ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS IN THE CASE OF: BOARD DATE: 18 January 2019 DOCKET NUMBER: AR20190000334 APPLICANT REQUESTS: Award of the Purple Heart. APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: * DD Form 149 (Application for Correction of Military Record) * Standard Form (SF) 180 (Request Pertaining to Military Records) * Sworn Statement by the Applicant * four witness statements * Service Medical Records * Temporary Change of Station (TCS) Orders History 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 was denied the Purple Heart because of administrative errors and negligence. He would like the Purple Heart to be added to his DD Form 214 (Certificate of Release or Discharge from Active Duty) and to be awarded to him for injuries sustained in combat in Iraq in 2006. The administrative personnel for his unit failed to add him to the casualty list when he was medically evacuated out of country to Germany from Balad, Iraq. 3. The applicant provides: a. SF Form 180, which shows that he requested daily logs, morning reports, and injury reports through the National Archives and Records Administration. b. A sworn statement written by him, which summarizes a route clearance operation in Iraq when he was involved in an Improvised Explosive Device (IED) detonation to his vehicle while he was the driver. The incident happened at the end of June in 2006. He suffered a headache and soreness in the next week and upper to mid back (pain). He thought it was just whiplash so he let it go. The pain worsened so he was seen two weeks later. He was seen two more times for the same pain. The doctor referred him to Kuwait for an MRI and he was re-routed to Germany (medical evacuated in his terms). The x-rays showed a small disc bulge. It was a nonsurgical injury, but may become surgical if not treated. He was then sent to Fort Leonard Wood for more treatment. He was also in physical therapy. c. A self-authored statement which states, in pertinent part, that he was involved in an IED incident in July of 2006. His vehicle, in which he was the driver, was struck and he immediately suffered headaches and whiplash type symptoms. He denied medical attention at the time and when the adrenaline wore off, sought treatment for headaches, and neck and back pain. He states that his unit should have placed him on the casualty list when he was transported to Germany for further treatment, but they did not. While being evaluated in Germany, they found a bulging disc and determined he would not be able to return to theater. He e-mailed the administrative specialist and informed him that his injuries were caused by his IED attack and was notified that the administrative specialist would complete the paperwork for the Purple Heart. d. A statement from Mr. NG, which states, in pertinent part, that he was a witness to the mission and injuries sustained during their tour in Iraq that lead to the applicant being sent to Germany and ultimately back home. During the mission, the applicant’s vehicle was struck by an IED and after some time, the applicant was told he could not return to duty in Iraq. He believes that the applicant’s injuries were a direct cause of that blast that happened and he deserves the Purple Heart. e. A statement from Mr. DY, which states, in pertinent part, that in July 2006 he saw the lead vehicle of his patrol encounter a massive blast on the passenger side where the applicant was sitting. He remembers the applicant saying that his head was pounding after returning to their room and that his neck and back felt really stiff and sore. After a few days, the pain started to get severe and the applicant decided to get it checked. f. A statement from Mr. JP, which states, in pertinent part, that in July 2006 they experienced an IED incident and the days following the incident, the applicant experienced pain. It was clear to him that the applicant’s injury was more than the eye could see. He was sent to Germany for further treatment. g. A letter from Captain JP to the applicant’s Congressional Representative, which states, in pertinent part, the applicant’s vehicle was struck by an IED that should have killed everyone inside. The applicant began to have symptoms of a major injury, including headaches which is a common sign of a brain injury and he suffered from pain in his neck and back. When the applicant returned to North Dakota, he sought treatment and the doctor found three compression fractures in his back as well as a bugled disc in his neck. He outlines the criteria for the Purple Heart and notes that he believes the applicant deserves the Purple Heart. h. Service Medical Records which include: * DD Form 689 (Individual Sick Call Slip) and medical record, dated 31 July 2006 for moderate neck and back pain * Patient Appointment History * Command Clearance Memorandum, dated 7 August 2006 * Aeromedical Evacuation Patient Record, which shows chronic back pain * Patient Movement Request to Germany for neck pain and upper back pain * DA Form 7349 (Initial Medical Review – Annual Medical Certificate), dated 24 August 2006, which shows he was experiencing neck and back pain * Report of Medical Assessment, which shows he reported a bulged disc in his cervical spine and a healthcare provider comment which shows a neck injury from June 2006 for an IED * Health records * DA Form 2173 (Statement of Medical Examination and Duty Status), dated 31 August 2006, which shows he was seen for an injury at the end of June 2006 from an IED explosion * Memorandum, subject: Approved Line of Duty, dated 6 September 2006, which shows an approved line of duty for back pain * Post-Deployment Health Assessment in which a healthcare provider comment states chronic neck and back pain i. TCS Orders History, which shows he was deployed in support of Operation Iraqi/Enduring Freedom and was extended for further medical care. 4. A review of his service records shows the following: a. He enlisted in the ND Army National Guard (NDARNG) on 21 August 2001. b. He entered active duty on 5 August 2005 in support of Operation Iraqi Freedom. c. He was honorably released from active duty on 3 October 2006. His DD Form 214 shows he served in Iraq from 12 November 2005 to 23 August 2006. It also shows he was awarded or authorized: * National Defense Service Medal * Global War on Terrorism Service Medal * Iraqi Campaign Medal * Army Service Ribbon * Overseas Service Ribbon * Armed Forces Reserve Medal with “M” Device * Combat Action Badge d. On 28 September 2007, by memorandum, an official of the Military Awards Branch, U.S. Army Human Resources Command (HRC), notified the Commander, Joint Force Headquarters, NDARNG that the request for award of the Purple Heart was disapproved. The official stated: (1) The Military Awards Branch forwarded the applicant’s request to the Office of the Surgeon General for review and consideration to determine if the medical documentation submitted meets the criteria for award of the Purple Heart. (2) A review of the documents indicated that the applicant was involved in an IED incident on 8 June 2006. After review of the records submitted, the Neurosurgeon has determined that the request did not meet the medical criteria for the award of the Purple Heart. e. On 31 January 2008, by memorandum, an official of the Military Awards Branch, HRC, responded to the applicant’s Congressional Representative. The official stated: (1) This is in response to the letter of 25 January 2008, on behalf of the applicant, regarding his desire to obtain award of the Purple Heart for injuries received during his service in Operation Iraqi Freedom. (2) The criteria for award of the Purple Heart require it to be awarded to Soldiers for wounds or injuries received as a direct result of enemy action. The wounds must have required treatment by medical personnel and been made a matter of official record. Official documentation reflecting medical treatment immediately following the incident must be provided. (3) They reviewed the Defense Casualty Records for Operation Iraqi Freedom and did not find a casualty report for the applicant. Additionally, no official documentation has been provided to show the applicant received immediate treatment by medical personnel for injuries received as the direct result of enemy action, and that those injuries were made a matter of official record. (4) If the applicant has official documentation reflecting his initial treatment by medical personnel following the incident, and sworn eyewitness affidavits, he may forward them to their office for further review and determination. 5. To be awarded the Purple Heart, the regulatory guidance requires all elements of the award criteria to be met; there must be proof a wound was incurred as a result of enemy action, that the wound required treatment by medical personnel, and that the medical personnel made such treatment a matter of official record. Additionally, when based on a TBI, the regulation stipulates the TBI or concussion must have been severe enough to cause a loss of consciousness; or restriction from full duty due to persistent signs, symptoms, or clinical findings; or impaired brain functions for a period greater than 48 hours from the time of the concussive incident. BOARD DISCUSSION: The Board considered the applicant’s request with all supporting documents, evidence in the service record, and applicable regulations, policy, and guidance. Available records do not demonstrate that the applicant received immediate treatment by medical personnel for injuries received as the direct result of enemy action, and that those injuries were made a matter of official record. According to Army Regulation (AR) 600- 8-22 (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 medical personnel, and the medical treatment must have been made a matter of official record. Due to lack of sufficient evidence, the Board denies the applicant’s request for 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 DETERNINATION/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. SIGNATURE: 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) states 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. a. Examples of enemy-related injuries which clearly justify 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 b. Examples of injuries or wounds which clearly do not justify the Purple Heart: * Frostbite (excluding severe frostbite requiring hospitalization from 7 December 1941 to 22 August 1951) * Trench foot or immersion foot, heat stroke, battle fatigue, first degree burns, and food poisoning not caused by enemy agents * Chemical, biological, or nuclear agents not released by the enemy * 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 disorders * Airborne (for example, parachute/jump) injuries not caused by enemy action * Hearing loss and tinnitus (for example: ringing in the ears) * 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. * 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) ABCMR Record of Proceedings (cont) AR20190000334 6 1