ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS BOARD DATE: 13 June 2019 DOCKET NUMBER: AR20190003781 APPLICANT REQUESTS: award of the Purple Heart. APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: * DD Form 149 (Application for Correction of Military Record) * Personal Statement * Orders 227-11, Unit Temporary Change of Station (TCS) with manning roster, dated 15 August 2003 * Permanent Orders 325-006, dated 20 November 2002, award of the Combat Infantryman Badge * Standard Form 600 (Chronological Record of Medical Care), dated 30 March 2003 * DA Form 3349 (Physical Profile), dated 30 November 2003 * Womack Army Medical Center, Fort Bragg, NC, Specialty Care Consultation for Medical Evaluation Board (MEB), dated 18 March 2004 * DA Form 199 (Physical Evaluation Board (PEB) Proceedings) only page 2, dated 6 April 2004 * Orders 202-0296, dated 20 July 2004, [Separation Orders] * DD Form 214 (Certificate of Release or Discharge from Active Duty) Member Copy * Applicant’s DA Form 2823 (Sworn Statement), dated 28 December 2017 * Memorandum for Record, dated 25 July 2018, subject: Statement in Support of Purple Heart Claim by Applicant * AHRC, Soldier Programs and Services Division Letter to Applicant’s Member of Congress, dated 2 October 2018 * Army Review Boards Agency (ARBA), Case Management Division letter, dated 9 February 2019 FACTS: 1. The applicant requests the Purple Heart. He states the U.S. Army Human Resources Command (AHRC), Awards and Decorations Branch made an error when it denied him the Purple Heart. The AHRC, Surgeon’s Office stated the medical documentation he provided does not meet the guidelines for the Purple Heart. He disagrees. 2. In addition he provides a personal statement expressing his frustration with the ABCMR Board and its staff. He made an initial application on 9 February 2019 which was returned without action and he was informed to apply to the AHRC, Awards and Decorations Branch. He claims this statement is false as he made a previous application to the Awards and Decorations Branch through his member of Congress. In fact, his member of Congress received a letter from AHRC and he was told to appeal to the ABCMR. He now asks for the ABCMR to make a proper review of all information he has sent to the Board. He reached out to his member of Congress who in turn asked him to work with the ABCMR. 3. The applicant enlisted in the Regular Army on 22 August 2001 in the rank of private first class/pay grade E-3 for a period of 4 years. He trained and was qualified as an infantryman. 4. The applicant deployed in support of Operation Enduring Freedom to Afghanistan from 25 March 2002 to 23 July 2002. He further supported Operation Iraqi Freedom in Iraq from 29 September 2003 to 29 January 2004. He received the Combat Infantryman Badge for actions on 23 July 2002 as recorded in Permanent Orders 325- 006 dated 20 November 2002 issued by U.S. Army Forces Central Command. 5. Orders 202-0296 dated 20 July 2004 issued by Headquarters, 82nd Airborne Division reassigned him to the U.S. Army transition point for transition processing. After processing, he was scheduled to be discharged with no entitlement to separation pay. His scheduled date of separation was 6 August 2004. Within his orders were additional instructions showing his disability was based on injury or disease received in the line of duty as a direct result of armed conflict or caused by an instrumentality of war and incurred in the line of duty during a war period defined by law. Additionally, his disability resulted from a combat related injury as defined in Title 26, U.S. Code, section 104. He was authorized disability severance pay in the rank of specialist/pay grade E-4 based on 3 years, 1 month, and 22 days of service. His percentage of disability was zero percent. 6. Orders 202-0296 were amended on 2 August 2004 to show he was now authorized disability severance pay under the provisions of Title 10, U.S. Code, section 1208. 7. On 6 August 2004 he was honorably discharged from the Regular Army. Item 13 (Decorations, Medals, Badges, Citations and Campaign Ribbons Awarded or Authorized) of his DD Form 214 shows the Combat Infantryman Badge, but no Purple Heart. 8. His service treatment record underwent an administrative review by the Department of Defense Disability Board of Review (DoD PDBR). The DoD PDBR modified his disability rating from zero percent to 10 percent, but not to a degree that would justify changing his separation for disability with severance pay to a permanent retirement with disability. The DoD PDRB shows he was medically separated for a right ankle condition. His right ankle pain could not be adequately rehabilitated to meet the physical requirements of his military occupational specialty or satisfy physical fitness standards. He received a permanent profile of three for his lower extremities physical factor and referral to an MEB. The MEB also forwarded left ear hearing loss for PEB adjudication. Within the DoD PDRB report it states: The MEB narrative summary (NARSUM) noted the CI [covered individual – applicant] fractured his right ankle 7 February 2003 and underwent surgery for open reduction internal fixation of the fracture [on] 10 February 2003. He was casted for approximately 2 months and then was placed in a CAM [controlled ankle motion] boot and participated in physical therapy for approximately 2 months… [The applicant] was still on profile when he was deployed for nearly 5 months; ankle pain and swelling continued. After returning from deployment [the applicant] was given a permanent profile and an MEB was initiated. 9. The applicant provided the following evidence in support of his application. a. A Standard Form 600 showing he fractured his right ankle on or about 30 November 2003 and that he had a previous surgery wherein a lateral plate and screws were inserted during surgery and he has been in chronic pain since his (first) injury. b. While deployed he received a temporary profile on 30 November 2003 for his lower extremities with special instructions including no airborne operations, no rucking, no marching and no running. He was authorized to do aerobic exercise in a pool or on exercise machines with a reevaluation ordered upon his return to the continental United States. The DA Form 3349 he provided was not approved by the appropriate approval authority. c. On 18 March 2004 he underwent a physical examination for his pending MEB. The provider stated the applicant was a 27 year old active duty Soldier whose status was post right ankle fracture open reduction internal fixation. He continues to have lateral and medial pain. It was recommended he undergo an MEB by Lieutenant Colonel James Sanxxx, Medical Corps. d. He provides only page 2 of his PEB showing, "The disability did result from a combat related injury as defined in [Title] 26, U.S. C[ode], [section] 104." e. He provides a memorandum for record from Dr. James Sanxxx who states he is the orthopedic surgeon who was the attending physician for the applicant’s MEB. He states, “I acknowledge the fact that [the applicant] was injured on a parachute operation at Fort Bragg in February of 2003 prior to deployment. He had a mental plate and six screws surgically placed in his right leg.” The applicant underwent several months of physical therapy and rehabilitation before he deployed to Iraq in September 2003. He also acknowledges the applicant was injured during combat operations in Iraq in November 2003. He states, "This injury occurred while his platoon was under a mortar attack and while taking heavy arms fire." He sought medical treatment and was informed that he had fractured his right ankle. He received a restrictive profile. The medical doctor states, "It is [his] medical opinion that the ankle fracture [the applicant] received while in Iraq was a direct result of an armed conflict and was caused by enemy fire." He further states, “The first ankle injury at Fort Bragg had no bearing or effect [on an] injury received in Iraq because [the applicant] was fully cleared medically for deployment." Further, he states, "It is also my medical opinion that the right ankle injury [the applicant] received in Iraq on November 30, 2003 would have occurred regardless of and in spite of the prior ankle injury." He concludes by stating he asserts the applicant’s injury in Iraq meets the Army's criteria to award the Purple Heart. f. The applicant provides a DA Form 2823 (Sworn Statement), dated 28 December 2017, wherein he states he was sent to Baghdad, Iraq in September 2003 with a metal plate in his leg. He hurt his leg during airborne operations in February 2003. When he deployed he had a hard plastic brace on both sides of his right foot. He states he tried to fight the deployment because he knew he was not at full strength and that he also ran the risk of hurting himself or endangering the men in his unit because he was not healthy. He deployed as a machine gunner for a military vehicle. His compound came under heavy mortar attack. After securing their personal protective military equipment they headed for their vehicles when an incoming rocket propelled grenade landed near him knocking him off his feet. He felt a sharp pain run up his right leg and he was helped into a military vehicle by his friend. He took his position as the machine gun operator and they quickly departed the compound that was eventually leveled by enemy forces. He sought medical treatment for the pain in his leg on 30 November 2003. He was told he had a right ankle fracture, a stress fracture, and that he would receive a medical profile and medication to manage the pain. During the rest of the deployment he still functioned as a machine gun operator. Upon his return to Fort Bragg in January 2004, he was told he still had a right ankle stress fracture and so he underwent an MEB. g. On 2 October 2018 the AHRC, Chief, Soldier Programs and Services Division wrote a letter to his member of Congress concerning the applicant's request for the Purple Heart. He stated that after a thorough review to include a consultation with the AHRC Surgeon’s office, they could not grant the applicant’s request because his injury did not meet the statutory guidance outlined in Army Regulation 600-8-22 (Military Awards) paragraph 2-8e such that the medical documentation provided does not indicate diagnosis of and treatment of a qualifying injury. 10. In summary, the applicant initially injured his right ankle during airborne operations at Fort Bragg when he was simulating wartime operations by parachuting onto a field. He required surgery to repair the ankle with the placement of a metal rod and screws against the bone. He participated in physical therapy post-surgery. Some 5 months after he injured his right ankle, he deployed to Iraq. While he states he did not feel strong enough to deploy, his orthopedic surgeon medically cleared him for deployment. While in Iraq on or about 30 November 2003 he sustained a stress fracture to his right leg/ankle while under an enemy mortar attack when he was in the process of mounting his military vehicle. He did seek medical treatment for the stress fracture which is recorded in his medical record. However, the medical provider did not state how the applicant was injured or if the injury was incurred through enemy fire. Upon application to the AHRC, his request for the Purple Heart was denied because it could not be determined to what extent the enemy caused the right ankle stress fracture injury. The applicant has appealed their decision to this Board. BOARD DISCUSSION: After reviewing the application and all supporting evidence, the Board determined that there was insufficient evidence to grant relief. The Board agreed that the evidence presented does not support award of the Purple Heart Medal: although the applicant received a CIB, the incident for which the CIB was awarded predates the medical notes that indicate that the applicant received medical treatment for a wound and there are no witness statements to corroborate the events that led to the treatment for the wound. Therefore, the facts presented in this case do not meet the regulatory requirements for award of 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 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. ADMINISTRATIVE NOTE(S): Not Applicable REFERENCES: 1. Army Regulation 600-8-22 (Military Awards) states the Purple Heart is awarded to any member who, while serving under competent authority in any capacity with one of the Army Services, has been wounded or killed or who has died or may hereafter die after being wounded: a. In any action against an enemy of the United States; some examples which justify eligibility for the Purple Heart are * Injury caused enemy bullet, shrapnel or other projectile created by enemy action * Injury caused by enemy emplaced trap, mine, or improvised explosive devise * Injury caused by chemical, biological, or nuclear agent released by the enemy * Injury caused by vehicle or aircraft accident resulting from enemy fire 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 a result of an act of any such enemy of opposing armed forces; e. As a result of an act of any hostile foreign force; f. After 23 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; 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; or h. Members killed or wounded by friendly fire. 2. Substantiating evidence must be provided to verify that the wound was the result of hostile action, the wound must have required treatment by a medical officer, and the medical treatment must have been made a matter of official record. Paragraph 2-8e states when contemplating eligibility for the Purple Heart, the two critical factors commanders must consider is the degree to which the enemy or hostile forces caused the wound, and was the wound so severe that it required treatment by a medical officer. 3. Some examples of injuries which do not justify eligibility for the Purple Heart include accidents, airborne operation injuries not caused by enemy action, bruises or contusions unless caused by direct impact of the enemy weapon and severe enough to require treatment by a medical officer, and soft tissue injuries (for example, ligament, tendon, or muscle strains, sprains, and so forth). 4. The authority to approve or disapprove recommendations for the Purple Heart for Servicemembers who did not receive the Purple Heart while serving in a unit with wartime awards approval authority is the Chief, Awards and Decorations Branch at AHRC. When contemplating submitting an award recommendation one should include a one-page narrative describing the qualifying incident and conditions under which the member was injured or wounded. The applicant is encouraged to obtain statements from at least two individuals, other than the proposed recipient, who were personally present, observed the incident, and have direct knowledge of the event. Alternatively, other official documentation may be used to corroborate the narrative such as unit situational reports, staff duty logs, or unit after action reports. //NOTHING FOLLOWS// ABCMR Record of Proceedings (cont) AR20190003781 4 1