ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS IN THE CASE OF: BOARD DATE: 5 November 2019 DOCKET NUMBER: AR20190002866 APPLICANT REQUESTS: correction of his DD Form 214 (Certificate of Release or Discharge from Active Duty) for the period ending 31 October 2007 to show award of the Purple Heart. APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: * DD Form 149 (Application for Correction of Military Record), dated 25 November 2018 * Purple Heart Submission Checklist * Joint Forces Headquarters Indiana Orders 188-410, dated 7 July 2006 (page 1) * two DA Forms 2823 (Sworn Statement) * Declassified Improvised Explosive Device( IED) Attack – Initial Report * Declassified Significant Journal Entry * Declassified IED Attack – Follow-up Report * DA Form 1156 (Casualty Feeder Card), dated 30 December 2006 * Regimental Combat Team Six, Regimental Aid Station letter, dated 27 April 2007 * Department of the Army, 89th Military Police Brigade (Forward) memorandum, dated 19 August 2007 * DD Form 214 for the period ending 31 October 2007 * Request for Award of Purple Heart, dated 12 February 2012 * Department of Veterans Affairs (VA) Rating Decision, dated 10 October 2013 * DA Form 4187 (Personnel Action), dated 12 February 2015 * U.S. Army Human Resources Command (HRC), Awards and Decorations Branch letter, dated 27 August 2015 * Self-Authored Statement, dated 26 April 2016 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 (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: a. He was wounded in Karmah, Iraq, on 30 December 2006 from an IED. At the time, the confusion between Class I and Class II concussion obscured his award of the Purple Heart. b. He applied to the Awards and Decorations Branch, HRC, for award of the Purple Heart and he was denied in 2015. He then applied to the ABCMR and was instructed that he had not exhausted his appeal with the Awards and Decorations Branch, HRC. c. He reapplied to the Awards and Decorations Branch, HRC, and he was denied again in 2018. 3. Having prior honorable service in the Regular Army, the applicant enlisted in the Army National Guard (ARNG) on 19 March 2005. 4. He provided a copy of Joint Forces Headquarters Indiana Orders 188-410, dated 7 July 2006 that ordered him to active duty in support of Operation Iraqi Freedom on 13 July 2006. These orders show he was assigned to Headquarters and Headquarters Company, 2nd Battalion, 152nd Infantry. 5. He subsequently deployed to Kuwait/Iraq from 3 October 2006 to 22 September 2007. 6. His military service records do not include his DA Form 2-1 (Personnel Qualification Record – Part II). 7. He provided copies of a Declassified IED Attack – Initial Report, Incident Report, Journal Entry, and IED Attack – Follow-up Report that reported on an IED attack that occurred on 30 December 2006 in Karmah, Iraq. Details from the documents show: a. The 2nd Battalion, 152nd Infantry Karmah Police Transition Team was attacked with an IED. b. The team was conducting a Police Transition Team re-supply to the Iraqi Police Station. The convoy was moving north in the center of the road when the last vehicle was attacked with an IED. c. The device was a command detonated 120 millimeter mortar concealed by a small fresh pile of dirt. A command wire was connected to the IED east side of the road. There was cosmetic damage to the front windshield, exterior siren, and the canopy over the gunner's turret. d. The attack resulted in three Coalition Forces wounded in action and damage to the vehicle commander's door that included shearing the bolts holding the ballistic glass frame. e. The team recovered the vehicle and moved to the Karmah Iraqi Police Station. All the Soldiers were wearing the required personal protective equipment and were later treated at Regimental Combat Team 5. f. The applicant was name as one of the Soldiers involved in the IED attack on 30 December 2006. After he was evaluated, it was determined he had sustained level 1 concussion and he was returned to duty after 31 December 2006. 8. He provided copies of: a. a DA Form 1156, dated 30 December 2006, which shows in block 39 (Circumstances) that he was the vehicle commander of the vehicle hit by an IED and he received a Class 2 concussion. b. a DA Form 2823, dated 30 December 2006, from Specialist (SPC) X____ X. X____, who described the IED attack and stated he was the gunner of the vehicle in which the applicant was the vehicle commander. He further stated the applicant had to be helped from the vehicle and he required assistance while walking into the main building of the police station. They were given an abbreviated medical screen by a Navy corpsman followed by a more thorough medical inspection by a Navy officer on Camp Fallujah.: c. a DA Form 2823, dated 1 January 2007, from SPC X____ X___ X____, who described the IED attack and stated he was in the second vehicle of a three-vehicle convoy. He saw the applicant's vehicle come to a slow stop right next to an IED which detonated. The applicant's vehicle drove out of a cloud of dust and both passenger doors had been blown open. They arrived at the Iraqi Police, Karmah, and the Soldiers, to include the applicant, received a more in-depth evaluation for injuries. d. a Regimental Combat Team Six, Regimental Aid Station letter, dated 27 April 2007, that shows he was attached to the 2nd Battalion, 152nd Infantry on 30 December 2006 when he was evaluated in the Regimental Aid Station after an IED attack. He was diagnosed with a Grade I concussion. 9. On 31 October 2007, he was honorably released from active duty and returned to the control of the ARNG. His DD Form 214 for the period ending 31 October 2007 does not show award of the Purple Heart. 10. On 15 February 2008, he was ordered to active duty in support of Operation Enduring Freedom. He was honorably released from active duty on 8 February 2009 and transferred back to the control of the ARNG. His DD Form 214 for the period ending 8 February 2009 does not show award of the Purple Heart. 11. On 31 January 2010, he was discharged from the ARNG. 12. On 12 February 2012, he submitted a request to the Awards and Decorations Branch, HRC, for award of the Purple Heart. In his request, he stated: a. he was an ARNG Soldier called to active duty on 13 July 2006 and he was deployed to the combat theater of operations in Kuwait and Iraq from 3 October 2006 to 19 September 2007, b. on 30 December 2006, his vehicle was struck by an IED. He suffered a Grade I concussion which eventually led to a permanent veteran's disability award due to Traumatic Brain injury (TBI), c. he originally submitted a request for award of the Purple Heart in May 2007, but at that time award of the Purple Heart for TBI was not authorized, and d. based on current guidelines and supporting documentation, he believes he is authorized award of the Purple Heart. 13. He provided a copy of his VA Rating Decision, dated 10 October 2013, that shows he was granted the following service-connected disability ratings: * TBI with memory loss due to Grade I concussion – 40 percent * Post-traumatic Stress Disorder (PTSD) – 30 percent * Tinnitus – 10 percent * Post-concussion headaches – 10 percent * Cervical spine degenerative disc disease – 10 percent 14. On 27 August 2015, the Chief, Awards and Decorations Branch, HRC, disapproved his request for award of the Purple Heart. He was advised that the diagnosis and treatment in the medical document he provided did not meet the criteria for award of the Purple Heart. He was advised that he could appeal to the ABCMR. 15. He provided a self-authored statement, dated 26 April 2016, in which he stated: a. He sent documentation to the Awards and Decorations Branch, HRC, in 2015 and his request for award of the Purple Heart was disapproved. He was informed that he could appeal to the ABCMR, b. He feels his documentation is thorough and clearly demonstrates he sustained a concussion through direct contact from enemy forces in Karmah, Iraq. At the time of the incident, he was a Truck Commander in Fallujah, Iraq during 2006 to 2007 timeframe. c. Engagements with the enemy had been especially heavy two months prior to the IED attack on 30 December 2006 and Saddam Hussein was executed on that same day. d. His squad was travelling north of Camp Fallujah when the gunner of the middle vehicle gestured for them to stop. The IED detonated approximately four meters from the truck commander's door. e. He was briefly unconscious and very groggy when he became conscious. He checked with his crew to ensure no injury and proceeded the 300 meters north, out of the "kill zone" to assess the situation. f. The convoy travelled the last 500 meters to the Karmah Iraqi Police Station where squad members helped him into the building. He was briefly assessed by a Navy Corpsman. g. His vehicle had both passenger side tires blown out, both locked doors on the passenger side were blown open, and both the siren and Chameleon were both blown. h. His team towed their vehicle back to Camp Fallujah and they were evaluated at the Navy Aid Station. i. His team was given 72 hours off to recover and they resume combat operations. j. The injuries he sustained were headaches, ringing in his ears, some mild balance deficit, and superficial scrapes on the right side of his face. BOARD DISCUSSION: 1. After reviewing the application and all supporting evidence, the Board determined that there was insufficient evidence to grant relief. The Board determined that no documentation or supporting statements indicated the applicant had 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 as specified in the criteria for award of the Purple Heart. Therefore the applicant did not meet the requirements for award of the Purple Heart. 2. The Board concurred with the correction addressed in Administrative Note(s) below. ? 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: Except for the correction addressed in Administrative Note(s) below, the Board found 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. ADMINISTRATIVE NOTE(S): A review of the applicant's records shows he was awarded or authorized the Iraq Campaign Medal with two bronze service stars which is not listed on his DD Form 214. 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 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 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 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. 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. b. Some examples of enemy-related actions which justify eligibility for 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 emplaced trap, mine or other improvised explosive 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 (mTBI)) 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. c. Examples of injuries or wounds which clearly do not justify award of 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) mTBI 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). d. 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. //NOTHING FOLLOWS// ABCMR Record of Proceedings (cont) AR20190002866 6 1