ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS IN THE CASE OF: BOARD DATE: 28 April 2020 DOCKET NUMBER: AR20180016375 APPLICANT REQUESTS: * correction of his medical records to show he sustained head trauma, concussion, and dizziness in combat from an improvised explosive device (IED) * award of the Purple Heart APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: * DD Form 149 (Application for Correction of Military Record under the Provisions of Title 10, U.S. Code, Section 1552) * Self-Authored Statement, undated * Standard Forms 600 (Chronological Record of Medical Care), dated 2 through 3 November 2009 * Multiple Witness Statements, dated 1 June 2010 * DD Form 214 (Certificate of Release or Discharge from Active Duty) * Letter, U.S. Army Resources Command (HRC), dated 6 February 2018 REFERENCES: 1. Title 10, U.S. Code, section 1552(b), provides that applications for correction of military records must be filed within 3 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 3-year statute of limitations if the Board determines it would be in the interest of justice to do so. 2. Army Regulation 600-8-22 (Military Awards) provides that 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. a. The Purple Heart differs from all other decorations in that an individual is not "recommended" for the decoration; rather, he or she is entitled to it upon meeting specific criteria. 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 below. 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. The key issue commanders must take into consideration when contemplating an award of this decoration 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 sole justification for award. d. Examples of enemy-related injuries which clearly justify award of the Purple Heart are as follows: * 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 (TBI) 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 e. Examples of injuries or wounds which clearly do not justify award of the Purple Heart are as follows: * frostbite (excluding severe frostbite requiring hospitalization from 7 December 1941 to 22 August 1951) * trench foot or immersion foot * heat stroke * food poisoning not caused by enemy agents * chemical, biological, or nuclear agents not released by the enemy * battle fatigue * disease not directly caused by enemy agents * accidents, to include explosive, aircraft, vehicular, and other accidental wounding not related to or caused by enemy action * self-inflicted wounds, except when in the heat of battle and not involving gross negligence * post-traumatic stress disorder * airborne (for example, parachute/jump) injuries not caused by enemy action * hearing loss and tinnitus (for example, ringing in the ears) * 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 * abrasions and lacerations (unless of a severity to be incapacitating) * bruises (unless caused by direct impact of the enemy weapon and severe enough to require treatment by a medical officer) * soft tissue injuries (for example, ligament, tendon, or muscle strains, sprains, and so forth) * first degree burns 3. The Military Acute Concussion Evaluation (MACE), is a standardized mental status examination used to evaluate mild TBI, or concussion, in a combat or other deployed setting. FACTS: 1. The applicant did not file within the 3-year time frame as provided in Title 10, U.S. Code, section 1552(b); however, the 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 was wounded in action in Afghanistan on 1 November 2009. a. He sustained cuts and swelling to his face that were caused by shrapnel from an IED explosion. When he arrived at the aid station, he reported to the medical staff that he vomited and was feeling dizzy. b. In November 2009 while assigned to Company A, 710th Brigade Support Battalion, 3d Infantry Brigade Combat Team, 10th Mountain Division, he was the gunner in the second truck responding to a Global Response Force mission in the Logar Province of Afghanistan when the first truck hit an IED. He was struck in the face by shrapnel, which caused facial wounds and dizziness. He was transported to a medical facility, treated for his wounds, and tested for a TBI. c. Since he was treated for injuries and awarded the Combat Action Badge, he should have been awarded the Purple Heart. However, HRC denied his request on the basis that his medical documentation does not reflect a diagnosis or treatment of a concussion, TBI, or other qualifying wounds received as a result of enemy action. The injuries from the IED attack qualify him for award of the Purple Heart. 3. The applicant arrived in Afghanistan on 6 April 2009. 4. The Standard Form 600 (Chronological Record of Medical Care), dated 2 November 2009, shows he was treated at the 710th Brigade Support Battalion Clinic on 2 November 2009 for an injury from terrorist explosion (IED). a. He reported no dizziness, no change in thought patterns, and no decrease in concentrating ability. He reported that "in the moment" he was disoriented, because he didn't know what happened. He reported no headache, no vision problems, no hearing loss, no tinnitus, no nausea, and no vomiting. b. His physical trauma consisted of an injury from detonation of an unidentified unexploded ordnance. c. The Military Acute Concussion Evaluation (MACE) showed a score of 25/30. d. Additional medical notes state: * no significant TBI risk factors, no acute symptoms, normal MACE and neurological examination * limited duty for 24 hours * he was prescribed to take Tylenol as needed for pain * follow-up for repeat MACE tomorrow 5. The Standard Form 600, dated 3 November 2009, states his chief complaint is that when the first vehicle in his convoy struck an IED, "shrapnel hit him in the face causing scratches." He was returned to duty and instructed to return to the clinic if symptoms arise. He was released without limitations and further instructed to follow up as need with his primary care manager. His assessment shows: * no concussion * no concussion with no loss of consciousness * no concussion with brief loss of consciousness (under 1 hour) * no amnesia * no post-traumatic amnesia 6. His records do not show additional medical treatment was required or provided immediately following the period he was evaluated and treated at the medical clinic on 3 November 2009. 7. Task Force Spartan Permanent Orders Number 310-023, dated 6 November 2009, awarded him the Combat Action Badge for the period 1 November 2009. 8. The witness statement from Specialist H____, dated 1 June 2010, states he was serving as the driver for the lead convoy vehicle when it struck a command-wired IED on 1 November 2009 at approximately 2300 hours. The blast sent pieces of rock and asphalt into the face of the second vehicle's gunner, the applicant. The medic in their convoy, Specialist R____, rendered aid to the applicant during the recovery. 9. The witness statement from Staff Sergeant R____, dated 1 June 2010, states he was in the lead convoy vehicle when it struck an IED on 1 November 2009 at approximately 2300 hours. No one in his vehicle suffered any life-threatening injuries. However, the second vehicle's gunner, the applicant, "had a few shrapnel wounds to the face." Their medic, Specialist R____, treated the applicant on site and their convoy drove on to recover the damaged vehicle. They returned to the base at approximately 0800 and went straight to the aid station and were evaluated by the medics. 10. The witness statement from First Lieutenant B____, dated 1 June 2009, states on the night of 1 November 2009, his platoon was tasked with the mission of conducting an emergency recovery of a vehicle that had been destroyed by an IED. At approximately 2300, his convoy was hit with a command-wired IED, which primarily struck the lead vehicle with an approximate 20-meter distance to the second vehicle. The convoy stopped, reinforced security, and brought their medic to assess casualties. During the blast, the applicant was serving as gunner in the second vehicle and received several lacerations to his face. Special R____ provided aid to the applicant. After the battle damage repair was completed, they continued on their mission and returned to the base, where the applicant's facial wounds were further treated. All were tested for TBI and returned to duty. 11. On 18 December 2010, he was honorably released from active duty. His awards include the Afghanistan Campaign Medal with Campaign Star and Combat Action Badge. His DD Form 214 does not show award of the Purple Heart. The remarks block of his DD Form 214 shows his service in Afghanistan from 6 April 2009 through 10 December 2009. 12. On 6 February 2018, HRC responded the applicant's Senator's inquiry regarding the applicant's desire to obtain an award of the Purple Heart: a. The Chief, Awards and Decorations Branch, stated a thorough review of the documentation provided to HRC in April 2011 determined the injuries the applicant received on 1 November 2009 do not meet the statutory guidance for the award. The medical documentation provided does not reflect a diagnosis or treatment of a concussion, TBI, or other qualifying wounds received as a result of enemy action. b. If the applicant feels the response is unfair or unjust, his final administrative recourse is to petition the ABCMR. BOARD DISCUSSION: 1. After reviewing the application and all supporting documents, the Board found that relief was not warranted. Per the regulatory guidance on awarding the Purple Heart, the applicant must provide or have in his service records substantiating evidence to verify that he was injured, 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. 2. In events involving TBI and other similar injuries, the applicant’s record must show that the 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. After reviewing the application and all supporting documents, the Board found insufficient medical evidence to meet the regulatory standard for the Purple Heart and thus recommended denying the request. BOARD VOTE: Mbr 1 Mbr 2 Mbr 3 : : : GRANT FULL RELIEF : : : GRANT PARTIAL RELIEF : : : GRANT FORMAL HEARING : XXX :XX :XXX 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. //NOTHING FOLLOWS// ABCMR Record of Proceedings (cont) AR20180016375 7 1