ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS I BOARD DATE: 30 April 2019 DOCKET NUMBER: AR20180011580 APPLICANT REQUESTS: award of the Purple Heart. APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: * DD Form 149 (Application for Correction of Military Record) * partial Optional Form 275 (Medical Record Report), dated 15 November 2012 * DD Form 214 (Certificate of Release or Discharge from Active Duty) * DD Form 2860 (Claim for Combat-Related Special Compensation (CRSC), dated 14 February 2014 * two U.S. Army Human Resources Command (HRC), CRSC letters * Disability Evaluation Rating Decision, dated 10 October 2014 * HRC, Awards and Decorations Branch letter 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 (ABCMR) 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 would like to be awarded the Purple Heart for his combat injuries. He believes that not only did he earn it, but he deserves the award for his courageous service. 3. After a prior 8-year period of service in the Regular Army, a nearly 3-year enlistment in the Army National Guard, and a nearly 13 year, non-military, civilian break in service the applicant again enlisted in the Army National Guard (ARNG) on 25 July 2008. 4. He was ordered to active duty in support of Operation Enduring Freedom from 8 September 2011 through 10 June 2012 and served in Afghanistan from 28 October 2011 through 27 March 2012. 5. Subsequent to his deployment, he was retained on active duty to participate in the Reserve Component Warriors in Transition Medical Retention Processing Program for completion of medical care and treatment through 20 October 2013. 6. He provided pages 1-2 of a 5-page Optional Form 275, which shows a Medical Evaluation Board (MEB) convened on 15 November 2012, subsequent to referral for type II diabetes, cubital tunnel syndrome (pressure or stretching of the ulnar nerve in the elbow), and chronic low back pain. The only listed diagnosis on these pages is herniated disc L4-L5 with radiculopathy. The prognosis statement for this diagnosis shows based on his then current symptoms, it was unlikely he would make a full return to duty. 7. His complete MEB and Physical Evaluation Board documentation is not in his available records for review. 8. Headquarters, U.S. Army North (Fifth Army) Orders 275-1102, dated 2 October 2013, show: * he was released form assignment and duty effective 20 October 2013, because of physical disability incurred while entitled to basic pay and under conditions that permit his retirement for permanent physical disability * he was placed on the retired list on 21 October 2013, with a physical disability rating of 60 percent * his disability was not based on injury or disease received in the line of duty 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 as defined by law * his disability did not result from a combat related injury 9. His DD Form 214 shows he was honorably retired on 20 October 2013, after 2 years, 1 month, and 13 days of net active service this period due to permanent disability (enhanced). He was awarded or authorized the: * Afghanistan Campaign Medal with campaign star * Sharpshooter Marksmanship Qualification Badge with automatic rifle bar * Army Commendation Medal (2nd Award) * Army Achievement Medal (3rd Award) * Army Good Conduct Medal (3rd Award) * National Defense Service Medal with bronze service star * Global War on Terrorism Service Medal * Noncommissioned Officer Professional Development Ribbon * Army Service Ribbon * Overseas Service Ribbon (3rd Award) * Driver and Mechanic Badge with mechanic clasp 10. There is no evidence in his military records he ever sustained a wound in action against an enemy or as a result of hostile action or that such an injury required medical treatment which was made a matter of official record. 11. A Department of Veterans Affairs IDES Rating Decision, dated 10 January 2014, shows the applicant was awarded the following service-connected disabilities effective from 21 October 2013: * obstructive sleep apnea, 50 percent * radiculopathy of the left lower extremity, 30 percent * adjustment disorder with anxious mood, 30 percent * herniated disc l4/L5, 20 percent * radiculopathy of the right lower extremity, 20 percent * right wrist fracture, 10 percent * migraine including migraine variants, 10 percent * right cubital tunnel syndrome, 10 percent * right second finger index status post avulsion fracture volar aspect(bone fracture where a fragment of bone tears away from the main bone mass) IP joint residual loss of motion, 0 percent * dry eye syndrome and cataract, nuclear sclerosis (cataract in central part of the natural lens) with pterygium (abnormal superficial growth of conjunctiva (pink tissue growth) of the eye), 0 percent * erectile dysfunction, 0 percent * scars on the right elbow and right wrist, 0 percent * pseudofolliculities barbae (razor bumps), 0 percent 12. A DD Form 2860, shows he submitted a claim for CRSC on 14 February 2014. His claims for CRSC are for the following injuries: * radiculopathy of left lower back, stating he fell while on patrol in Bagram, Afghanistan, on 14 December 2011, and was injured * radiculopathy of right lower back, stating he fell while on patrol in Bagram, Afghanistan, on 14 December 2011, and was injured * adjustment disorder with anxiety, stating he was under stress during his entire tour in combat in Bagram, Afghanistan * herniated disc, stating he fell when on patrol in Bagram, Afghanistan in December 2011, injuring himself * right wrist fracture, stating he fell while on patrol in Bagram Afghanistan in December 2011, injuring himself * migraine headaches, stating he was under stress during his entire tour in combat in Bagram, Afghanistan * right cubital tunnel syndrome, stating he was injured while on patrol in Bagram, Afghanistan in December 2011 13. An HRC, CRSC decision letter dated 4 April 2014, shows that office was unable to verify as a combat-related disability the following, as there was no official documentation to show that a combat-related event caused the conditions: * adjustment disorder with anxious mood * erectile dysfunction * herniated disc L4-L5 * right wrist fracture * migraine including migraine variants * radiculopathy of the left and right lower extremities * right cubital tunnel syndrome 14. An HRC, CRSC decision letter, dated 26 March 2018, shows his claim for CRSC was reviewed and approved. The following conditions were verified as combat-related based on verifying documentation: * right wrist fracture, 10 percent effective November 2013 * right cubital tunnel syndrome, 10 percent from November 2013 – April 2015 * right cubital tunnel syndrome, 30 percent from May 2015 * scars on the right elbow and right wrist, from November 2013 15. It is unknown what documentation was used to verify these disabilities were combat-related, as it is not in the available records for review. 16. An undated letter from HRC, Awards and Decorations Branch, states: a. After a thorough review of the information provided, the award of the Purple Heart for this particular event does not meet the statutory guidance outlined in Army Regulation 600-8-22 (Military Awards). b. Based on his statement, the injuries he incurred, while in the line of duty, were due to an unforeseen accident. Wounds accidentally incurred in a combat zone do not entitle Soldiers to an award of the Purple Heart. He was advised to apply to the ABCMR if he believed this determination to be unjust. 17. Army Regulation 600-8-22 (Military Awards) prescribes Army policy, criteria, and administrative instructions concerning individual and unit military awards. 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. BOARD DISCUSSION: After review of the application and all evidence, the Board determined there is insufficient evidence to grant relief. The applicant’s contentions and medical concerns were carefully considered. Based upon the preponderance of evidence, the Board agreed there is no conclusive evidence that shows he was wounded by enemy forces, which is a regulatory requirement for entitlement 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: 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. 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. //NOTHING FOLLOWS// ABCMR Record of Proceedings (cont) AR20180011580 4 1