ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS IN THE CASE OF: BOARD DATE: 4 October 2019 DOCKET NUMBER: AR20190002362 APPLICANT REQUESTS: award of the Purple Heart and personal appearance before the Board. APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: * DD Form 149 (Application for Correction of Military Record) * self-authored letter * excerpt from Directive-Type Memorandum (DTM) 09-033, dated 21 June 2010 * Headquarters, 101st Airborne Division (Air Assault) and Fort Campbell Orders CP-292-0016, dated 19 October 2010 * Casualty Report, dated 19 January 2011 * Military Personnel (MILPER) Message Number 11-106, Retroactive Wartime Awards and Decorations Processing Procedures, issued 5 April 2011 * MILPER Number 11-125, Army Directive 2011-07 (Awarding the Purple Heart), issued 29 April 2011 * MILPER Message Number 11-157, Amendment to Army Directive 2011-07 (Awarding the Purple Heart), issued 20 May 2011 * excerpt from U.S. Forces, Afghanistan (USFOR-A) J1 Actions Field Leaders Guide, February 2011 * excerpt from “Psychometric Evaluation of the Standardized Assessment of Concussion” * excerpt from “Book of Valor – Combined Task Force STRIKE Operation Enduring Freedom 10-11” * DA Form 4187 (Personnel Action), dated 7 March 2017 * U.S. Army Human Resources (HRC) Command letter, dated 24 May 2017 * Privacy Act Release, dated 15 August 2017 * letter from Member of Congress, dated 27 February 2019 FACTS: 1. The applicant states: a. He sincerely appreciates the review of his Purple Heart request by HRC, Soldier Programs and Services Division and the time involved in arriving at the decision, but in coming to the disapproval, there was a general disregard for the Army’s administrative and medical policies and procedures. There were also crucial errors in the interpretation of the negligently completed medical records documenting the medical follow-up shortly after the incident warranting his award of the Purple Heart. There has been undue animosity during the submission of his request from his local unit, which made its way to upper echelons of HRC, and the fact that this decision is in direct conflict with the deployed brigade’s official unit history published by the Government Printing Office on behalf of the Department of Defense in 2011. b. Page 17 of the “Book of Valor – Combined Task Force STRIKE Operation Enduring Freedom 10-11” promulgates to the general public that he, Sergeant T , and Staff Sergeant W earned the Purple Heart. He personally has a copy of this publication and so does his Alma Mater, the University of Central Florida, the largest university in the U.S., where the publication can be found on the first floor of its library. This publication is available for anyone of the roughly 60,000 students to read and this location is only one of the myriad locations where this prevalent publication resides. Therefore, a logical conclusion should be drawn that it was common knowledge before and after this publication was released that at least one official from his deployed chain of command understood that he was at least marginally injured as a result of enemies of the U.S. in order to qualify for award of the Purple Heart. c. According to MILPER Message Number 11-106, all wartime award requests that are not processed in theater are considered retroactive and must be processed through the former wartime chain of command and then through the peacetime chain of command to HRC. Admittedly, this is contrary to a later MILPER message specifically concerning Purple Heart packets. Nonetheless, HRC promulgated with the issuance of the MILPER Message the intent to consider the combat chain of command’s intent when awarding the Purple Heart. According to a USFOR-A, J1 publication, their intent was to award the Purple Heart in accordance with Army Regulation 600-8-22 (Military Awards), which in turn states the “Purple Heart is different from other decorations in that a Soldier is entitled to the award, rather than recommended for it.” So the simple question to ask is whether or not he is entitled to it. Did he suffer physical injury as a result of the actions of enemies of the U.S.? d. According to MILPER Message Number 11-157, dated 20 May 2011, commanders are encouraged to utilize DTM 09-033, dated 21 June 2010, in order to determine when a mild traumatic brain injury (mTBI) or concussion requires treatment by a medical officer and there was proper notice to medical personnel so as to not plead ignorance of the existence DTM 09-033. Any service member within 50 meters of a blast (inside or outside) must be given a 24-hour rest period unless the commander documents that command discretion waives this rest period for the service member. Moreover, if two documented concussions have occurred in the past 12 months, return to duty is delayed for an additional 7 days following symptom resolution. e. In the medical records of the following morning’s medical evaluation, the medic performing the intake and the physician clearly record that he had proffered that he had a concussion 12 months prior to the Dining Facility (DFAC) attack. Consequently, he should have been afforded, upon further investigation by medical personnel to substantiate his claim, 7 days bed rest or at least documentation in the same medical record that his chain of command was waiving his 7 days of medical rest. f. Notwithstanding this ignored guidance, the medical personnel at the Role III Clinic could neither be bothered to accurately reflect the aforementioned DOD return to duty policy in his medical records nor properly fill out under the injury and illness subsection that his injury was at the least, work-related and battle related. Instead, the medical personnel recorded that his subjective complaints were neither work- related nor battle related even after the three of them informed the clinic that they were there for a command-directed follow-up and were turned away from the Role III Clinic soon after the rocket attack. It is from this document that HRC determined there was insufficient evidence to establish he was injured from the rocket attack. g. He feels as if the content of MILPER Message Number 11-125 was trivialized in his Purple Heart disapproval. According to this message, it provides clarifying guidance in awarding the Purple Heart for concussions and mTBIs without loss of consciousness and states both diagnostic and treatment factors must be present and documented in the service member’s medical records. It states acceptable examples of injuries include neurological deficits such as headaches or nausea, which may or may not be transient. It also states that acceptable examples of treatment include pain medication to treat headaches. Finally, it states that acceptable medical officer verification includes delayed medical statement from a medical officer. h. Consequently, since headache is a diagnostic criterion and is not conclusively verifiable, it meets this diagnostic criterion and non-steroidal, anti-inflammatory drugs (NSAIDS) also meet the treatment criterion. The medical personnel instructed him to take NSAIDs until the symptoms went away. Additionally, why would he need to indicate understanding of the side effects if he were simply returned to duty? He turned down the “horse pills” that military clinics hand out because he prefers not to gag. If he had been hunting down a Purple Heart diagnosis, he would have insisted on a paper trail issuance of “Ranger Candy” be documented in his medical record. Also, with a manual blood pressure of 140/190 taken the morning after the blast at the clinic, it should not be hard for even non-medical personnel to extrapolate that he was at least under some type of physical pain that morning. i. Notwithstanding the medical examination on 20 January 2011, MILPER Message Number 11-125 at paragraph 4a allows Service Members a delayed documentation and verification by a medical officer. He visited the Role III Neurology Clinic on 14 February 2011 for continued episodic migraine headaches, which the neurologist determined to be for the most part consistent with post- traumatic/concussion headache. Therefore, even if the immediate rocket attack medical follow-up’s vaguely worded diagnosis on 20 January 2011 is rejected, the certification of concussion by a staff neurologist must be accepted due to the wording of paragraph 4a and in light of the fact that corroborating testimony from two noncommissioned officers, the first sergeant, and other personnel exists. j. According to the “Clinical Evaluation of the Concussed Athlete, A View from the Sideline, Military Acute Concussion Evaluation (MACE)”, which is a flyer for distribution to the troops from the Defense and Veterans brain Injury Center, the mean total score for the MACE test is 28 for non-concussed patients. Consequently, a score of less than 30 does not imply that a concussion has occurred. Scores below 25 may represent clinically relevant neurocognitive impairment. According to a published medical journal article entitled “Psychometric Evaluation of the Standardized Assessment of Concussion (SAC)”, the SAC, upon which the MACE is based, uses an individual-centered standard that does not have the ability to accurately measure the true ability of many individuals. After experiencing a concussion, the SAC would not be able to identity a 6-point decrease in cognitive ability, whereas a 3-point decrease is supposed to indicate an mTBI. Additionally, the actual score he was given was miscalculated. He actually had a 25, but his score was annotated as a 26. A score of 25 puts him at a 3 point drop from the median score of 28, which meets the criterion for concussion. k. There was a sense of general animosity toward his Purple Heart request. The Brigade physician went on in detail about how he felt he was working the system to get a Medical Evaluation Board and stated he was not entitled to the Purple Heart, which was essentially common knowledge within the command. After the submission of his packet through his battalion, his request did not even leave the battalion for over 100 days after his submission. After the request reached HRC, he called every month or every other month to inquire as to when he would receive a decision until one day the noncommissioned officer told him he was instructed to cease communications with him. He never even received a written disapproval. l. He just does not understand why he has received so much resistance and so many disparaging comments from his local unit through HRC when published guidance clearly states he is entitled to the award and the Army should try its best to award the Purple Heart. He asks the Board to exercise due diligence in considering the aforementioned information and sources when considering modifying his military record and how it relates to the poor handling of his Purple Heart request. 2. After 3 months and 17 days of net active service at Officer Candidate School, the applicant accepted a commission as a Commissioned Officer in the Regular Army on 9 January 2007. 3. He deployed to Iraq from 24 January 2008 through 24 November 2008 and deployed to Afghanistan from 13 November 2011 through 15 April 2011. 4. An Initial Casualty Report, dated 19 January 2011, shows the applicant was wounded in action at Kandahar Airfield, Afghanistan on 19 January 2011 at approximately 1842 when the DFAC was hit by a rocket attack inflicted by enemy forces. The casualty type is listed as hostile and the applicant’s casualty status was listed as not seriously ill/injured with a diagnosis of possible mTBI. A progress report from 19 January 2011, at 2120 shows he was not seriously injured and was released from the hospital. 5. A Standard Form 600 (Chronological Record of Medical Care), dated 20 January 2011, shows the applicant was seen at the Area Support Medical Clinic (ASMC) on the date of the form due to injury from terrorist explosion blast. The form shows: * his blood pressure was measured at 140/80 * his chief complaint was his right ear * subjective information provided by the applicant was that he had right ear pain since he was at the DFAC when a rocket hit and he knew immediately something was wrong with his right ear; he had a head injury during “combatives” 1 year prior * the applicant stated he felt like he lost hearing in his right ear and woke up with a slight headache; he took some Motrin which helped with the headache, but provided no relief for the ear pain * Military Acute Concussion Evaluation (MACE) was conducted with a total MACE score of 26/30 (5/5; 13/15; 4/5; 3/5 scores actually equal 25/30) * his physical findings of general appearance, eyes, ears, neurological, and psychiatric exam were all normal and his pain level was not reported * he was released without limitations and returned to duty with instructions to return as needed if he experienced any headaches, nausea, altered mental status or neurological changes * the form shows the practitioner discussed with the applicant his diagnosis, medication/treatment, alternatives, potential side effects * the form does not list an actual diagnosis, prescribed medications, treatment, alternatives, or potential side effects * his injury and illness were listed as not work related, not battle related, and non-battle injury 6. A Standard Form 600, dated 14 February 2011, shows the applicant was seen at the Navy Role III Clinic on the date of the form for consultation with a neurologist subsequent to injury from terrorist explosion blast. The form shows: * his blood pressure was measured at 137/89 * his headache pain was mild, rated at 3/10 * he was released without limitations with follow up as needed * the form shows the practitioner discussed with the applicant his diagnosis, medication/treatment, alternative, and potential side effects * his illness and injury is listed as work related, battle related, all other, with an onset date of 14 February 2011 * the Neurology Clinic Note on the form listed the applicant’s chief complaint as headache/concussion for which he takes Ibuprofen with a good response though it does not completely abort the headache * his neurological exam was normal * the impression was he likely had a grade 1 concussion and residual headaches from a recent blast exposure 3 weeks prior; he did have some migraine features to the headaches, although symptoms were consistent with a post traumatic headache * the recommendation was 1-2 days of rest if possible as new medications were started for sleep and headaches and to follow up in 4 days for reevaluation and review of medications 7. A Standard Form 600, dated 18 February 2011, shows the applicant was seen at the Navy Role III Clinic on the date of the form as a follow-up appointment for his headaches. The form shows: * his pain was mild, 2/10 * he was released without limitations with follow up as needed * he appeared to have a good initial response to the medication to improve his sleep * it was recommended he continue with the sleep medication and Ibuprofen for headache or Imitrex for migraine specific headache and follow up with his primary care provider and with neurology as needed 8. A DA Form 199 (Informal Physical Evaluation Board (PEB) Proceedings), dated 10 January 2014, shows * a PEB convened on the date of the form and found the applicant physically unfit * he was found unfit for post-traumatic stress disorder (PTSD) with a rating of 50 percent * he was found unfit for chronic daily headaches and episodic migraine, post- concussive, attributed to exposure to exposure to a rocket attack in Afghanistan in January 2011, with a rating of 30 percent * multiple other conditions were found to be not unfitting and therefore not ratable, to include mTBI * the PEB recommended a combined rating of 70 percent and that the applicant’s disposition be placed on the Temporary Disability Retired List (TDRL) with a reexamination in October 2014 9. The applicant’s DD Form 214 (Certificate of Release or Discharge from Active Duty), shows he was retired effective 14 April 2014, due to disability, temporary (enhanced). His DD Form 214 does not show he was awarded or authorized the Purple Heart. 10. A second DA Form 199, dated 25 January 2016, shows a PEB convened on the date of the form and found the applicant physically unfit due to PTSD and chronic daily headaches and episodic migraine, post-concussive. A rating of 70 percent was recommended the applicant’s disposition was recommended to be permanent disability retirement. 11. U.S. Army Physical Disability Agency Order D032-33, dated 1 February removed him from the TDRL and permanently retired him due to disability effective 1 February 2016. 12. A DA Form 4187, dated 7 March 2017, shows the applicant requested award of the Purple Heart for injuries received in action cased directly by the enemy resulting from a rocket explosion inside the DFAC in Afghanistan on 19 January 2011. The form is not signed by any of his former commanders and there is no indication of endorsement by either his former wartime or former peacetime chain of command. 13. A letter from HRC, Soldier Programs and Services Division to the applicant, dated 24 May 2017, states that after a thorough review of the information provided, the award of the Purple Heart for this event does not met the statutory guidance outlined in Army Regulation 600-8-22, paragraph 2-8e. The lack of supporting medical documentation at or near the date of enemy action reflecting a diagnosis or indication of a qualifying injury makes it impossible to connect an injury to the incident. He was advised to apply to the ABCMR if he believed this determination to be unjust. 14. An undated letter from HRC, Combat-Related Special Compensation (CRSC), states the applicant’s claim for CRSC, dated 16 August 2019, was approved for the following conditions: * PTSD; disability verified as combat-related * post-concussive chronic daily headaches and episodic migraines; combat- related based on evidence in his medical records * tinnitus; combat-related due to an instrumentality of war 15. The applicant provided a copy of an excerpt from “Book of Valor – Combined Task Force STRIKE Operation Enduring Freedom 10-11,” which contains an entry stating he and Staff Sergeant earned the Purple Heart from wounds sustained when insurgents attacked Kandahar airfield with indirect fire. 16. He also provided a copy of an excerpt from what he claims to be “Psychometric Evaluation of the Standardized Assessment of Concussion,” which states in essence, the Standardized Assessment of Concussion (SAC) does not have the ability to accurately measure the true ability of individuals as most questions are relatively easy and a 3-point decrease from 36 points is supposed to indicate an mTBI. BOARD DISCUSSION: 1. The Board carefully considered the applicant’s request, supporting documents, evidence in the records and applicable policy. The Board considered the applicant’s statement, his record of service, the available medical records to include the records that show he was released without limitations following the incident, the AHRC review, the reason for his separation, his medical conditions and his transfer to the TDRL (disability retirement) and ultimately permanent disability retirement. Based on a preponderance of evidence, the Board did not find sufficient evidence to show the applicant met the criteria for award of the Purple Heart and determined there was no error or injustice in the denial. 2. The applicant's request for a personal appearance hearing was carefully considered. In this case, the evidence of record was sufficient to render a fair and equitable decision. As a result, a personal appearance hearing is not necessary to serve the interest of equity and justice in this case. 3. After reviewing the application and all supporting documents, the Board found that relief was not warranted. 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. REFERENCES: 1. 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 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. b. Paragraph 2-8e specifically states 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 in the regulation. 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. 2. HRC MILPER Message Number 11-106 (Retroactive Wartime Awards and Decorations Processing Procedures), dated 5 April 2011, stated the purpose of this message was to clarify the processing procedures for retroactive wartime awards and decorations. All requests that are not processed within the Theater are considered retroactive and must be processed through the former wartime chain of command and then through the peacetime chain of command to HRC. 3. HRC MILPER Message Number 11-125, dated 29 April 2011, stated the Secretary of the Army approved Army Directive 2011-07 (Awarding the Purple Heart). The directive 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 for concussions (including mild traumatic brain and concussive injuries that do not result in a loss of consciousness). a. HRC verified award of the Purple Heart for a TBI injury is retroactive only to 11 September 2001 and that all requests that are not processed within theater must be processed through the peacetime chain of command. Awards of the Purple Heart for injuries incurred in a previous deployment and requests that are not processed in the combat theater must be processed through the Soldier’s current chain of command to the Commander, HRC. When recommending and considering award of the Purple Heart, the chain of command will ensure the Purple Heart criteria in Army Regulation 600-8-22, paragraph 2-8, are met and that both diagnostic and treatment factors are present and documented in the Soldier’s medical records by a medical officer. b. The following non-exclusive list provides examples of signs, symptoms, or medical conditions documented by a medical officer or medical professional that meet the standard for award of the Purple Heart: * diagnosis of concussion or mild traumatic brain injury * any period of loss or decreased level of consciousness * any loss of memory for events immediately before or after the injury neurological deficits (weakness, loss of balance, change in vision, praxis (i.e. difficulty with coordinating movements), headaches, nausea, difficulty with understanding or expressing words, sensitivity to light, etc.) that may or may not be transient * intracranial lesion (positive computerized axial tomography (CAT) or magnetic resonance imaging (MRI) scan c. The following non-exclusive list provides examples of medical treatment for concussion that meet the standard of treatment necessary for award of the Purple Heart: * limitation of duty following the incident (limited duty, quarters, etc.) * pain medication such as acetaminophen, aspirin, ibuprofen, etc, to treat injury * referral to neurologist or neuropsychologist to treat the injury * rehabilitation (such as occupational therapy, physical therapy, etc.) to treat injury d. Combat theater and unit command policies mandating rest periods or “down time” following incidents do not constitute qualifying treatment for concussion injuries. To qualify as medical treatment, this rest period must have been directed by a medical officer or medical professional for the individual after diagnosis of an injury. e. Paragraph 4a, states award of the Purple Heart may be made for wounds (including mTBI and concussive injuries) 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. 4. 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. Paragraph 2-11 states applicants do not have a right to a formal hearing before the ABCMR. The Director or the ABCMR may grant a formal hearing whenever justice requires. NOTHING FOLLOWS