IN THE CASE OF: BOARD DATE: 23 October 2020 DOCKET NUMBER: AR20190002775 APPLICANT REQUESTS: award of the Purple Heart. He also requests a personal appearance before the Board. APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: * DD Form 149 (Application for Correction of Military Record) * Congressional Letter * Chronological Record of Medical Care * Denial letter from the U.S. Army Human Resources Command FACTS: 1. The applicant did not file within the three year time frame provided in Title 10, United States Code, 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 his unit did not submit the paperwork. He provides: a. Congressional Letter that reads the Member of Congress was contacted by the applicant regarding the issue he is experiencing with the Army Review Boards Agency. He is requesting to have his military records corrected to include that he was wounded by an explosively formed penetrator (EFP) blast on 25 July 2011 and is entitled to the Purple Heart. The applicant's chronological record of medical care from 2 August 2011 states that [Applicant] was in a vehicle, driver's side position, when an Explosively Formed Penetration blast occurred 12 feet away. The medical records indicate treatment for back pain. b. Chronological Record of Medical Care, dated 2 August 2011 that states the applicant was in a vehicle, driver's side position, when an EFP blast occurred 12 feet away. The medical records indicate treatment for back pain. 3. Review of the applicant's service records shows: a. He enlisted in the New Hampshire Army National Guard (NHARNG) on 29 July 2008 and he held military occupational specialty 92A (Automated Logistical Specialist). b. He was mobilized and entered active duty on 11 September 2010. He served in Kuwait/Iraq from 17 November 2010 to 6 August 2011. c. He was honorably released from active duty on 29 August 2011 to the control of his ARNG unit. His DD Form 214 does not show the Purple Heart as an authorized award. d. An informal physical evaluation board (PEB) convened on 21 May 2015 and found his medical conditions of post-traumatic stress disorder with Major Depressive Disorder, Degeneration of Thoracic/Thoracolumbar Intervertebral Disc, and Thoracic/Lumbosacral Neuritis/radiculitis unfitting. Onset of all conditions occurred while he was deployed to Iraq. The informal PEB assigned a combined disability rating of 80% with his disposition as permanent disability retirement. e. He retired on 4 August 2015 and was placed on the retired list in his retired grade of sergeant/E-5 on 5 August 2015. His NGB Form 22 (Report of Separation and Record of Service) confirms completion of 7 years and 2 days of ARNG service. f. On 23 November 2015, the Awards and Decorations Branch at the U.S. Army Human Resources Command (HRC) denied his request for award of the Purple Heart. By letter to his Member of Congress, an HRC official stated: (1) Based on the U.S. Army Human Resources Command, Surgeon General's review of the medical documentation provided and his medical records, it has been determined that the records do not support an award of the Purple Heart. [Applicant] was evaluated for lower back pain on August 2, 2011, following an explosively formed projectile blast on July 25, 2011. He was prescribed pain medication and was released without restriction. He was not diagnosed with traumatic brain Injury, but claims that he has post-traumatic stress syndrome, which does not qualify him for a Purple Heart. (2) If [Applicant] believes that this response is unfair or unjust, he has the right to appeal to the Army Board for Correction of Military Records. 4. By regulation (AR) 600-8-22, 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. 5. By regulation (AR 15-185), the ABCMR may, in its discretion, hold a hearing or request additional evidence or opinions. Additionally, applicants do not have a right to a hearing before the ABCMR. The Director or the ABCMR may grant a formal hearing whenever justice requires. BOARD DISCUSSION: 1. The Board determined the available evidence is sufficient to fully and fairly consider this case without a personal appearance by the applicant. 2. The Board found that, although the applicant was diagnosed with several medical conditions that had their onset while he was serving in Iraq, none of those conditions could be definitively labeled as a direct result of hostile action. The Board found insufficient evidence of injuries caused by hostile action that required immediate treatment by a medical provider that would have entitled the applicant to award of the Purple Heart. The Board determined the decision of the Awards and Decorations Branch, HRC, to deny award of the Purple Heart was not in error or unjust. 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. Title 10, United States 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 ABCMR to excuse an applicant's failure to timely file within the 3 year statute of limitations if the Army Board for Correction of Military Records (ABCMR) determines it would be in the interest of justice to do so. 2. Army Regulation (AR) 600-8-22, (Military Awards) prescribes policies and procedures for military awards and decorations, to include the Purple Heart. a. 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 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. When contemplating an award of this decoration, the key issue that commanders must take into consideration 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 the sole justification for the award. c. Examples of enemy-related injuries which clearly justify award of the Purple Heart include concussion injuries caused by enemy-generated explosions, and a TBI or concussion that is severe enough to cause: * 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 3. AR 15-185 (ABCMR) 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, which is that what the Army did was correct. a. The ABCMR is not an investigative body and decides cases based on the evidence that is presented in the military records provided and the independent evidence submitted with the application. The applicant has the burden of proving an error or injustice by a preponderance of the evidence. b. The ABCMR may, in its discretion, hold a hearing or request additional evidence or opinions. Additionally, it states in paragraph 2-11 that applicants do not have a right to a hearing before the ABCMR. The Director or the ABCMR may grant a formal hearing whenever justice requires. //NOTHING FOLLOWS// ABCMR Record of Proceedings (cont) AR20190002775 5 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1