ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS IN THE CASE OF: BOARD DATE: 1 October 2019 DOCKET NUMBER: AR20180003458 APPLICANT REQUESTS: reversal of the decision by the Awards and Decorations Branch at the U.S. Army Human Resources Command (HRC) to deny him award of the Purple Heart. APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: * DD Form 149 (Application for Correction of Military Record) * Self-Authored Statement * Two Witness Statements * Permanent Orders (PO) 1A-07-282-106 dated 9 October 2007 * Orders 340-034 dated 6 December 2007 * DA Form 2166-8 (NCO Evaluation Report (NCOER)) * PO 282-030 dated 8 October 2008 – Combat Infantryman Badge * DA Form 638 (Recommendation for Award) – Bronze Star Medal – Valor (BSMV) * BSMV Citation * Army Commendation Medal – Valor Certificate * DA Form 638 – BSM with Citation and Certificate * Medical Documentation – Knee * Operative Report dated 4 November 2015 * HRC Letter dated 18 December 2017 FACTS: 1. The applicant states he received injuries due to direct enemy contact on 27 July 2008 at Patrol Base Attal in Helmand, Afghanistan. His original request to HRC was denied on 18 December 2017 due to lack of supporting medical documentation and he has not included the supporting medical documentation he received once he was a facility that could provide treatment. He continued his care after returning home to Oregon. He was in the National Guard and his care was provided by civilian doctors. He is now required to have surgery on his left knee to repair a torn patellar tendon and separated femoral condyle. Medical documentation can be retrieved from the VA, if needed, as it was included for his disability award. The applicant provides the following details of the event: a. They were embedded advisors to the Afghan Nation Army and lived in extremely remote, austere conditions, with no immediate medical support. Their team was so small (2-3 Americans at a time) that it was considered dangerous, irresponsible, and flat out wrong to leave their teammates unless they were suffering from a life-threatening condition. If possible, they would wait to receive documented, advanced medical evaluation and care once they returned to a safe location, for this reason he could not receive time documentation “at or near the date of enemy action.” As a National Guard unit they were also encouraged to seek medical attention from a civilian provider once they returned home. It was a common practice although an investigation revealed it was inappropriate. b. He was injured by an explosion during an ambush on 27 July 2008 while in direct, prolonged contact with the enemy. He sought medical care for the injury once he was in a safe location and able to do so. He was advised to seek further care from his civilian doctors once he returned home. He did and he was required to have surgery. Based on the events described, he believes he meets the criteria for award of the Purple Heart. c. He was on a dismounted improvised explosive device (IED) patrol in Upper Greshk Valley, Helmand Afghanistan as an embedded advisor to the Afghan National Army (ANA) with team members Captain (CPT) X___ and Sergeant First Class (SFC) X___, now retired. They were engaged by multiple weapon systems to include small arms, heavy machine guns, rocket-propelled grenade (RPG) launchers, mortars, and a 14.5 mm anti-aircraft weapon. Their Afghan RPG gunner was immediately shot in the arm and was evacuated. The team attempted to break contact, but they were repeatedly overwhelmed with enemy fire. d. In their attempts to suppress the enemy, move casualties, and navigate incoming rounds, he was repeatedly knocked to the ground by explosions. One blast in particular sent an immediate burning to his left knee. He was in pain, but he was overcome by adrenaline and desperate to take the wounded to cover. They eventually evacuated and returned to their patrol base to call for artillery on the enemy and evacuate their casualties. SFC X___ was relocated immediately following the event and the applicant did not want to leave CPT X____ alone because he felt his injury was insignificant in comparison to the injuries their casualties had sustained. Since they did not have access to immediate medical treatment, he remained in place until they were in a safe location with medical aid. e. Over the course of the deployment they were directly engaged with the enemy multiple times with small arms, heavy machinegun, RPG, mortar, and IED attacks and he continued to get knocked down and ultimately “beat up” by various blasts. He felt fortunate that he was not injured worse. Due to the remote nature of their location he was unable to seek medical treatment at the time and was also hesitant to leave his team. He sought medical treatment when he arrived at a larger forward operating base (FOB) and was given pain medication, sleep aids, and documentation. He was subsequently diagnosed with a torn patellar tendon and separation of the femoral condyle. His attempts at physical therapy and injections were unsuccessful and restorative surgery was required. He ultimately retired from the Army and has included documentation to support his claim. 2. The applicant provides: a. Two witness statements: * CPT X___, now Major (MAJ), stated he was the American unit commander of the embedded tactical training (ETT) team assigned to a company of Afghan Army Soldiers at Patrol Base Attal in Helmand, Afghanistan. The applicant was the senior noncommissioned officer (NCO) assigned to his team. * He confirmed that on 27 July 2008 they were ambushed by enemy forces and engaged in heavy direct and indirect fire. He provided similar details as the applicant and further stated he personally witnessed the applicant get knocked to the ground by the explosion. The applicant continued with the mission and they had no medical facilities or support, but he received medical attention once they were in a safe location. * Lieutenant Colonel (LTC) X___ noted he was assigned to the ETT with the applicant from 7 March 2008 to 4 October 2008. He was the commander at another patrol based and his team monitored on the radio a massive firefight where the applicant and his team were assigned. He saw the applicant on 1 August 2008 limping and the applicant shared with him that he hurt his knee in the firefight. * LTC X___ further indicated the applicant rescued an Afghan Soldier and had fallen on his knee several times. He served with him over the couple months and observed his knee giving him trouble. After returning home and receiving treatment, the diagnosis changed from a hurt knee to a torn patellar tendon and separation of the femoral condyle. He highly recommend award of the Purple Heart for the injuries he suffered. b. PO 1A-07-282-106, dated 9 October 2007, ordered the unit of the applicant to active duty in support of Operating Enduring Freedom (OEF) under Title 10 United States Code. c. Orders 340-034, dated 6 December 2007, ordered the applicant to active duty in support of OEF with a 5 January 2008 mobilization report date. d. An NCOER for the period of 1 October 2007 to 30 September 2008, identified the applicant as the company team mentor for the Counter Narcotic Infantry Kandak (CNIK) of the ANA. The rater also stated the applicant was nominated for the Combat Infantryman Badge (CIB) and the Bronze Star Medal with V Device for leading over 120 combat patrols on a remote, hostile patrol base resulting in enemy combat. He was rated among the best by the rater and a 1/1 by the senior rater. e. PO 282-030, dated 8 October 2008, announced the award of the CIB to the applicant with a 17 May 2008 period of service for engaging in active ground combat. f. A DA Form 638 was provided with a recommendation for a Bronze Star Medal with Valor; however, the award was downgraded to an ARCOM with Valor by the theater commander, Major General (MJ) X___. The accompanying citation states, among other accomplishments, the applicant heroically distinguished himself by exceptionally valorous conduct in the face of the enemy. He courageously volunteered to hold the support by fire position while other team members began moving the casualties. Upon breaking contact, the applicant and another team member began to manage the casualty’s blood loss and shock with pressure bandages while machine gun fire continued to impact all around them. He even shielded the casualties with his own body. g. The ARCOM Certificate, dated 27 July 2008, states for meritorious service while deployed in support of OEF. His work ethic and dedication to excellence were instrumental in supporting the reconstruction efforts of Afghanistan. His performance of duties in a combat zone reflects great credit upon himself, the command, and the U.S. Army. h. A second BSM was submitted on DA Form 638 and approved by MG RWC on 26 November 2008. The citation stated, among many of accomplishments, the applicant rescued an ANA Soldier who was wounded carrying him over 2000 meters to safety in a hail of indirect and direct fire. He stopped several time to treat the casualty from severe bleeding and on more than one occasion, he covered the casualty with his own body to save him from harm. He was always assigned the most difficult missions with the team and he was always at the point of the spear on the battlefield. He took the appropriate actions necessary to ensure mission success. i. The BSM Certificate, for the period of 7 March 2008 to 7 December 2008, stated the applicant distinguished himself through untiring personal commitment, leadership, displaying courage under fire, and contributions to the overall success of the CNIK in support of the ANA. j. 38 pages of medical documentation for his knee injury includes numerous DA Form 2173 (Statement of Medical Examination and Duty Status), Standard Form 600 (Chronological Record of Medical Care), and documentation from civilian practices which note: * left knee pain/tenderness which resulted from combat events * difficulty walking * not receiving timely medical care due to remote location * physical therapy attempts failed * MRI’s revealed fluid collection behind the patellar tendon and bursitis * a moderate grade longitudinal tear of the articular side of the tendon * 4 mm focal are of moderate grade cartilage loss * ganglion cysts adjacent to the ACL and fibular collateral ligament * degenerative spurring * injection attempts failed and surgery recommended k. An operative report, dated 4 November 2015, provided details of the surgery the applicant underwent to attempt to rehabilitate his left knee. 3. A review of the applicant’s service record shows: a. He enlisted in the Oregon Army National Guard on 25 January 1998. b. He served in Afghanistan from 2 January 2008 to 23 December 2008. c. Orders 340-034, dated 6 December 2007, ordered him to active duty in support of OEF a with a 5 January 2008 date for mobilization at Ft. Riley. d. Orders 344-0036, dated 9 December 2008, released him from active duty, not by reason of physical disability, with an effective date of 23 December 2008. e. On 23 December 2008, he was honorably released from active duty. His DD Form 214 (Certificate of Release or Discharge from Active Duty) shows he completed 11 months and 22 days of active service with 10 years, 10 months, and 25 days of prior active service, and 3 years 11 months, and 11 days of inactive service. It also shows he was awarded or authorized: * Afghanistan Campaign Medal with Campaign Star * Bronze Star Medal * Army Commendation Medal (4th Award) * Army Achievement Medal (5th Award) * Joint Meritorious Unit Award * Coast Guard Meritorious Unit Commendation * Army Superior Unit Award * Army Good Conduct Medal (3rd Award) * Army Reserve Components Achievement Medal (2nd Award) * National Defense Service Medal with Bronze Service Star * Global War on Terrorism Service Medal * Humanitarian Service Medal * Army Service Ribbon * Overseas Service Ribbon * Army Reserve Component Overseas Training Ribbons * Coast Guard Special Operations Service Ribbon * Armed Forces Reserve Medal with M Device and 20 year Device * Combat Infantryman Badge * Expert Infantryman Badge * Air Assault Badge * Driver and Mechanic Badge with Driver Wheeled Vehicle Clasp * Army National Guard Recruiter Badge, Master f. His Enlisted Record Brief indicated he served in Iraq from 2 May 2009 to 18 August 2010. Orders 139-501, dated 19 May 2009, noted he was deployed in support of Operation Enduring Freedom. g. He returned to active duty on 1 September 2010. He was honorably retired on 31 October 2016. His DD Form 214 shows he completed 6 years and 2 months of active service. It also shows he was awarded or authorized (in addition to prior awards listed): * Armed Forces Reserve Medal with M Device and 10 Year Bronze Hourglass * Meritorious Service Medal * Army Commendation Medal with V Device * Army Reserve Components Achievement Medal (4th Award) * Noncommissioned Officer Professional Development Ribbon 4. On 18 December 2017, the Soldier Programs and Services Division at 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, due to the lack of supporting medical documentation at or near the date of enemy action reflecting a diagnosis or indication of a qualifying injury which made it impossible to connect an injury to the incident. 5. A review of the applicant’s record confirms he is eligible for an award that is not recorded on his DD Form 214. The award will be added to his DD Form 214 as an administrative correction and will not be considered by the Board. The Board will consider award of the Purple Heart. 6. By regulation: a. 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 b. The Global War on Terrorism Expeditionary Medal (GWOTEM) is authorized for award to members of the Armed Forces of the United States who deployed abroad for service in Global War on Terrorism operations on or after 11 September 2001 to a date to be determined. BOARD DISCUSSION: After reviewing the application and all supporting documents, the Board found relief was not warranted. Board members noted that the injury occurred as a result of being “knocked down.” They acknowledged the injury but found insufficient evidence to show he required medical treatment. One of the medical documents does indicate he was injured but the injury is listed as ringing in the ears. Another document stated “not evaluate at the time of injury” due to lack of medical assets in the area. The contested injury supposedly occurred on 27 July, but the medical document shows she was seen 4 months later (28 November). The Board concluded that due to the lack of supporting medical documentation at or near the date of enemy action reflecting a diagnosis or indication of a qualifying injury, there was insufficient evidence to grant the applicant’s requested relief. 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 X 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: 1. 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. 2. 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. Nothing Follows