behind as one got struck by the vehicle. The vehicle left the two lane road and traveled about 5 meters into the dirt shoulder to strike the Soldiers. It accelerated even more rapidly after colliding with the Soldier’s and attempted to flee the scene of the accident. e. A sworn statement from Staff Sergeant (SSG) X, states the formation was a staggered column, as they traveled on the right side of the road on the shoulder, they were roughly 300 meters from a jersey barrier. SSG X fired approximately 10-12 well aimed shots into the rear driver side of the vehicle as it tried to flee the scene. There were 3 or four other members of the lead element who fired as well. SSG X assessed who was injured and the applicant was one of the injured along with other Soldiers, a medavac was requested for those injured. f. A Chronological Record of Medical Care, that shows he was treated for a foot fracture on 31 March 2011 when he was hit on his right side by a vehicle during a patrol in Kandahar, Afghanistan. g. Emails detailing the applicant’s efforts to obtain the Purple Heart after the incident. 3. A review of the applicant’s service records shows: a. The applicant enlisted in the Regular Army on 13 November 2008. b. He served in Afghanistan from 9 November 2010 to 3 April 2011 and in Kuwait from 17 February 2013 to 6 November 2013. c. A Casualty Feeder Card from 31 March 2010 that lists the applicant as injured by the enemy during a hostile act. d. A DA Form 4187 (Personnel Action) dated 29 April 2010, was submitted recommending he be awarded the Combat Infantryman Badge. e. On 31 March 2011 Order Number 090-002 awarded the applicant the Purple Heart for wounds received as a result of hostile actions. f. On 20 June 2011, a memorandum for record from Lieutenant Colonel X, Director of CJ1, informed the applicant that upon further investigation and unit assessment, the injuries suffered as a result of the incident were found to not be combat or hostile related. Therefore, it did not meet the criteria for the award of the Purple Heart. g. On 24 March 2016, a memorandum for record from Colonel X, Chief of Soldier Programs and Services Division, stated that he concurred with the Chain of Command that the award of the Purple Heart for this particular event does not meet the statutory guidance in accordance with Army Regulation (AR) 600-8-22 (Military Awards) The applicant’s injuries were found to not be combat related and do not meet the criteria for award of the Purple Heart as outlined in AR 600-8-22, para 2-8b, as the investigation determined it was an accident. h. On 22 January 2017, he was honorably discharged from active duty under AR 635-40, chapter 4 with narrative reason for separation: Disability, Severance Pay, Non-Combat (Enhanced). His DD Form 214 (Certificate of Release or Discharge from Active Duty) shows he completed 8 years, 2 months, and 10 days of active service. It also shows he was awarded or authorized: * Afghanistan Campaign Medal with Campaign Star * Purple Heart * Army Commendation Medal * Army Achievement Medal * Army Good Conduct Medal * National Defense Service Medal * Global War on Terrorism Expeditionary Medal * Global War on Terrorism Service Medal * National Defense Service Medal * Non-Commissioned Officer Professional Development Ribbon * Army Service Ribbon * NATO Medal * Air Assault Badge 4. By regulation, 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. BOARD DISCUSSION: After review of the application and all evidence, the Board determined relief is warranted. The applicant’s contentions were carefully considered. The applicant was hit by a car while on patrol. His account and those of eyewitnesses detailed the collision as intentional; he was awarded the Purple Heart. The unit investigated the incident and determined the driver of the vehicle was not an enemy combatant, and the collision was an accident. The chain of command subsequently took action to have his Purple Heart revoked. The Board is not an investigative body, and did not have the report of investigation available for review. Based upon the preponderance of the evidence, the Board agreed the driver of the car may not have been a known enemy combatant meeting the criteria for an enemy attack; however, there are instances when local nationals take advantage of opportunities to attack U.S. Service personnel, which would qualify as a hostile attack. With that being said, the Board concluded he should be awarded the Purple Heart for injuries received on 31 March 2011. BOARD VOTE: Mbr 1 Mbr 2 Mbr 3 X X X GRANT FULL RELIEF : : : GRANT PARTIAL RELIEF : : : GRANT FORMAL HEARING : : : DENY APPLICATION BOARD DETERMINATION/RECOMMENDATION: The Board determined the evidence presented is 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 awarding him the Purple Heart for wounds received on 31 March 2011, and adding the award to his DD Form 214. 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. 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 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. 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 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. c. 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. 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. 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. 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. //NOTHING FOLLOWS// ABCMR Record of Proceedings (cont) AR20170013349 5 1