ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS BOARD DATE: 4 April 2019 DOCKET NUMBER: AR20180000513 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) * Orders HO-056-0010, Headquarters, III Corps and Fort Hood, Fort Hood, dated 25 February 2010 * Orders 115-109, State of Florida, Department of Military Affairs, Office of the Adjutant General, St. Augustine, FL dated 5 December 2009 * 164th Transportation Battalion Report, dated 16 May 2010 * AF IMT 560 (Authorization and Treatment Statement), dated 17 May 2010 * SF 600 (Chronological Record of Medical Care), dated 19 May 2010 * four DA Forms 2823 (Sworn Statement), dated 25 May 2010 * memorandum, A Company, 1st Battalion, 124th Infantry Regiment, Camp Buehring, Kuwait, dated 29 May 2010, subject: (Applicant) * Permanent Order 186-010, Headquarters, 1st Sustainment Command (Theater), Kuwait, dated 5 July 2010 * DA Form 638 (Recommendation for Award), dated 4 August 2010 * DA Form 2173 (Statement of Medical Examination and Duty Status), dated 24 August 2010 * memorandum, National Guard Bureau, Arlington, VA, dated 6 September 2010, subject: Line of Duty Determination (Applicant) * Bronze Star Medal Certificate, dated 22 September 2010 * DA Form 1156 (Casualty Feeder Card), dated 26 October 2010 * Orders 017-053, Department of Military Affairs, Office of the Adjutant General, St. Augustine, FL dated 27 January 2011 * DD Form 214 (Certificate of Release or Discharge from Active Duty) * DA Form 4037 (Enlisted Record Brief), dated 12 March 2012 * Purple Heart Application Packet, dated 2 September 2014 * memorandum, U.S. Army Human Resources Command, Fort Knox, KY, dated 28 September 2015 FACTS: 1. The applicant states: a. He submitted an application to U.S Army HRC for the PH but it was denied. b. His packet included medical documents clearly stating he suffered a concussion. The denial letter states he was seen by a medical professional for "ringing in the ears after the incident and was returned to duty." It also states, "Hearing loss or tinnitus are not criteria for award of the Purple Heart." c. He believes the denied application is unjust due to: (1) a line of duty determination showing his concussion was "in the line of duty." (2) block 10 of the DA Form 2173 was completed by CPT S____, the attending physician, showing "Concussion w/o COMA." (3) block 15 of the DA Form 2173 showed (Applicant) vehicle was struck by an improvised explosive device (IED). (4) block 30 of the DA Form 2173 was completed by the Brigade Battle Captain in Kuwait and used his "how, where and when explanation." Block 30 details the accident, not the medical diagnosis. (5) in the chronological record of medical care, SOAP notes indicate ringing in the ears post blast in the subjective portion but resulted in the provider, J____ F____, diagnosing a concussion. 2. On 25 February 2010, he was ordered to active duty in support of Operation Iraqi Freedom, effective 26 February 2010. 3. He served in Iraq from 28 February 2010 through 15 December 2010. 4. He (then a SGT) provided a self-authored sworn statement, dated 25 May 2010, in which he outlined an IED event occurring at approximately 0135 hours, 17 May 2010: a. While attached to A Company, 1st Battalion, 124th Infantry, in the vicinity of Route Tampa, his convoy was struck by a complex attack. The first IED went off on the road on the first heavy equipment transport (HET) system approximately 5 meters from the road. The second IED hit about 10 feet from his gun truck, which was 14th in order of movement (OOM). b. He immediately checked the status of his vehicle crew and found them to be ok. They had ringing of the ears and bumps from being thrown around from the concussion. He informed the rest of the convoy over the radio of an IED attack. They began to receive small-arms fire from the right (east) side of the road. c. He ordered vehicles to maneuver into tactical positions while under fire. d. He informed the medic SGT X___ X____ that there were no injuries requiring medical aid. Once out of the kill zone the convoy proceeded 1.5 miles where a disabled HET vehicle could no longer roll. He did a detailed inspection of all vehicles, recovered the damaged HET vehicle and assessed other damaged vehicles, he processed a report which included of "no injuries." 5. He provided a sworn statement from SPC X____ X____, dated 25 May 2010, outlining the incident, IED explosions and complex attack from his perspective. He made no mention of any injuries. 6. He provided a sworn statement from 1st SGT X____ X X____, dated 25 May 2010, outlining the IED explosions, small-arms fire, and complex attack from his perspective. "All members of CET 4 performed all action[s] on contact correctly as per the Battalion SOP. Due to actions of these Soldiers there was no further lost equipment or personnel [during] the convoy." 7. He provided a sworn statement from SGT X____ X. X____, dated 25 May 2010, outlining the incident, IED explosions and complex attack from his perspective. He made no mention of any injuries. 8. He provided a casualty feeder card, dated 26 October 2010, showing a "non-hostile" military enemy incident in Iraq with an incident date of 17 May 2010. 9. He provided a Line of duty determination, dated 6 September 2010, showing a concussion he received was in the line of duty. 10. He provided n SF 600, dated 19 May 2010, showing he was evaluated at the 332nd Expeditionary Medical Group Mental Health Clinic, Balad Air Base, Iraq. Under subjective it states he was in a vehicle that experienced an IED attack 20 feet away on 17 May 2010 at 0130 hours. He was wearing a helmet. No loss of consciousness with ringing in the ears post-blast which was milder on 18 May 2010 and was now resolved. Recommend full return to duty. The assessment was "concussion." 11. He provided DA Form 638, dated 4 August 2010, showing he was recommended for and received the Bronze Star Medal. 12. He provided a memorandum from U.S. Army HRC, disapproving his application for the PH. It cited Army Regulation 600-8-22, paragraph 2-8h(12) in its explanation of disapproval. It noted the applicant was seen for ringing in the ears after the incident and was returned to duty, "Hearing loss or tinnitus are not criteria for award of the PH." 13. Army Regulation 600-8-22 (Military Awards) provides 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 do not justify award of the Purple Heart. This regulation provides that hearing loss and tinnitus (i.e., ringing in the ears) do not justify award of the Purple Heart. BOARD DISCUSSION: After review of the application and all evidence, the Board determined there is insufficient evidence to grant relief. The applicant’s contentions, medical concerns, and sworn witness statements were carefully considered. The applicant states, in effect, he was diagnosed with a concussion resulting from an IED blast. The evidence provided and of record shows the contested concussion did not immediately result in the loss of consciousness and a following 48 hours or more of limited duty. Based upon the preponderance of evidence, the Board agreed the incident did not meet regulatory guidance entitling him to the Purple Heart. 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. ADMINISTRATIVE NOTE(S): Not Applicable REFERENCES: 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, and the medical treatment must have been made a matter of official record. a. Examples of enemy-related injuries which clearly justify the Purple Heart: * 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 the Purple Heart: * Airborne (for example, parachute/jump) injuries not caused by enemy action * 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 following nonexclusive list provides examples of signs, symptoms, or medical conditions documented by a medical officer or medical professional that meet the standard for award of the Purple Heart: * Diagnosis of concussion or mild traumatic brain injury * Any period of loss or a decreased level of consciousness * Any loss of memory for events immediately before or after the injury * Neurological deficits (weakness, loss of balance, change in vision, praxis (that is difficulty with coordinating movements), headaches, nausea, difficulty with understanding or expressing words, sensitivity to light, and so forth) that may or may not be transient. Intracranial lesion (positive computerized axial tomography or magnetic resonance imaging scan) d. The following nonexclusive list provides examples of medical treatment for concussion that do meet the standard of treatment for award of the Purple Heart: * Referral to neurologist or neuropsychologist to treat the injury * Rehabilitation (such as occupational therapy, physical therapy, and so forth) to treat the injury * Restriction from full duty for a period of greater than 48 hours due to persistent signs, symptoms, or physical finding of impaired brain function //NOTHING FOLLOWS// ABCMR Record of Proceedings (cont) AR20180000513 6 1