ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS IN THE CASE OF: BOARD DATE: 20 August 2019 DOCKET NUMBER: AR20180010813 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) * Enlisted Records Brief (ERB) * DA Form 4187 (Personnel Action) * DA Form 2823 (Sworn Statement (X___)) * DA Form 2823 (Sworn Statement (X___)) * DA Form 2823 (Sworn Statement (X___)) * Memorandum from Intelligence Officer (X___) * DA Form 1156 (Casualty Feeder Card) * Letter of Lateness * Record of Medical Care * Excerpt of Department of Veterans Affairs (VA) Ratings * Memorandum from Human Resources Command (HRC) Awards Branch * 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, he is requesting the award of the PH for injuries sustained during Operation Enduring Freedom. He has been working administratively since 1 May 2010 to get the issue resolved. 3. The applicant provides: a. ERB, dated 7 June 2012, which is a snapshot of the applicant’s military service. b. DA Form 4187, dated, 12 April 2012, which details the facts and circumstances regarding the incident which took place on 28 May 2009. The Battalion and Brigade Commanders recommended approval, and the Commanding General of 4th Infantry Division approved the action. c. DA Form 2823 (X___), dated 10 May 2010, which states the author and the applicant were involved in a fire fight with enemy combatants and the applicant suffered a gunshot wound to his right hand, and received treatment in the middle of the engagement by the medic within the convoy. The person administering the oath did not properly complete the “Authority to Administer Oath.” d. DA Form 2823 (X___), dated 22 April 2010, which states the author and the applicant were involved in a fire fight with enemy combatants and the applicant fell to the ground stating he had been shot. The medic on the scene rushed to his aid to administer first aid for a gunshot wound to his right hand. The person administering the oath did not properly complete the “Authority to Administer Oath.” e. DA Form 2823 (X___), dated 20 May 2010, which states that during the fire fight with the enemy combatants, the author tried to gain situational awareness by checking on the Soldiers within the convoy, once he returned to his vehicle, driven by the applicant, he saw the applicant with a bandage on his right hand, stating he had been shot in the hand. The person administering the oath did not properly complete the “Authority to Administer Oath.” f. Memorandum from Intelligence Officer (X___), dated 10 May 2010, which states that 2nd Platoon, Bravo Company, 1-4 Infantry Battalion was involved in a direct fire engagement on 28 May 2009 in Zabul Province, Afghanistan while deployed in support of the International Security Assistance Force (ISAF) under Operation Enduring Freedom (OEF). g. DA Form 1156, dated 28 May 2009, which states that while on patrol in Zabul Providence, the applicant dismounted his vehicle, returned fire, and received a gunshot wound (GSW) to his hand and front plate of his improved outer tactical vest (IOTV). h. Letter of Lateness, dated 17 April 2012, which states the PH packet is late due to the company commander being killed in action by an improvised explosive device (IED) while carrying the original packet to higher headquarters for signature. i. Record of Medical Care, dated 29 May 2009. j. Excerpt of VA Ratings, which states that service connection for residuals and for scar residuals of gunshot wound to the right thumb has been established as directly related to military service. k. Memorandum from HRC Awards Branch, dated 27 September 2012, which states the request for award of the Purple Heart for injuries received while deployed in support of Operation Iraqi Freedom is returned without action due to the lack of required documentation. 4. A review of his service records shows: a. He enlisted on 11 July 2006 in to the Wisconsin Army National Guard (WIARNG). b. His NGB Form 22 (Report of Separation and Record of Service), reflects that he was honorably discharged from the WIARNG on 14 August 2007 for failure to attend Initial Entry Training (IET) within 24 months. c. On 24 September 2007, he enlisted in to the Regular Army (RA). He served in Afghanistan from 26 January 2009 to 17 September 2009. d. On 30 June 2009, he received permanent orders number 181-046, which authorized wear of the Combat Action Badge for personally engaging or being engaged by an armed enemy on 24 April 2009. e. On 5 May 2010, he was discharged for immediate reenlistment. He reenlisted in to the RA on 6 May 2010. He served in Afghanistan from 26 May 2011 to 25 May 2012. f. On 5 September 2012, he was honorably discharged under the provisions of AR 635-200, paragraph 5-8. His DD Form 214 also shows he was awarded or authorized: * Army Commendation Medal (2nd Award) * Army Achievement Medal (2nd Award) * Army Good Conduct Medal * National Defense Service Medal * Afghanistan Campaign Medal with Two Campaigns Stars (2nd Award) * Global War on Terrorism Service Medal * Army Service Ribbon * Overseas Service Ribbon (3rd Award) * NATO Medal (2nd Award) * Combat Action Badge * Driver and Mechanic Badge with Driver – Tracked Clasp * Driver and Mechanic Badge with Driver – Wheeled Clasp * Driver and Mechanic Badge with Mechanic Clasp 5. On 7 March 2016, he submitted a Congressional Inquiry in support of his award of the PH to the congressional representative of the 4th district of Wisconsin. Human Resources Command (HRC) acknowledged receipt of the inquiry on 29 April 2016, and responded notifying the congressional representative that they have not yet received military medical documentation signed by a medical officer, which cites the applicant's initial and follow-up treatment for qualifying injuries received as a direct result of enemy action. 6. On 3 February 2017, he submitted a Congressional Inquiry in support of his award of the PH to the congressional representative of the 4th district of Wisconsin. ARBA acknowledged receipt of the inquiry on 15 February 2017, and responded notifying the congressional representative that over 22,000 applications are processed a year and based on that volume and our commitment to justice, we strive to complete most applications within 12 months of its receipt date. 7. On 16 August 2018, ARBA again notified the congressional representative that over 22,000 applications are processed a year and based on that volume and our commitment to justice, we strive to complete most applications within 12 months of its receipt date. 8. On 14 March 2019, the Deputy District Director for the congressional representative of the 4th district of Wisconsin, emailed a follow up inquiry in reference to the applicant’s pursuit of the award of a PH. ARBA acknowledged receipt of the inquiry on 19 March 2019, and responded notifying the congressional representative that their constituent has an open application currently processing for consideration by the Board. We are aware that this case has taken a long time to complete, but the application is being processed thoroughly and a decision will be provided as soon as it is reached. 9. Army Regulation 600-8-22 (Military Awards) states 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 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. When contemplating an award of the Purple Heart, 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 award. b. Examples of injuries or wounds that clearly do not justify award of the Purple Heart include post-traumatic stress disorders, hearing loss and tinnitus, mild TBI 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. 10. By regulation (AR 600-8-22), 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 11. By law and regulation, any member of the armed force who has been wounded in action against an enemy of the United States, a wound for which the award is made must have required treatment by a medical officer, shall be awarded the PH. 12. Army Directive 2011-07 (Awarding the Purple Heart), dated 18 March 2011, provides clarifying guidance to ensure the uniform application of advancements in medical knowledge and treatment protocols when considering recommendations for award of the Purple Heart. a. Approval of the Purple Heart requires the following factors among others outlined in Department of Defense Manual 1348.33 (Manual of Military Decorations and Awards), Volume 3, paragraph 5c: wound, injury or death must have been the result of an enemy or hostile act, international terrorist attack, or friendly fire and the wound for which the award is made must have required treatment, not merely examination, by a medical officer. Additionally, treatment of the wound shall be documented in the Soldier's medical record. b. Award of the Purple Heart may be made for wounds treated by a medical professional other than a medical officer provided a medical officer includes a statement in the Soldier’s medical record that the extent of the wounds was such that they would have required treatment by a medical officer if one had been available to treat them. By regulation, AR 600-8-22, the PH was originally 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 3, on 22 February 1932. The PH is awarded in the name of the President of the United States to any member of an Armed Force of the United States under the jurisdiction of the SECARMY who, after 5 April 1917, has been wounded, killed, or who has died or may hereafter die of wounds received. BOARD DISCUSSION: After reviewing the application and all supporting documents, the Board determined relief was not warranted. Based upon the severity of the injury incurred by the applicant being minor in nature, in the Board’s opinion, and a lack of a statement within the applicant medical record stating the injuries would have required medical officer attention if one was available, the Board concluded that the injuries incurred by the applicant did not rise to the level outlined within regulatory guidance. 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. 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 600-8-22 (Military Awards) prescribes Army policy, criteria, and administrative instructions concerning individual and unit military awards. 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 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. b. A wound is defined as an injury to any part of the body from an outside force or agent sustained under one or more of the conditions listed above. A physical lesion is not required. However, the wound for which the award is made must have required treatment, not merely examination, by a medical officer. Additionally, treatment of the wound will be documented in the Service member’s medical and/or health record. Award of the Purple Heart may be made for wounds treated by a medical professional other than a medical officer, provided a medical officer includes a statement in the Service member’s medical record that the extent of the wounds was such that they would have required treatment by a medical officer if one had been available to treat them. c. When contemplating an award of the Purple Heart, 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 award. d. Examples of injuries or wounds that clearly do not justify award of the Purple Heart include post-traumatic stress disorders, hearing loss and tinnitus, mild TBI 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. 3. Army Directive 2011-07 (Awarding the Purple Heart), dated 18 March 2011, provides clarifying guidance to ensure the uniform application of advancements in medical knowledge and treatment protocols when considering recommendations for award of the Purple Heart: a. Approval of the Purple Heart requires the following factors among others outlined in Department of Defense Manual 1348.33 (Manual of Military Decorations and Awards), Volume 3, paragraph 5c: wound, injury or death must have been the result of an enemy or hostile act, international terrorist attack, or friendly fire and the wound for which the award is made must have required treatment, not merely examination, by a medical officer. Additionally, treatment of the wound shall be documented in the Soldier's medical record. b. Award of the Purple Heart may be made for wounds treated by a medical professional other than a medical officer provided a medical officer includes a statement in the Soldier’s medical record that the extent of the wounds was such that they would have required treatment by a medical officer if one had been available to treat them.