ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS IN THE CASE OF: BOARD DATE: 18 January 2019 DOCKET NUMBER: AR20170012940 APPLICANT REQUESTS: Award of the Purple Heart. APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: * DD Form 149 (Application for Correction of Military Record) * Memorandum, from the U.S. Army Human Resource Command (HRC), dated 26 September 2016 * Purple Heart Checklist * DA Form 4187 (Personnel Action), dated 13 January 2016 * DD Form 214 (Certificate of Release or Discharge from Active Duty) and DD Forms 214C (Continuation), dated 12 July 2011 * DD Form 214, dated 23 October 2016 and DD Form 214C, dated 22 September 2016 * DD Form 215 (Correction to DD Form 214) * Orders Numbers 159-091, 190-0080, MC-225-0187 * Memorandum for Record, dated 23 September 2015 * DA Forms 3349 (Physical Profile), dated 26 June 2014 and 15 January 2016 * Memorandum for Record, dated 27 May 2015 * DA Form 2173 (Statement of Medical Examination and Duty Status) * Medical Records, dated between 2011 and 2016, 28 pages * DA Form 199 (Physical Evaluation Board (PEB) Proceedings) * Enlisted Record Brief * Two Sworn Statements, dated 2014 * Daily Staff Journal or Duty Officer’s Log * 1 Photograph of the blast site, trigger point, and blast hole * 6 Photographs of heavy equipment * Department of Veterans Affairs (VA) documents and rating decision, 26 pages * Four Audiograms, dated between 1991 and 2015 * Army Regulation (AR) 600-8-22 (Military Awards), page 23 FACTS: 1. The applicant states he was injured during Operation Enduring Freedom. His appeal for the Purple Heart was considered and denied [by HRC]. The denial letter appears to have been based on lower back pain. He has provided a VA rating decision to support lower back pain and that he sustained a traumatic brain injury (TBI). He provided a DA Form 199 showing back surgery was required, due to the injury he sustained on 11 June 2011, as a result of an improvised explosive device (IED) blast. Based on AR 600-8-22, paragraph 2-8g(6), mild TBI justifies award of the Purple Heart. 2. Review of the applicant's records shows: a. He served honorably in an active duty status from 16 November 1989 to 14 December 1992, including service in Southwest Asia from January to April 1991. b. He enlisted in the Army National Guard on 20 December 1997 and he entered active duty and served in Iraq from 15 April 2003 through 4 March 2004. c. He entered active duty again on 6 July 2010 and served in Afghanistan from 20 August 2010 to 3 July 2011. He was honorably released from active duty on 12 July 2011. His DD Form 214 for this period of active duty does not include the Purple Heart as an authorized award. d. He again entered active duty on 13 July 2011. e. A PEB convened on 9 June 2016 and found him physically unfit. The PEB: (1) Rated his post-traumatic stress disorder (PTSD) at 70 percent (%) and indicated that he deployed to Afghanistan from August 2010 to July 2011. He was deployed to Iraq from April 2003 to March 2004. He has been awarded a Combat Action Badge. Behavioral health attributes his symptoms to the experience of combat stressors, specifically, being engaged with an IED and direct fire. (2) Rated his degenerative disc disease of the lumbar spine at 20%, and indicated that the applicant had reported that his vehicle was hit by an IED while deployed in June 2011. He deployed to Afghanistan from August 2010 to July of 2011 per his Enlisted Record Brief. (3) Recommended a combined rating of 80%. His disposition was placement on the temporary disability retired list (TDRL) with reexamination during March 2017. f. He retired on 23 October 2016 and placed on the TDRL on 24 October 2016. His DD Form 214 for this period of active duty does not include the Purple Heart as an authorized award. 3. The applicant provides: a. DA Form 2173, dated 14 June 2011, showing while in Ghanzi, Afghanistan, he was injured on 11 June 2011, due to exposure to an IED explosion which resulted in low back pain. The injury was received in the line of duty. b. Memorandum from HRC showing his request for award of the Purple Heart for injuries he received while deployed in support of Operation Enduring Freedom was disapproved. He was advised medical documentation reflects he was seen for lower back pain. Unfortunately soft tissue injuries (muscle strains) do not qualify for award of the Purple Heart. c. DA Form 4187 showing his Reserve unit (122nd Engineer Battalion, 59th Troop Command), recommended approval of a request for the applicant’s award of the Purple Heart. This document further shows the: (1) Date of incident: 11 June 2011. (2) Location of incident: GHZ (Ghanzi HWY 1). (3) Summary of events: Route Clearance Platoon (RCP) 2 was conducting a route clearance mission with 515th Engineer Company (Stalking Horse) on Hwy 1 outside of the gate of Ghanzi: * he was in the lead mine roller (M-21) when it was struck by an IED which had been placed in a culvert right before the gates of Ghanzi * the blast disabled the vehicle requiring it to be towed to nearby, “COP Carwile” * he was riding the back of VIC M2, sitting in the GYRO’s seat * the vehicle was struck under the front end sending the vehicle upward of 10 feet before resting in the blast hole * he was experiencing lower and right side pain * he was not given a MACE (Military Acute Concussion Evaluation) test because the medic from 515th did not have his base lines d. PEB showing a board convened on 9 June 2016 and found him physically unfit and recommended a combined rating of 80% (PTSD at 70% and degenerative disc disease of the lumbar spine at 20%). His disposition was placement on the TDRL. e. Numerous medical documents showing he complained of lower back pain: * he was treated at the pain management center with oral medication in 2016 * 21 January 2016, he underwent a lumbar transformational epidural steroid injection, for lumbar spondylosis * an operative-procedure report shows he was diagnosed with left L5-S1 disc herniation and on 4 April 2016 and he underwent Left L5-S1 microdiskectomy with removal of small fragment f. Temporary physical profile, dated 15 January 2016, showing he had two numerical designations of "3" signifying he had medical conditions that required significant limitations and a referral to a medical evaluation board. g. Sworn statements from two individuals who witnessed the IED blast and acknowledged he complained of discomfort and pain in his lower back after the blast. h. VA Rating decision showing as of 24 October 2016, he was granted an overall combined rating of 90%, which included the following ratings: Percentage Issue/Contention * 10% Sphenoid Sinusitis * 10% TBI (also claimed as memory loss) * 10% Gastroesophageal Reflux disease with hernia hiatal (claimed as Gerd) * 10% Tinnitus * 70% Posttraumatic Stress Disorder (also claimed as anxiety and insomnia) * 20% Cervical radiculopathy left upper extremity (Non- Dominant) * 10% Lumbosacral Radiculopathy Left Lower Extremity (also claimed a sacral thoracic radiculopathy) * 20% Degenerative Disc Disease of the Lumbar Spine with myofascial pain i. One photograph of the blast site, trigger point, and blast hole, and 6 photographs of the heavy equipment in which the applicant was riding when it hit an IED. 7. The applicant's service record, is void of orders, a certificate, or a citation showing he was awarded the Purple Heart. 8. 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. Additionally, when based on a TBI, the regulation stipulates the TBI or concussion must have been severe enough to cause a 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. AR 600-8-22, gives 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 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 BOARD DISCUSSION: 1. After conducting a de novo review of all available documentation as well as the additional evidence provided by the applicant, the Board found insufficient cause to overturn the 26 September 2016 HRC decision disapproving the applicant’s request for award of the Purple Heart. 2. A 22 November 2011 Magnetic Resonance Imaging report of the applicant’s spine found degenerative disc disease at the L5-S1 level with 3mm central/left paracentral disc protrusion and annular fissure. A further radiologic examination report of the spine dated 12 January 2016 found no fracture or dislocation. As noted in AR 600-8-22 soft tissue injuries do not justify award of the Purple Heart. 3. There is no evidence of loss of consciousness or restriction from duty following the explosive incident. The Applicant’s 09 July 2011 DA Form 2173, Statement of Medical Examination and Duty Status, notes back pain. Sworn statements included in the case file note the applicant experienced back discomfort. The applicant continued the mission with his unit after the incident and was not evacuated. 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. SIGNATURE: ___________X________________ Chairperson 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. ADMINISTRATIVE NOTES: Not Applicable REFERENCES: AR 600-8-22, 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 2. AR 15-185 (ABCMR) prescribes the policies and procedures for correction of military records by the Secretary of the Army, acting through the ABCMR. Paragraph 2-9 states the ABCMR begins its consideration of each case with the presumption of administrative regularity; the applicant has the burden of proving an error or injustice by a preponderance of the evidence. ABCMR Record of Proceedings (cont) AR20170012940 5 1