ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS IN THE CASE OF: BOARD DATE: 23 September 2019 DOCKET NUMBER: AR20170017855 APPLICANT REQUESTS: the addition of medical documents into the Armed Forces Health Longitudinal Technical Application (AHLTA) for future consideration of a Purple Heart (PH) Award. APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: * DD Form 149 (Application for Correction of Military Record) * Denial Letter from Human Resources Command (HRC) * Medical Documentation 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 that he would like his medical documents added to the AHLTA for future consideration of a PH Award. He previously submitted his packet for consideration of the PH award to HRC. He sent in all statements and medical documents from theater and he was denied on 12 September 2016. The letter states that there are no supporting documents in AHLTA. He feels that the packet that he sent was very comprehensive with sworn statements and medical documents. His wounded warrior advocate has been assisting and was awaiting additional instructions prior to this request to have his documents uploaded into AHLTA. His original retirement was Temporary Disability Lists (TDRL), however he has been on the permanent Disability Retirement List (PDRL) since 2 February 2012. 3. The applicant provides copies of various medical documents and an HRC denial letter for PH award, dated 12 September 2016 that states after careful consideration and consultation with the United States Army Human Resource Command Surgeon’s Office, his request for an award of the PH for injuries received while deployed in support of Operation Enduring Freedom is disapproved. After review of the information provided, the award of the PH for this particular event does not meet the statutory guidance in accordance with Army Regulation (AR) 600- 8-22 (Military Awards), paragraph 2-Bh(13). There are no supporting medical records in AHLTA that support a diagnosis of Traumatic Brain Injury (TBI) at or near the time of the incident. The lack of supporting medical documentation in AHLTA combined with the submitted documentation makes it impossible to connect an injury to the incident. He also provided copies of medical diagnosis for post-traumatic stress Disorder (PTSD) to include his MEB (Medical Evaluation Board) and PEB (Physical Evaluation Board) documentation and a letter from his wounded warrior advocate that references his disability rating of 70%. 4. A review of the applicant’s service record shows the following: a. After an exhaustive search, no Army National Guard (ARNG) enlistment documents could be found in the applicant’s records for the Board to review. However, his DD 214 period ending 2 December 1993 reflects that he was discharged from the United States Marines. b. DD Form 214 shows that the applicant entered active duty in the ARNG on 30 April 1999 and was released from active duty training on 18 June 1999 for completion of required active service for uncharacterized character of service. c. DD Form 214 shows that the applicant entered active duty in the ARNG on 4 June 2000 and was released from active duty on 24 July 2000 to accept commission or warrant in the Army. d. NGB (National Guard Bureau) Form 337 (Oath of Office), dated 25 July 2000, shows the applicant was sworn in as a warrant officer/W01. e. DA Form 71 (Oath of Office), dated 25 July 2002, shows the applicant was sworn in as reserve warrant officer/W02. f. His DD Form 214 shows that the applicant entered active duty in the ARNG on 17 November 2002 and was released from active duty on 13 March 2003. g. Orders 350-352, dated 16 December 2005, order the applicant to active duty in support of Operation Enduring Freedom effective 5 January 2006 for 450 days. h. Orders 052-518, dated 21 February 2006, assigns the applicant’s unit to Task Force Phoenix Afghanistan in support of Operation Enduring Freedom effective 23 February 2006. i. Emergency Care and Treatment Form, dated 3 January 2007 provided by the applicant, shows that the applicant was treated for going through a window and injured his jaw during his participation in a base defensive combat mission on 26 December 2006. j. Emergency Care and Treatment Form, dated 11 January 2007 provided by the applicant, shows the applicant was treated for pain following an injury that occurred on 26 December 2006 and on 3 January 2007 and he was placed on flexural. k. DD Form 2823, dated 28 January 2007, the applicant attested to the actions performed by him during the engagements of 28 March 2006 to 29 March 2006. l. DA Form 2173 (Statement of Medical Examination and Duty Status), dated 6 February 2007 provided by the applicant, states that the applicant injured his jaw while on a combat mission. m. DA Form 638 (Recommendation for Award), dated 9 February 2007, shows that the applicant was awarded a Bronze Star Service (BSM) Medal with Valor for injuries incurred during combat defense operations when his convoy was ambushed by Anti- Coalition Militia operating from the nearby village of Tambeh, Afghanistan. His superior execution of close air support clear-cut communication and direction resulted in the cessation of any further coordinated resistance by the Anti-Coalition Militia. n. DD Form 2823, (Sworn Statement), dated 10 February 2007, shows the applicant states that he visited the Troop Medical Clinic (TMC) and was prescribed medication for a week and half for injuries incurred on 26 December 2007. o. DD Form 2823 (Sworn Statement), dated 17 February 2007, states that the applicant participated in a base defensive combat mission on 26 December 2006 and suffered an injury. He went to the TMC at camp stone in Herat as a result to treat his injuries. p. Memorandum for Record, dated 17 February 2007, shows that the line of duty for the applicant was reviewed for completeness and determined to be “In Line Of Duty”. q. Orders 054-0072, dated 23 February 2007, released the applicant from active duty effective 27 February 2007. r. He was released from active duty on 27 February 2007 for completion of required active service. His DD Form 214 shows that he completed 1 year, 1 month, and 23 days of active duty service. He was awarded or authorized: * Bronze Star with V-Device * Meritorious Service Medal * Marine Corp Good Conduct Medal * Army Reserve Components Achievement Medal * National Defense Service Medal (2nd Award) * Afghanistan Campaign Medal * Global War on Terrorism Service Medal * Army Service Ribbon * Overseas Service Ribbon * Armed Forces Reserve Medal with M devices * NATO Medal * Combat Action Badge * Unites States Army Aviator Badge s. NGB Form 22 (Report of Separation and Record of Service), terminates the applicant’s appointment in the ARNG effective 31 July 2007. t. The applicant’s medical records were not available for review. However, a Clinical Diagnostic Neuropsychological Evaluation, with dates of evaluation 5 April 2010, 14 April 2010, and 21 April 2010 reflects that the applicant reported moderate cognitive impairment after exposure to multiple improvised explosive devices while stationed in Afghanistan. He was recommended to seek treatment for PTSD. u. The applicant’s initial MEB evaluation of PTSD and other psychiatric disorders, TBI, was reviewed for on 26 May 2010 and stated that the Soldier is capable in participating in the MEB process. The judgement: * for subjective symptoms there are three or more subjective symptoms that mildly interfere with work and the Soldier reports havening insomnia, mild headaches and tinnitus * for neurobehavioral effects one or more neurobehavioral effects that occasionally interfere with workplace interaction, social interaction, or both but do not preclude them and the Soldier experiences irritability and moodiness * for communication the Soldiers is able to communicate by spoken and written language expressive communication and to comprehend spoken and written language * for consciousness normal * physician agrees that with the neuropsychological assessment that the primary cause of the Soldier’s “mild borderline” cognitive impairment is the emotional symptoms secondary to his PTSD. v. Orders D229-17, dated 17 August 2010, released the applicant from active duty for physical disability incurred as a result of injury effective 21 September 2010 with a rated disability of 70%. 5. AR 600-8-22 (Military Awards) 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 6. AR 40-66 (Medical Record Administration and Healthcare Documentation) paragraph 1-4g (Medical and Dental officers and other AMEDD (Army Medical Department) providers) states that record documents prepared and received from other MTFs (Military Treatment Facility), or civilian agencies and identify them for filing in AHLTA or the paper-based medical record, as appropriate. AHLTA is used as the primary mode of outpatient medical record documentation. Information is promptly and accurately recorded on medical and dental forms, either electronically in AHLTA or manually on paper. 7. AR 40-501 (Standards of Medical Fitness), states that individuals evaluated under the medical fitness standards contained in this regulation will be reported as medically acceptable for those who meet the medical fitness standard or are medically unacceptable by the reason of medical unfitness for those who possess any one or more of the medical conditions or physical defects listed in this regulation. 8. CFR (Council of Foreign Relations) 45 164.526 (Amendment of protected health information) states that an individual has the right to have a covered entity amend protected health information or a record about the individual in a designated record set for long as the protected health information is maintained in the designated record set. BOARD DISCUSSION: After reviewing the application and all supporting documents, the Board found the relief was not warranted. The applicant’s contentions were carefully considered. Based upon the preponderance of the evidence, the Board agreed there is no evidence that shows his injury met regulatory guidance for entitlement to the Purple Heart. 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. 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 (AR) 600-8-22 (Military Awards) 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 3. AR 40-66 (Medical Record Administration and Healthcare Documentation) paragraph 1-4g (Medical and Dental officers and other AMEDD () providers) states that record documents prepared and received from other MTFs (Military Treatment Facility), or civilian agencies and identify them for filing in AHLTA or the paper-based medical record, as appropriate. AHLTA is used as the primary mode of outpatient medical record documentation. Information is promptly and accurately recorded on medical and dental forms, either electronically in AHLTA or manually on paper. ? 4. AR 40-501 (Standards of Medical Fitness), states that individuals evaluated under the medical fitness standards contained in this regulation will be reported as medically acceptable for those who meet the medical fitness standard or are medically unacceptable by the reason of medical unfitness for those who possess any one or more of the medical conditions or physical defects listed in this regulation. //NOTHING FOLLOWS// ABCMR Record of Proceedings (cont) AR20170017855 6 1