ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS IN THE CASE OF: BOARD DATE: 30 September 2019 DOCKET NUMBER: AR20180016728 APPLICANT REQUESTS: reconsideration of his earlier request for award of the Purple Heart. APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: * DD Form 149 (Application for Correction of Military Record), dated 23 November 2018 * Counsel's letter, dated 23 November 2018 * Counsel's brief, dated 28 November 2018, with an Index of Exhibits 1 through 19 * DD Form 214 (Certificate of Release or Discharge from Active Duty) * two DD Forms 215 (Correction to DD Form 214) FACTS: 1. Incorporated herein by reference are military records which were summarized in the previous consideration of the applicant's case by the Army Board for Correction of Military Records (ABCMR) in Docket Number AR20160006204 on 12 April 2018. 2. The applicant provided new evidence not previously considered by the Board that warrants consideration at this time. 3. Counsel states: a. The applicant is an honorably discharged combat engineer seeking reconsideration of his previously denied application for the Purple Heart. b. The Board denied the applicant's previous application based on the term "abrasions" which one medic used to describe his enemy inflicted injuries. His application is based on new evidence that the Board did not consider when it denied his earlier application. c. The new evidence consists of three different Army and Department of Veterans Affairs (VA) records. The new evidence demonstrates his wound is more properly characterized as shrapnel fragment wound, not simply abrasions. His injuries and circumstances surrounding them unequivocally meet the criteria for receiving the Purple Heart. d. On 1 March 2004, the applicant was injured by an IED while he was assigned to B Company, 1st Engineering Battalion, and deployed in support of Operation Iraqi Freedom. He departed Camp Junction City as part of a convoy to conduct route clearance operations near the hazardous area towns of Al-Khalidiya and Habbaniyah. An hour into the mission an IED detonated on the right side of the road with shrapnel striking his vehicle, tearing a hole in the back side and flattening its rear tires. The blast knocked him forward in the vehicle and he temporarily lost consciousness. When he awoke a Soldier informed him that he was bleeding from his neck and jaw area. A fellow Soldier described his injuries as, "He was hit [on the] right side of his neck and jaw by pellet sized shrapnel and debris from the blast." (See Exhibit 9.) The Soldier applied a field dressing to stop the bleeding and stabilize the wounds. e. Upon returning to Camp Junction City, he received further medical treatment, including removal of debris from his wounds. The medic completed a Standard Form 600 (Chronological Record of Medical Care). The medic's handwritten notes are minimal, describing the applicant's abrasions to his mandibular, occipital and neck areas (See Exhibit 7). The speed at which the medics must complete their notes explain why the notes are minimal and contain scrivener's errors, including, for instance, the date of the treatment. For example, the date is marked 1 March 2003 instead of 1 March 2004. f. In 2009, he applied to U.S. Army Human Resources Command (HRC) for the Purple Heart but his application was disapproved due to lack of documentation. He again applied to HRC for the Purple Heart but his application was rejected on procedural grounds because it should have been filed as an appeal rather than a resubmission. g. On 12 April 2018, he applied to the ABCMR but the Board denied his appeal (See Exhibit 12). The only medical document related to his injuries and attached to application was the Standard Form 600 which the medic had quickly completed. Although the Board referenced a Department of Army Form 199 (Physical Evaluation Board), the Board focused on his posttraumatic stress disorder, not his physical injuries from the IED explosion. Thus the Board relied exclusively on the medic's short-hand characterization of the applicant's injuries as "abrasions," rather than what they truly were. The Board noted it would reconsider its decision if he presented new evidence or arguments that were not considered by the Board. h. In this request for reconsideration, he presents new evidence as follows: (1) Medical Evaluation Board Report, dated 27 April 2005, showing his IED injury is best described as a shrapnel wound. According to Dr. X X 's, medical examination, he "suffered mild shrapnel wounds to this neck with persistent numbness of his right mandible that is periodic and intermittent." (See Exhibit 1.) (2) VA Rating Decision, dated 16 November 2005, showing the VA corroborated his "service medical records show that on 1 March 2003 [sic] [should read 1 March 2004] [he] sustained a shell fragment wound to the left mandibal [sic] area as a result of an attack and the detonation of an improvised explosive device." (see Exhibit 2) (3) VA Rating Decision, dated 22 September 2011, showing a 10 percent disability rating based on a shell fragment wound (SFW). The VA Affairs noted this wound was connected to his service in the Gulf War. (see Exhibit 3) i. He is entitled to the Purple Heart because he satisfies the three elements required to obtain the award as documented by the newly produced medical records. He suffered an imbedded shrapnel fragment wound. The enemy caused his injuries. His records show his wound required treatment by a medical officer. He was treated in the field to stop the bleeding and to stabilize the wound and then received further treatment after returning to base. The treatment he received was documented. j. His case is similar to the cases of seven Soldiers who previously applied to the ABCMR for the Purple Heart and were granted their requests. k. The Board should grant him the Purple Heart even if the Board determines the injuries to be abrasions because the Board has consistently granted the award of Purple Heart to service members who have suffered similar enemy inflicted injuries. 4. The applicant enlisted in the Regular Army on 14 November 2002. He deployed to Iraq from 3 September 2003 to 18 September 2004. 5. A Standard Form 600 shows he was treated by Army medical personnel on 1 March 2003 (sic) for abrasions to the mandibular, occipital, and neck areas. This form also shows the abrasions resulted from an IED (see Exhibit 7). 6. On 20 June 2005, a Physical Evaluation Board (PEB) evaluated him from post- traumatic stress disorder (PTSD). The PEB found him physically unfit and recommended a combined disability rating of 0 percent with separation from active duty with severance pay (see Exhibit 8). 7. The PEB Proceedings, Disability Description noted the applicant's PTSD arose as a result of several intense combat situations as well as minor injuries from an IED. He concurred with the PEB and waived a formal hearing of his case. 8. On 25 July 2005, he was honorably discharged by reason of physical disability with severance pay. His DD Form 214 (Certificate of Release or Discharge from Active Duty) does not show he was awarded or authorized the Purple Heart. 9. A VA Rating Decision, dated 16 November 2005, shows he was granted service connection for PTSD with a disability rating of 50 percent effective 26 July 2005 and for shell fragment wound (SFW) to the right lower jaw with residual scar and intermittent paresthesia with a disability rating of 10 percent (see Exhibit 2). 10. On 19 November 2009, the Awards and Decorations Branch, HRC, denied his request for award of the Purple Heart. This office stated, "There is no documentation of the diagnosis and treatment of an injury(ies) caused by the enemy which was required of and provided by medical personnel. Therefore, this does not meet the criteria for award of the Purple Heart." 11. On 17 June 2011, he was issued two DD Forms 215 (Correction to DD Form 214) that amended his DD Form 214 to show, in part, in: * item 9 (Command to Which Transferred) – U.S. Army Reserve Control Group (Retired Reserve) * item 18 (Remarks) – deleted entry "SEVERANCE PAY 10173.60" and added "RETIRED LIST GRADE SFC (Sergeant First Class)" * item 23 (Type of Separation) – "RETIREMENT" * item 28 (Narrative Reason for Separation) – "DISABILITY TEMPORARY//NOTHING FOLLOWS" 12. A VA Rating Decision, dated 22 September 2011, shows his disability rating for PTSD was increased to 100 percent on 20 March 2009 and SFW to his right lower jaw with residual scar and intermittent paresthesia remained 10 percent (see Exhibit 3). 13. A DA Form 2823 (Sworn Statement), dated 22 July 2014, from Staff Sergeant (SSG) X X , described incidents that occurred on 1 March 2004 as follows (see Exhibit 9): * on 1 March 2004, First Platoon, B Company was assigned a mission to conduct route clearance on route mobile near Al-Khalidiyah, Iraq * the applicant was among his crew who conducted the route mobile * team noticed two piles of sand off the road and they moved to the left lane when there was an explosion * he remembered falling to the driver's side, he heard screeching tires, and he checked on his crew to see if there were any injuries * no one in the vehicle was seriously injured, but the crew sustained minor injuries from shrapnel and debris from the explosion * he sustained injuries to his right arm, right side of his head, and right shoulder * the applicant, who was on the rear left side of the vehicle, was hit on the right side of his neck and jaw by pellet size shrapnel and debris from the blast * the applicant received a field dressing to stop the bleeding on site and he was taken to the Medical Aid Center to be checked for concussion and to have the wounds sustained cleaned and bandaged 14. A DA Form 2823, dated 8 October 2014, from X X X , states he served in the same platoon as the applicant (see Exhibit 11). His unit was deployed to Camp Junction City near the Iraqi towns of Khalidiya and Habbaniyah. He also stated: * he departed to Camp Junction City with the applicant in a convoy of five high mobility multipurpose wheeled vehicles (HMMWVs) in which he rode in the driver seat of the convoy performing rear security * the enemy placed an IED on the right side of the road inside a sand pile that detonated * the blast and shrapnel from the IED struck the back right side of the HMMWV in which the applicant was riding * he approached the applicant and told him that he was bleeding from the side of his neck and jaw area; he applied a field dressing to his neck to stop the bleeding and stabilize the wounds until further medical treatment could be rendered * shrapnel from the IED blast tore a hole in the back of the HMMWV and caused both rear tires of the Humvee to flatten * shrapnel from the blast also damaged the Kevlar helmet and face of the HMMWV gunner 15. On 21 January 2015, the Awards and Decorations Branch, HRC, returned the applicant's request for award of the Purple Heart without action. This office stated, "The Awards and Decorations Branch does not reconsider resubmissions disapproved by this office; however, you have the right to appeal to the [ABCMR]." 16. Counsel provided five previous ABCMR decisions (ABCMR Docket Number AR20150009357, dated 27 October 2015; ABCMR Docket Number AR20150004229, dated 10 November 2015; ABCMR Docket Number AR20160000815, dated 23 May 2017, AR20160004008, dated 7 December 2017, and ABCMR Docket Number AR20170013642, dated 11 January 2018) pertaining to award of the Purple Heart due to incurred abrasions/lacerations which he believes are similar to the applicant's case (see Exhibit 11 through Exhibit 17). 17. On 12 April 2018 and in ABCMR Docket Number AR20160006204, the ABCMR denied the applicant's request for award of the Purple Heart (see Exhibit12). BOARD DISCUSSION: 1. After reviewing the application and all supporting documents, the Board found the requested relief is warranted. 2. The Board agreed that the new evidence provided by the applicant and his counsel provide a more complete picture of the cause and severity of the injury the applicant incurred on 1 March 2004. In particular, the Board noted the Medical Evaluation Board's report that the applicant had suffered shrapnel wounds to his neck that resulted in persistent numbness of his right mandible. The Board agreed this evidence, along with the witness statements and other new evidence, supports the conclusion that a preponderance of the evidence indicates his injury met the criteria for award of the Purple Heart. 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 awarding him the Purple Heart for the injury he incurred on 1 March 2004 and adding the Purple Heart to his DD Form 214. X CHAIRPERSON 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. Army Regulation 15-185 (Army Board for Correction of Military Records) prescribes the policies and procedures for correction of military records by the Secretary of the Army acting through the ABCMR. The ABCMR begins its consideration of each case with the presumption of administrative regularity. The applicant has the burden of proving an error or injustice by a preponderance of the evidence. 2. Army Regulation 600-8-22 (Military Awards), in effect at the time, provided that the Purple Heart is an entitlement and differs from all other awards. a. The Purple Heart is awarded to members of the Armed Forces 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, have been wounded, were killed, or who have died or may hereafter die of wounds received under any of the following circumstances: (1) in any action against an enemy of the United States; (2) in any action with an opposing armed force of a foreign country in which the Armed Forces of the United States are or have been engaged; (3) while serving with friendly foreign forces engaged in an armed conflict against an opposing armed force in which the United States is not a belligerent party; (4) as the result of an act of any such enemy of opposing Armed Forces; (5) as the result of an act of any hostile foreign force; (6) after 28 March 1973, as a result of an international terrorist attack against the United States or a foreign nation friendly to the United States, recognized as such an attack by the Secretary of the Army, or jointly by the Secretaries of the separate Armed Services concerned if persons from more than one service are wounded in the attack; (7) after 28 March 1973, as a result of military operations while serving outside the territory of the United States as part of a peacekeeping force; (8) service members who are killed or wounded in action by friendly fire; (9) a former prisoner of war who was wounded before 25 April 1962 while held as a prisoner of war (or while being taken captive); or (10) service members killed or wounded in attacks by foreign terrorist organizations. 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: (1) Injury caused by enemy bullet, shrapnel, or other projectile created by enemy action. (2) Injury caused by enemy-placed trap or mine. (3) Injury caused by enemy-released chemical, biological, or nuclear agent. (4) Injury caused by vehicle or aircraft accident resulting from enemy fire. (5) Concussion injuries caused as a result of enemy-generated explosions. (6) 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. e. Examples of injuries or wounds which clearly do not justify award of the PH are as follows: (1) Frostbite (excluding severe frostbite requiring hospitalization from 7 December 1941 to 22 August 1951). (2) Trench foot or immersion foot. (3) Heat stroke. (4) Food poisoning not caused by enemy agents. (5) Chemical, biological, or nuclear agents not released by the enemy. (6) Battle fatigue. (7) Disease not directly caused by enemy agents. (8) Accidents, to include explosive, aircraft, vehicular, and other accidental wounding not related to or caused by enemy action. (9) Self-inflicted wounds, except when in the heat of battle and not involving gross negligence. (10) Post traumatic stress disorders. (11) Airborne (for example, parachute/jump) injuries not caused by enemy action. (12) Hearing loss and tinnitus (for example: ringing in the ears). (13) 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. (14) Abrasions and lacerations (unless of a severity to be incapacitating). (15) Bruises (unless caused by direct impact of the enemy weapon and severe enough to require treatment by a medical officer) (16) Soft tissue injuries (for example, ligament, tendon or muscle strains, sprains, and so forth). (17) First degree burns. f. 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. Commanders must also take into consideration the circumstances surrounding an injury, even if it appears to meet the criteria. 3. Army Regulation 600-8-22, currently in effect, states the Purple Heart 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 Secretary of the Army (SECARMY) who, after 5 April 1917, has been wounded, killed, or who has died or may hereafter die of wounds received, under any of the following circumstances: a. In any action against an enemy of the United States. b. In any action with an opposing armed force of a foreign country in which the Armed Forces of the United States are or have been engaged. c. While serving with friendly foreign forces engaged in an armed conflict against an opposing armed force in which the United States is not a belligerent party. d. As the result of an act of any such enemy or opposing Armed Forces. e. As the result of an act of any hostile foreign force. f. After 28 March 1973, as a result of an international terrorist attack against the United States or a foreign nation friendly to the United States, recognized as such an attack by the SECARMY, or jointly by the Secretaries of the separate armed Services concerned if persons from more than one Service are wounded in the attack. g. After 28 March 1973, as a result of military operations while serving outside the territory of the United States as part of a peacekeeping force. h. After 7 December 1941, pursuant to Title 10, U.S. Code, section 1129, as a result of friendly fire provided the member was killed or wounded in action by friendly weapon fire while directly engaged in armed conflict, other than the result of an act of an enemy of the United States, unless (in the case of a wound) the wound is the result of the willful misconduct of the member. i. On or after 7 December 1941, to a member who is killed or dies while in captivity as a Prisoner of War (POW) under circumstances establishing eligibility for the POW Medal, unless compelling evidence is presented that shows the member’s death was not the result of enemy action. j. On or after 11 September 2001, pursuant to Title 10, U.S. Code, section 1129a, to a member killed or wounded in an attack by a foreign terrorist organization in circumstances where the death or wound is the result of an attack targeted on the member due to such member’s status as a member of the Armed Forces, unless the death or wound is the result of the member’s willful misconduct. (1) An attack by an individual or entity will be considered to be an attack by a foreign terrorist organization if— (a) The individual or entity was in communication with the foreign terrorist organization before the attack; and (b) The attack was inspired or motivated by the foreign terrorist organization. (2) The term "foreign terrorist organization" is defined in the glossary. k. Pursuant to Public Law 104–106, a former POW who was wounded before 25 April 1962 while held as a POW, or while being taken captive, will be treated in the same manner as a former POW who is wounded on or after that date while held as a POW. A person is considered to be a former POW if he/she is eligible for the POW Medal pursuant to paragraph 2–10. (3) To qualify for award of the Purple Heart the wound must have been of such severity that it required treatment, not merely examination, by a medical officer. A wound is defined as an injury to any part of the body from an outside force or agent. A physical lesion is not required. (a) Treatment of the wound will be documented in the member’s medical and/or health record. (b) Award may be made for a wound treated by a medical professional other than a medical officer provided a medical officer includes a statement in the member’s medical record that the severity of the wound was such that it would have required treatment by a medical officer if one had been available to provide treatment. (c) A medical professional is defined as a civilian physician or a physician extender. Physician extenders include nurse practitioners, physician assistants, and other medical professionals qualified to provide independent treatment (to include Special Forces medics). Medics (such as combat medics - MOS 68W) are not physician extenders. (4) A medical officer is defined as a physician with officer rank. The following are medical officers: (a) An officer of the medical corps of the Army. (b) An officer of the medical corps of the U.S. Navy. (c) An officer in the U.S. Air Force designated as a medical officer in accordance with Title 10, U.S. Code 101. l. A Purple Heart is authorized for the first wound suffered under conditions indicated above; for each subsequent award an oak leaf cluster will be awarded to be worn on the medal or ribbon. No more than one award will be made for more than one wound or injury received at the same instant or from the same missile, force, explosion, or agent. m. When contemplating eligibility for the Purple Heart, the two critical factors commanders must consider is the degree to which the enemy or hostile force caused the wound, and was the wound so severe that it required treatment by a medical officer. n. Some examples of enemy-related actions which justify eligibility for the Purple Heart are as follows: action. ( (1) Inju ry cause d by enem y bullet, shrap nel, or other projec tile create d by enem y (2) Inju ry cau sed by ene my em pla ced tra p, min e or oth er imp rovi sed exp losi ve device. (3) Injury caused by chemical, biological, or nuclear agent released by the enemy. (4) Injury caused by vehicle or aircraft accident resulting from enemy fire. (5) Smoke inhalation injuries from enemy actions that result in burns to the respiratory tract. (6) Concussions (and/or mild traumatic brain injury) caused as a result of enemy-generated explosions that result in 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. Refer to paragraph 2–8l for additional information. o. Some examples of injuries which do not justify eligibility for the Purple Heart are as follows: (1) Frostbite (excluding severe frostbite requiring hospitalization from 7 December 1941 to 22 August 1951). (2) Trench foot or immersion foot. (3) Heat stroke. (4) Food poisoning not caused by enemy agents. (5) Exposure to chemical, biological, or nuclear agents not directly released by the enemy. (6) Battle fatigue, neuro-psychosis and post-traumatic stress disorders. (7) Disease not directly caused by enemy agents. (8) Accidents, to include explosive, aircraft, vehicular, and other accidental wounding not related to or caused by enemy action. (9) Self-inflicted wounds, except when in the heat of battle and not involving gross negligence. (10) First degree burns. (11) Airborne (for example, parachute/jump) injuries not caused by enemy action. (12) Hearing loss and tinnitus (for example: ringing in the ears, ruptured tympanic membrane). (13) mild TBI that does not 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. (14) Abrasions or lacerations (unless of a severity requiring treatment by a medical officer). (15) Bruises or contusions (unless caused by direct impact of the enemy weapon and severe enough to require treatment by a medical officer). (16) Soft tissue injuries (for example, ligament, tendon or muscle strains, sprains, and so forth). p. It is not intended that such a strict interpretation of the requirement for the wound to be caused by direct result of hostile action be taken that it would preclude the award being made to deserving personnel. Commanders must take into consideration the circumstances surrounding a wound. 4. Title 38, U.S. Code, sections 1110 and 1131, permit the Affairs (VA) to award compensation for disabilities which were incurred in or aggravated by active military service. The VA awards disability ratings to veterans for conditions that it determines were incurred during military service and subsequently affect the individual's civilian employability.