ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS IN THE CASE OF: BOARD DATE: 10 September 2019 DOCKET NUMBER: AR20180002428 APPLICANT REQUESTS: in effect, award of the Purple Heart. APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: * DD Form 149 (Application for Correction of Military Record) * Enlisted Record Brief (ERB) * Three - DA Form 2823 (Sworn Statement) * Consult Requests * DD Form 214 (Certificate of Release or Discharge from Active Duty) 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 it is incorrect and unjust because he was put in for a Purple Heart, yet he never received it and he believes all medical records were destroyed. He had his commanding officer and a medic provide sworn statements and has provided all documentation necessary. His fellow Soldiers received Purple Hearts for the same mission. He signed the statement his Captain submitted for them pertaining to the explosion and he still has migraines till this day. He will go in front of a board if this does not go through and will bring counsel. 3. The applicant provides: a. His Enlisted Record Brief which noted his Afghanistan deployment from 9 July 2011 to 27 April 2012. b. Three sworn statements: (1) BRV served as the company commander during the deployment. On 9 November 2011 he was in the Tactical Operations Center (TOC) when 2nd Platoon came in contact with dismounted enemy forces in the Gayan District. Three Soldiers, including the applicant were near when enemy mortar rounds, assessed to be an 81 mm mortar, struck near their position, less than 20 meters away. The overpressure from the blast disabled the three Soldiers. They were treated for various wounds and under the care of Sergeant (SGT) X___were administered a Military Acute Concussion Evaluation (MACE). Although they all met the requirement to be medically evacuated to a higher level of care at Forward Operating Base (FOB) Sharana, the applicant elected to remain on bed rest. (2) X___was leading his platoon during a dismounted foot movement when his platoon came under direct effective small arms fire from dismounted enemy personnel. His platoon received enemy mortar fire approximately 81 mm in size when several of the enemy mortar rounds landed within less than 20 meters of their position. The overpressure form the direct blast temporarily disabled the applicant and two other Soldiers. The Soldiers reported to the medic station and received the mandatory MACE and the results made them eligible to receive higher care at FOB Sharana; however, the applicant elected to remain with the unit to alleviate already burdened manning requirements. He remained on bed rest until he was mission capable. (3) SGT X___served as the noncommissioned officer in charge (NCOIC) of the aid station that treated the applicant after the firefight in the Gayan District in Afghanistan. He performed a MACE on the applicant and several other Soldiers. The applicant could have been evacuated due to his borderline test, but he elected to wait until the mandatory 24 hour best rest was up for a reevaluation. After the 24 hours the applicant reported he was not experiencing any new issues outside of the ones originally reported. He was given 5 days of red rest for the concussion and the reports were input into AHLTA (Armed Forces Health Longitudinal Technology Application) with a hard copy into his deployment records. He later received a Purple Heart for the injuries sustained that day. Many records in AHLTA never made it to their stateside records and a few Soldiers reported they never received their records. c. A consult request printed on 4 February 2015 which indicates the applicant underwent the eye optometry acquired brain injury exam for complaints of blurred and tunnel vision with migraines. The assessments note traumatic brain injury and post concussive headaches/migraines which began after the 2012 deployment to Afghanistan. Several treatment plans are referenced in the consult request. 4. A review of the applicant’s service record shows: a. He enlisted in the Regular Army on 7 January 2010. b. His foreign service included the following: * Germany from 15 July 2010 to 8 July 2011 * Afghanistan from 9 July 2011 to 27 April 2012 * Germany from 28 April 2012 to 17 October 2012. c. On 1 July 2014, a Physical Evaluation Board (PEB) convened and found the applicant physically unfit. They recommended a rating of 50% and that the applicant’s disposition be permanent disability retirement. The service record also noted the disability disposition was not based on disease or injury incurred in the line of duty in combat with an enemy of the United States and as a direct result of armed conflict or caused by an instrumentality of war and incurred in the line of duty during a period of war. d. The record is void of further medical documentation pertaining to his time in Afghanistan or an award recommendation for the Purple Heart. e. On 14 October 2014, he was honorably retired (permanent disability) from active duty. His DD Form 214 (Certificate of Release or Discharge from Active Duty) shows he completed 4 years, 9 months, and 8 days of active service for the period with 7 years, 5 months, and 22 days of total prior active service, and 2 years 6 months, and 8 days of prior inactive service. It also shows he was awarded or authorized: * Afghanistan Campaign Medal with Campaign Star * Scuba Diver Badge * Army Commendation Medal (2nd Award) * USN Achievement Medal * USN Unit Commendation * USN Meritorious Unit Commendation * Valorous Unit Award * Army Good Conduct Medal * USN Good Conduct Medal (2nd Award) * National Defense Service Medal * Armed Forces Expeditionary Medal * Global War on Terrorism Service Medal * Noncommissioned Officer Professional Development Ribbon * Army Service Ribbon * Overseas Service Ribbon (2nd Award) * USN Sea Service Deployment Ribbon (2nd Award) * NATO Medal * Combat Infantryman Badge * Parachutist Badge * Expert Marksmanship Badge with Rifle Bar 5. On 3 February 2016, the Soldier Program and Services Division at Human Resources Command (HRC) disapproved his request for award of the Purple Heart for injuries received while deployed in support of Operation Enduring Freedom. The particular event did not meet the statutory guidance in accordance with AR 600-8-22, paragraph 2-8. * the provided medical documentation and a review of his AHLTA records did not provide a link between his injuries and the 9 November 2011 incident * his records indicated a knee injury prior to the 2011 incident and no official documentation was provided nor could be located to conclusively support his claim of a diagnosed concussion 6. By regulation, the criteria for an award of the Purple Heart requires the submission of substantiating evidence to verify: * the injury/wound was the result of hostile action * the injury/wound must have required treatment by personnel * the medical treatment must have been made a matter of official record BOARD DISCUSSION: After reviewing the application and all supporting documents, the Board determined relief was warranted. Based upon the company commander’s statement, other sworn statements provided, as well as the medical NCOIC that administered the test stated the applicant had 5 days of bed rest for concussion, the Board concluded that there was sufficient evidence to show that the applicant should be awarded the Purple Heart for injuries he incurred during his service in Afghanistan. BOARD VOTE: Mbr 1 Mbr 2 Mbr 3 X X X GRANT FULL RELIEF : : : GRANT PARTIAL RELIEF : : : GRANT FORMAL HEARING : : : DENY APPLICATION BOARD DETERMINATION/RECOMMENDATION: The Board determined the evidence presented is sufficient to warrant a recommendation for relief. As a result, the Board recommends that all Department of the Army records of the individual concerned be corrected by amending his DD Form 214 for the period ending 14 October 2014 by: * Awarding him the Purple Heart for wounds received in action on 9 November 2011 * Adding the Purple Heart to his DD Form 214 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. The Purple Heart was established by General George Washington at Newburgh, NY on 7 August 1782 during the Revolutionary War. It was reestablished by the President of the United States per War Department General Orders Number 3 in 1932. It was awarded in the name of the President of the United States to any member of the Armed Forces or any civilian national of the United States who, while serving under competent authority in any capacity with one of the U.S. Armed Services after 5 April 1917, died or sustained wounds as a result of hostile action. Effective 19 May 1998, award of the Purple Heart is limited to members of the Armed Forces of the United States. 3. Army Regulation 600-8-22 (Military Awards) provides Army policy, criteria, and administrative instructions concerning individual military decorations. a. The Purple Heart is awarded to any member of an Armed Force of the United States who, while serving under competent authority in any capacity with one of the U.S. Armed Services after 5 April 1917, has been wounded or killed, or who has died or may hereafter die after, being wounded: * in any action against an enemy of the United States * in any action with an opposing armed force of a foreign country in which the Armed Forces of the U.S. are or have been engaged * while serving with friendly foreign forces engaged in an armed conflict against an opposing armed force in which the U.S. is not a belligerent party * as the result of an act of any such enemy of opposing Armed Forces * as the result of an act of any hostile foreign force b. Paragraph 2-8g. provides examples of enemy-related injuries which clearly justify award of 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. c. Paragraph 2-8h provides examples of injuries or wounds which clearly do not justify award of the Purple Heart which includes: * battle fatigue * post-traumatic stress disorder * 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. Paragraph 2-8i states 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. ABCMR Record of Proceedings (cont) AR20180002428 5 1