ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS IN THE CASE OF: BOARD DATE: 20 May 2019 DOCKET NUMBER: AR20170019408 APPLICANT REQUESTS: award of the Purple Heart (PH). APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: * DD Form 149 (Application for Correction of Military Record) * Commander's Statement, dated 21 March 2005 * memorandum, Headquarters, 1st Battalion, 178th Field Artillery (SECFOR), Camp Navistar, Kuwait, dated 18 April 2005, subject: Informal Line of Duty (LOD) for (Applicant) * memorandum, Headquarters, 7th Transportation Group (Forward), Camp Arif Jan, Kuwait, Dated 5 May 2005, subject: Legal Review of LOD (Applicant) * DA Form 2823 (Sworn Statement), dated 7 August 2005 * DA Form 2823, dated 7 August 2005 * Permanent Orders 250-05, Headquarters, 377th Theater Support Command (Forward), Coalition Forces Land Component Command, Kuwait, dated 7 September 2005 * DA Form 689 (Individual Sick Slip), dated 24 September 2005 * DA Form 689, dated 26 October 2005 * DA Form 2173 (Statement of Medical Examination and Duty Status), dated 22 December 2005 * memorandum, Headquarters, Fort Dix, NJ, dated 30 December 2005, subject: LOD Review for Completeness (Applicant) * 9 pages of medical treatment documents (May-December, 2005) * Neurological Evaluation, Sumter Neurology and Pain Management, dated 4 May 2006 * page 3, DD Form 2808 (Report of Medical Examination), dated 11 August 2006 * DA Form 3349 (Physical Profile), dated 16 August 2006 * outpatient psychiatric evaluation, Dwight D. Eisenhower Army Medical Center, dated 11 September 2006 * page 5, Medical Evaluation Board, Recommendation, dated 4 October 2006 * four pages of medical treatment documents (August-September 2006) * * Orders 349-0015, Headquarters, 3rd Infantry Division and Fort Stewart, Fort Stewart, GA, dated 15 December 2006 * Orders 354-0014, Headquarters, 3rd Infantry Division and Fort Stewart, Fort Stewart, GA, dated 20 December 2006 * DD Form 214 (Certificate of Release or Discharge from Active Duty) * Department of Veterans Affairs Consultation notes, dated 21 March 2007 * page 1 and 2, Department of Veterans Affairs, Rating Decision, dated 29 August 2007 * six pages of Department of Veterans Affairs treatment notes (2007) * pages 1 and 2, DA Form 199 (Physical Evaluation Board Proceedings), dated 3 February 2010 * two DA Forms 2823, dated 21 January 2015 * DA Form 2823, dated 2 October 2015 * DA Form 2823, dated 4 October 2015 * letter, Disabled American Veterans Service Officer, dated 24 August 2016 * letter, U.S. Army Human Resources Command, Fort Knox, KY, dated 29 January 2016 * letter, Applicant, dated 19 October 2017 * letter, Applicant, dated 6 November 2017 * letter, Office of Adjutant General, State of South Carolina, undated * letter, Headquarters, U.S. Army Medical Command, Joint Base San Antonio and Fort Sam Houston, TX, undated FACTS: 1. The applicant states under the new guidelines his injuries received during deployment to Iraq qualifies him for the PH. 2. He was ordered to active duty on 15 July 2004 and served in Iraq from September 2004 through September 2005. 3. He provided a statement from his Commander, A Battery, 1st Battalion, 178th Field Artillery (SECFOR), Camp Navistar, Kuwait, showing he was incapacitated on 14 March 2005 from performing normal duties. 4. He provided memorandum, Commander, 1st Battalion, 178th Field Artillery (SECFOR), dated 18 April 2005, showing a request for an informal LOD. 5. He provided memorandum, Commander, Headquarters, 7th Transportation Group (Forward), Camp Arif Jan, Kuwait, dated 5 May 2005, showing the legal review of his LOD was completed. 1. 6. He provided a DA Form 2823, dated 7 August 2005, from SSG X , in which he reported on 22 December 2004, he, (Applicant) and another Soldier were involved in two improvised explosive device (IED) explosions. 7. He provided a DA Form 2823, dated 7 August 2005, from SSG X , in which he reported: he, (Applicant), and another Soldier were subject to an attack from four IEDs on 23 December 2004 while they were escorting a convoy element returning to Scania from Kuwait. SSG X____ stated, "Luckily at that time we were shielded by the truck in front of us and no one sustained injuries." 8. He provided Permanent Orders 250-05, dated 7 September 2005, awarding him the CAB for service on 11 December 2004. 9. He provided a sick slip, dated 24 September 2005, showing he had ringing in ears; shoulder pain; knee, neck, back pain; and frequent burning urination. 10. He provided a sick slip dated 26 October 2005, showing he was given quarters for nausea, drowsiness, headaches, back and shoulder pain, headaches, numbness and tingling down his left arm. 11. He provided a DA Form 2173, dated 22 December 2005, in which he was treated on 12 June 2005 for post concussive syndrome. The details noted, "Soldier was injured in blast from IED in Iraq and sustained a concussion." 12. He provided a memorandum, Headquarters, Fort Dix, NJ, dated 30 December 2005, which showed his LOD for post concussive syndrome was reviewed, completed, and approved. 13. He provided progress notes for medical care from the Camp Buehring Troop Medical Clinic, Kuwait, dated 5 August 2005, showing he was evaluated for ringing in ears and progressive hearing loss since January 2005. The report stated he had been involved in five IEDs. 14. He provided a medical evaluation, dated 9 August 2006, showing diagnosis of Post- Traumatic Stress Disorder, chronic pain, decreased range of motion in the right index finger due to fracture, major depressive reaction, chronic cervical and lower back pain due to degenerative disc disease, common migraines, and bilateral hearing loss. It stated, "In February 2005, he fell of his vehicle and hit the rack of the spare tire with his back, sustaining an injury to his upper and lower back. In the same fall he injured his right index finger." 15. He provided a neurological evaluation from Sumter Neurology and Pain Management, dated 4 May 2006. The history of present illness and chief complaint showed "he was involved in an enemy attack where explosions occurred around him. He was thrown to the ground and struck his head so hard he momentarily lost vision 1. and he sustained hearing damage as a result of his concussive trauma. This explosion occurred in December 2005 and his symptoms again are getting worse." 16. He provided page one of a two page report of a physical profile, dated 16 May 2006, showing his medical conditions as chronic low back and neck pain, decreased hearing, chronic headaches, stiffness of right index finger, and PTSD. It was marked "MEB" with limitations: no Army Physical Fitness Test, ruck march, field exercises, and body armor. 17. He provided an addendum to an outpatient medical summary from Dwight Eisenhower Army Medical Center, dated 11 September 2006, showing he was the subject of multiple diagnoses. 18. He provided progress notes, dated 12 September 2006, showing history of daily headache and memory loss since multiple exposures to IED blasts. 19. He was honorably retired on 27 December 2006 by reason of temporary disability. 20. He provided a Department of Veterans Affairs rating decision, dated 29 August 2007, showing he was awarded disability compensation for PTSD; degenerative joint and disc disease, lumbar spine; tinnitus; degenerative joint and disc disease, cervical spine; residuals of fracture, right index finger; and post-concussive headache syndrome. 21. He provided DA Form 199, dated 3 February 2010, showing the PEB proceedings determined his disability for PTSD at 50 percent, his disability for right index finger, limitation of motion at 10 percent, his cervical strain (chronic cervical pain at 10 percent; his lumbosacral strain (chronic low back pain) at 10 percent; and migraine headaches at zero percent. His disposition was determined to be permanent disability retirement. 22. He provided two DA Forms 2823, dated 14 January 2015. In the first sworn statement, Specialist X stated the applicant was his roommate during their deployment to OIF in 2005 and reported his convoy was hit by IEDs and complained of headache pain. The second DA Form 2823 by CSM X____ reported the applicant was not allowed to go on missions because of an injury. 23. He provided a DA Form 2823, dated 2 October 2015, from MAJ X____ in which he stated, "[Applicant] and I served in the same unit and occasionally went on convoy security missions together during this deployment. During one of these missions our convoy was hit by an IED as we were on the way to Anaconda. I was the convoy escort commander and [applicant] was my gunner. The IED detonated right behind the driver side of our HMMWV. Dirt and debris were thrown onto our vehicle and the truck immediately behind us had their windshield cracked. Fortunately no one was visually hurt during the attack. I am unclear as to the exact date in which this event happened but it was during the spring-summer time frame of 2005." 1. 24. He provided a DA Form 2823, dated 4 October 2015, from MSG X____ in which he recounted an IED explosion behind applicant's vehicle during a convoy. "Debris hit his vehicle and the vehicle behind him. No one was hurt to my knowledge as a result of the IED explosion. I am uncertain of the date of the event. [Applicant] did seek medical attention for various issues while serving in support of OIF. He did seek medical attention due to his hearing." 25. He provided a letter from U.S. Army HRC, dated 29 January 2016, rejecting his request for the PH based on not it meeting the statutory guidance in accordance with Army Regulation 600-8-22 (Military Awards), paragraph 2-8h(12) and paragraph 2- 8h(13). It stated, "Hearing loss and tinnitus do not qualify for award of the PH. The submitted medical documentation does not show a diagnosis of traumatic brain injury or concussion." 26. He provided an undated letter from the Office of the Adjutant General, State of South Carolina Military Department, regarding increasing TBI awareness for South Carolina Hospital systems. It stated, "The leading causes of TBI are IEDs, assaults, vehicle crashes, and explosive shockwaves." 27. He provided an undated letter from Headquarters, U.S. Army Medical Command, welcoming him into the ranks of the U.S. Army Wounded Warrior (AW2) Alumni Program. 28. His record contains a DA Form 2173 (Statement of Medical Examination and Duty Status), dated 21 March 2005, showing he was admitted as an outpatient to MA Kuwait treatment facility after falling off a vehicle while taking down a 50 cal. machine gun when he lost his footing hand hurt his finger. 29. Army Regulation 600-8-22 prescribes Army policy, criteria, and administrative instructions concerning individual and unit military awards. a. It provides that the Purple Heart is awarded for a wound sustained 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 a medical officer, and the medical treatment must have been made a matter of official record. The Purple Heart differs from all other decorations in that an individual is not "recommended" for the decoration; rather, he or she is entitled to it upon meeting specific criteria. A Purple Heart is authorized for the first wound suffered under conditions indicated above; an oak leaf cluster is awarded to be worn on the medal or ribbon for each subsequent award. Not more than one award will be made for more than one wound or injury received at the same instant or from the same missile, force, explosion, or agent. b. Examples of enemy-related injuries which clearly justify award of the Purple Heart include 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. c. Examples of injuries or wounds which clearly do not justify award of the Purple Heart include post-traumatic stress disorder and mild traumatic brain injury 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. d. The Purple Heart may be awarded for concussion injuries caused as a result of enemy generated explosions: mild TBI or a 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. When contemplating this award authorization officials must take into consideration the degree to which the enemy caused the injury. 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: 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. 5/28/2019 CHAIRPERSON Signed by: 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: Army Regulation 600-8-22 provides that the Purple Heart is awarded for a wound sustained 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 a medical officer, and the medical treatment must have been made a matter of official record. The Purple Heart differs from all other decorations in that an individual is not "recommended" for the decoration; rather, he or she is entitled to it upon meeting specific criteria. A Purple Heart is authorized for the first wound suffered under conditions indicated above; an oak leaf cluster is awarded to be worn on the medal or ribbon for each subsequent award. Not more than one award will be made for more than one wound or injury received at the same instant or from the same missile, force, explosion, or agent. a. 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 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 b. Examples of injuries or wounds which clearly do not justify award of the Purple Heart are as follows: * food poisoning not caused by enemy agents * chemical, biological, or nuclear agents not released by the enemy * battle fatigue * disease not directly caused by enemy agents * accidents, to include explosive, aircraft, vehicular, and other accidental wounding not related to or caused by enemy action * self-inflicted wounds, except when in the heat of battle and not involving gross negligence * post-traumatic stress disorder * hearing loss and tinnitus (for example, ringing in the ears) * mild traumatic brain injury 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 c. The Purple Heart may be awarded for concussion injuries caused as a result of enemy generated explosions: mild TBI or a 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. When contemplating this award authorization officials must take into consideration the degree to which the enemy caused the injury. 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.