ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS IN THE CASE OF: BOARD DATE: 12 November 2019 DOCKET NUMBER: AR20170017733 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 31 October 2017 * Self-authored statement * DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge) for the period ending 17 December 2008 * NGB Form 22 (Report of Separation and Record of Service) for the period ending 26 November 2009 * Electronic mail - dated 18 April 2017 * Medical Opinion - dated 27 April 2017 * Letter - HRC response to Senator X___ of Indiana dated 20 October 2017 * Sworn Statements (5) * DA Form 2-1 (Personnel Qualification Record) 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 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 he was injured during his third improvised explosive device (IED) explosion and taken off missions due to failing his Military Acute Concussion Evaluation (MACE). He was hit with debris and rocks when the IED exploded. Taken off mission for hours, reevaluated and taken off mission completely. His self-authored statement states at the time he didn’t know he received a concussion. The applicant is unable to locate MACE exam, and states he has been exposed to three road side bombs. 3. His DD Form 214 states he was honorably released from active duty on 17 December 2008. He served in an imminent danger pay area, in support of Operation Iraqi Freedom, with service in Kuwait / Iraq for the period 13 March 2008 to 28 November 2008 (block 18). He was awarded the Combat Infantry Badge (block 13). His DD Form 214 does not show the Purple Heart. He was released from the Army National Guard on 26 November 2009. 4. Applicant provided email communication between Command Sergeant Major X___ and medical personnel dated 18 April 2017. The email states the only medical documentation located that mentioned the MACE results, have come from the applicant’s second blast. There is no documentation pertaining to a third or fourth blast in the theater medical record database, the active duty medical system or in the applicant’s medical file. A copy of the MACE was not provided. 5. The applicant provided a medical opinion dated 27 April 2017 that states it is likely that the claimed migraine headaches are due to or a result of the veteran’s diagnosed traumatic brain injury (TBI). 6. HRC responds to the applicant’s congressional representative, Honorable X___ on 20 October 2017, concerning the applicant’s desire to obtain a Purple Heart, stating they are unable to authorize issuance of the award. HRC letter states the applicant’s medical documentation specifically states he did not sustain a traumatic brain injury, loss of consciousness or concussion as a result of the improvised explosive device (IED) blast, which occurred on 2 August 2008. 7. Applicant provides the following self-authored and witness sworn statements: * Applicant states on 3 July 2008 (subscribed and sworn on 3 July 2008) he conducted a convoy , heard an explosion to his rear , there was no damage to vehicle, continued mission, stopped later checked on personnel and noted everyone was okay and continued mission. * Applicant states on 2 August 2008 (subscribed and sworn on 28 August 2008) while on convoy he heard a boom to the rear, saw dust and debris flying in the air, and continued his mission. Applicants witness X___ X___ states on 2 August 2008 an explosion went off in the right rear corner causing their vehicle to lift into the air. The witness states Specialist X___ was hit by several rocks. They were given MACE test and ordered to stay off mission. * Applicant provided additional sworn statements of the occurrence on 2 August 2008 (subscribed and sworn on 18 April 2017) stating while on convoy his vehicle was struck by IED, applicant states once the pressure of the IED hit it felt like someone kicked him in the chest. Debris hit his face and caused bleeding on his arm, he stated he felt dazed and confused. He states once he regained consciousness they continued mission. Once the mission was completed he was evaluated for the MACE test. Applicant stated he received 48 hours off mission, reevaluated, received additional 48 hours and then returned to full duty. * Applicant’s witness X___ states, on 28 August 2008 (subscribed and sworn on 11 April 2017) the explosion occurred on the passenger side rear of the truck, showering it with debris. Witness states upon return to base, they were checked by company medics, and taken off of mission for 48 hours. 8. The available service records do not contain evidence indicating he was wounded as a result of hostile action. 9. Army Regulation 600-8-22 (Military Awards) 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, not merely examination, by a medical officer, and the medical treatment must have been made a matter of official record. 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. Examples of enemy-related injuries which clearly justify award of the PH are as follows: * Injury caused by enemy-placed trap or mine * Injury caused by vehicle or aircraft accident resulting from enemy fire * Concussion injuries caused as a result of enemy-generated explosions * 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 Combat theater and unit command policies mandating rest periods or “down time” following incidents do not constitute qualifying treatment for concussion injuries. To qualify as medical treatment, this rest period must have been directed by a medical officer or medical professional for the individual after diagnosis of an injury. BOARD DISCUSSION: After reviewing the application and all supporting documents, the Board found the relief was not warranted. The Board did not see where he was given limited military duties for longer than 48 hours by a medical doctor. The applicant stated he was removed from action, but there is a lack of corroborating evidence to the applicant’s statement. Per the regulatory guidance on awarding the Purple Heart, the applicant must provide or have in his service records substantiating evidence to verify that he was injured, 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. In events involving TBI and other similar injuries, the applicant’s record must show that the 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. After reviewing the application and all supporting documents, the Board found insufficient medical evidence to meet the regulatory standard for the Purple Heart and thus recommended denying the request. 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 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 Army Board for Correction of Military Records (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) 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, not merely examination, by a medical officer, and the medical treatment must have been made a matter of official record. 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. Examples of enemy-related injuries which clearly justify award of the PH are as follows: * Injury caused by enemy-placed trap or mine * Injury caused by vehicle or aircraft accident resulting from enemy fire * Concussion injuries caused as a result of enemy-generated explosions * 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 Combat theater and unit command policies mandating rest periods or “down time” following incidents do not constitute qualifying treatment for concussion injuries. To qualify as medical treatment, this rest period must have been directed by a medical officer or medical professional for the individual after diagnosis of an injury. //NOTHING FOLLOWS// ABCMR Record of Proceedings (cont) AR20170013165 6 1