BOARD DATE: 3 April 2018 DOCKET NUMBER: AR20170015783 BOARD VOTE: Mbr 1 Mbr 2 Mbr 3 : : : GRANT FULL RELIEF : : : GRANT PARTIAL RELIEF : : : GRANT FORMAL HEARING : X :X :X DENY APPLICATION 2 Enclosures 1. Board Determination/Recommendation 2. Evidence and Consideration BOARD DATE: 3 April 2018 DOCKET NUMBER: AR20170015783 THE BOARD CONSIDERED THE FOLLOWING EVIDENCE: 1. Application for correction of military records (with supporting documents provided, if any). 2. Military Personnel Records and advisory opinions (if any). THE APPLICANT'S REQUEST, STATEMENT, AND EVIDENCE: 1. The applicant requests award of the Purple Heart and a personal hearing before the Board. 2. The applicant states his Purple Heart request was denied by U.S. Army Human Resources Command (HRC). He is asking to have his request reviewed again. a. According to HRC's denial memorandum, there was a "lack of supporting medical documentation at or near the date of enemy action reflecting a diagnosis or indication of a qualifying injury that makes it impossible to connect an injury to the incident." b. He has his medical documents from the day of the incident, which show his injury and treatment. He has documentation of treatment from the day after as well. He has supporting documentation that shows he was injured in combat by an enemy placed mine. His request was reviewed and endorsed by a lieutenant colonel (LTC) who was the command nurse and his chain of command. 3. The applicant provides: * Temporary Change of Station (TCS) orders, dated 3 December 2004 * DA Form 1156 (Casualty Feeder Report), dated 6 August 2005 * Standard Form (SF) 600 (Chronological Record of Medical Care), dated 6 August 2005 * DD Form 689 (Individual Sick Call Slip), dated 7 August 2005 * emergency care and treatment notes, dated 7 August 2005 * SF 600, dated 7 August 2005 * Joint Theater Trauma Record * DA Form 2823 (Sworn Statement), dated 9 August 2005 * DA Form 1155 (Witness Statement on Individual), dated 11 August 2005 * DA Form 2173 (Statement of Medical Examination and Duty Status), dated 23 August 2005 * DD Form 2697 (Report of Medical Assessment), dated 28 November 2005 * SF 600, dated 30 November 2005 * DD Form 220 (Active Duty Report), dated 30 November 2005 * witness statements, March thru October 2016 * Enlisted Record Brief (ERB) * Narrative statement, 23 February 2017 * DA Form 4187 (Personnel Action), dated 4 March 2017 * Memorandum For Record (MFR), dated 4 June 2017 * HRC notification of denial, dated 20 July 2017 CONSIDERATION OF EVIDENCE: 1. Title 10, U.S. Code, section 1552(b), provides that applications for correction of military records must be filed within 3 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 3-year statute of limitations if the ABCMR determines it would be in the interest of justice to do so. While it appears the applicant did not file within the time frame provided in the statute of limitations, the ABCMR has elected to conduct a substantive review of this case and, only to the extent relief, if any, is granted, has determined it is in the interest of justice to excuse the applicant's failure to timely file. In all other respects, there are insufficient bases to waive the statute of limitations for timely filing. 2. The applicant enlisted in the Regular Army on 25 August 1994. He was released from active duty on 22 August 1997 and was assigned to the 960th Quartermaster Company, a troop program unit of the U.S. Army Reserve (USAR). 3. The applicant deployed in support of Operation Iraqi Freedom (OIF) from on or about 15 December 2004 through on or about 25 November 2005. 4. An automated SF 600 shows the applicant was seen by a medical official on 7 August 2005 after reporting muscle aches, pain in his lower back and upper arm, and lacerations to his right hand resulting from an IED explosion on 6 August 2005. The medical official noted his injuries under a picture diagram: * Muscle aches * Pain – lower back * Pain – left upper arm/back * Laceration – right hand, front and back 5. A DA Form 2173, dated 23 August 2005, shows the applicant was seen for a superficial laceration with contusion of his right hand and right leg after the vehicle he was in was hit by an improvised explosive device (IED), ejecting him from the vehicle on 6 August 2005. The incident was determined to be "In The Line of Duty." 6. A DA Form 220, dated 30 November 2005, shows the applicant completed this period of active service and was demobilized on 6 December 2005. The form also shows he was awarded the following: * Army Commendation Medal * National Defense Service Medal * Iraqi Campaign Medal * Global War on Terrorism Service Medal * Armed Forces Reserve Medal with "M" Device * Overseas Service Ribbon The form does not show he was awarded the Purple Heart during the deployment. 7. The applicant's record is void of evidence that shows he was recommended, denied, or approved for award of the Purple Heart while deployed to OIF. 8. The applicant provides: a. A DA Form 1156, dated 6 August 2005, which shows the applicant was reported wounded or injured in action by a sergeant (SGT). The form has a block requiring the signature of his commanding officer or a medical officer; however, it is not signed. b. An SF 600 that shows the applicant was seen at a troop medical clinic; he reported body soreness and a minor laceration on his hand resulting from a land mine strike. c. A DD Form 689, dated 7 August 2005, which shows the applicant requested to see a medical officer due to soreness in his lower back, left elbow, tail bone, left shoulder, and cuts to the right hand and left leg. d. An emergency care and treatment form, dated 7 August 2005, which shows he sought treatment from a medical official reporting his chief complaint as pain to his lower back, elbow and shoulder. The medical official noted the applicant was being seen as a follow-up to a land mine strike that occurred within the last 24 hours. He reported a 5 out 10 level of soreness to his lower back, elbow, and hip. He was prescribed Tylenol as treatment. e. A Joint Theater Trauma Nursing Record that shows a picture indicating the applicant was injured on his right hand and right leg, back, and left elbow. He was diagnosed with lumbar strain, contusions, and lacerations, and was further returned to duty. f. A DA Form 2823 in which the applicant provided a sworn statement on his account of the IED incident on 6 August 2005. He stated he was thrown from the vehicle after the explosion, suffering cuts to his right hand and fingers, lower back pain, a bruised elbow and tailbone. He further stated he was taken to a medical clinic where he was evaluated and then released. g. A DA Form 1156, dated 11 August 2005, which shows a member of the applicant's unit witnessed he was involved in a landmine explosion on 6 August 2005. The witness stated he was thrown from the vehicle upon contact and received bruising to his left should, elbow, lower back, tailbone, and lacerations to his hands. Following the attack, he was driven to a combat support hospital (CSH). h. A DA Form 2697, dated 28 November 2005, that shows the applicant filled in a questionnaire in which he noted he hurt his left shoulder, cut his right hand and right leg, and had hip and back pain. i. Three witness statements completed in 2016, which show members of his unit witnessed he was injured after the IED blast on 6 August 2005. j. His self-authored narrative of the incident that was submitted to HRC for award of the Purple Heart. The applicant also included a DA Form 4187 that was endorsed by the first general officer in his chain of command, and a letter from his command's nurse recommending approval. k. HRC notified the applicant on 20 July 2017 that his request for award of the Purple Heart was disapproved. He was informed that after a thorough review of the information he provided, the award of the Purple Heart for this event (6 August 2005) does not meet the statutory guidance outlined in Army Regulation 600-8-22 (Military Awards), paragraph 2-8e. The lack of supporting medical documentation at or near the date of enemy action reflecting a diagnosis or indication of a qualifying injury makes it impossible to connect an injury to the incident. He was further informed of his right to appeal with through the ABCMR. REFERENCES: 1. Army Regulation 15-185 (ABCMR) states ABCMR members will review all applications that are properly before them to determine the existence of an error or injustice; direct or recommend changes in military records to correct the error or injustice, if persuaded that material error or injustice exists and that sufficient evidence exists on the record. The ABCMR will decide cases on the evidence of record. It is not an investigative body. The ABCMR may, in its discretion, hold a hearing. Applicants do not have a right to a hearing before the ABCMR. The Director or the ABCMR may grant a formal hearing whenever justice requires. 2. Army Regulation 600-8-22 states 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. When contemplating an award of the Purple Heart the key issue 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 sole justification for award. b. 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 c. Examples of injuries or wounds which clearly do not justify award of the Purple are as follows: * Abrasions and lacerations (unless of a severity to be incapacitating) * Bruises (unless caused by direct impact of the enemy weapon and severe enough to require treatment by a medical officer) * Soft tissues injuries (for example, ligament, tendon, or muscle strains, sprains, and so forth) d. It is not intended that such a strict interpretation of the requirement for the wound or injury to be caused by direct result of hostile action be taken that it would preclude the award being made to deserving personnel. Commanders must also take into consideration the circumstances surrounding an injury, even if it appears to meet the criteria. e. Any member of the Army who believes that they are eligible for the Purple Heart but, through unusual circumstances no award was made, may submit an application through the member's chain of command to HRC. The application will include a DA form 4187, current chain of command endorsement through the first general officer, deployment orders, ERB, a narrative describing the qualifying incident, at least two individual sworn statements (not from the individual), a casualty report, and SF 600. DISCUSSION: 1. The applicant requests award of the Purple Heart. He contends he received injuries resulted from an enemy mine explosion on 6 August 2005 while deployed in support of OIF. 2. The applicant deployed in support of OIF from on or about 15 December 2004 through on or about 25 November 2005. 3. An automated SF 600 shows the applicant was seen by a medical official on 7 August 2005 and reported he injured his lower back, elbow and right hand by an IED on 6 August 2005. The medical official recorded his injuries in his medical record. 4. The applicant was not awarded the Purple Heart while deployed in support of OIF. 5. The applicant submitted a request for the Purple Heart approximately 12 years after the incident through his current chain of command, who endorsed his request and recommended approval to HRC. HRC disapproved his request for the Purple Heart on 20 July 2017 stating the lack of supporting medical documentation at or near the date of enemy action reflecting a diagnosis or indication of a qualifying injury makes it impossible to connect an injury to the incident. 6. The applicant provided documents and witness statements that shows he was reported injured by hostile forces on 6 August 2005. He also provided medical records that shows he received lacerations, contusions, and soreness resulting from the 6 August 2005 IED blast, he received Tylenol, and was returned to duty. 7. The governing regulation provides 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. 8. The applicant's evidence provided shows he had wounds and was treated by medical personnel. In addition, his wounds and treatment were made a matter of his official record. 9. What is challenging in the applicant's case is the determination of whether or not his injuries required treatment by medical personnel. Witnesses to the incident provided statements in 2016 (11 years after the fact) asserting he was evaluated after the IED blast and further referred to seek medical attention. 10. The governing regulation provides examples of injuries or wounds which clearly do not justify award of the Purple Heart as follows: * Abrasions and lacerations (unless of a severity to be incapacitating) * Bruises (unless caused by direct impact of the enemy weapon and severe enough to require treatment by a medical officer) * Soft tissues injuries (for example, ligament, tendon, or muscle strains, sprains, and so forth) 11. The applicant's request for a personal appearance hearing was carefully considered. By regulation, an applicant is not entitled to a hearing before the ABCMR. Hearings may be authorized by a panel of the ABCMR or by the Director of the ABCMR. In this case, the evidence of record and independent evidence provided by the applicant are sufficient to render a fair and equitable decision at this time. BOARD DATE: 3 April 2018 DOCKET NUMBER: AR20170015783 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. //NOTHING FOLLOWS// ABCMR Record of Proceedings (cont) AR20170015783 2 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS ABCMR Record of Proceedings (cont) AR20170015783 2 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 2