ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS BOARD DATE: 24 October 2019 DOCKET NUMBER: AR20190005100 APPLICANT REQUESTS: award of the Purple Heart (PH) APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: * DD Form 149 (Application for Correction of Military Record) * Letter from Army Human Resources Command (AHRC) * DA Form 4187 (Personnel Action) * Letter from Office of the Deputy Chief of Staff, G-8 * Orders * Personal statement * Officer Record Brief (ORB) * 3 letters of support * Medical Statement * Medical review * 100+ pages of medical documents FACTS: 1. The applicant states: a. On 21 May 2013, during an indirect fire (IDF) attack at forward operating base (FOB) Shank, Afghanistan a 107mm mortar round hit and demolished her company tactical operations center (TOC). She was less than 25 meters from the point of impact. The force of the blast thrusted her into a concrete bunker and caused her to hit her head on the concrete bunker. The percussion of the blast caused an immediate loss of hearing in her right and middle ear. Immediately following the attack, she was confused but coherent. The battalion physician assistant (PA), Captain O evaluated her for concussion using the Military Acute Concussion Evaluation (MACE). b. Captain O annotated positive findings of concussion related to blast exposure to include hearing loss, tinnitus, and reduced brain function. Captain O placed her on restricted duty for over 48 hours and continued to monitor her for the duration of the deployment due to persistent migraines, persistent episodes of confusion, and increased hearing loss. On 23 July 2013, Captain O referred her to the 703rd BSB Medical treatment Facility located at FOB Shank due to persistent signs of impaired brain function. The 703rd BSB was not equipped with the medical facilities to provide advanced screening, diagnosis, or treatment for symptoms related to a mild TBI, had a facility been available she would have required more advanced treatment. c. She returned from deployment in November of 2013, and started treatment for and was diagnosed with reduced brain function, mood disorder, depression, anxiety, double vision, and narcolepsy are all long term effects of mild TBI and post- concussive syndrome as noted by Dr. B. 3. The applicant is currently serving on active duty as a Major. 4. Records show the applicant served in Afghanistan for a period of six months which ended on 12 November 2013. 5. The applicant was seen on 22 May 2013, for an evaluation due to a blast exposure on 21 May 2013. No concussion was noted; however, she had a positive screening for mild TBI. The applicant was released without limitations. The applicant denied loss of consciousness, headache visual disturbances; however, reported hearing loss and tinnitus to right ear. 6. On 16 May 2018, the applicant requested award of the PH and her commander recommended approval. 7. In support of awarding the applicant the PH, her commander submitted the following statement to AHRC, Awards and Decoration Branch: a. The applicant was assigned to Headquarters and Headquarters Company, 8th Engineer Battalion (Combat) at FOB Shank, Afghanistan, from May to December 2013. On 21 May 2013, during a 107MM Mortar attack on FOB Shank, a mortar round shockwave caused her head to hit a concrete bunker barrier. After the attack, she was evaluated by the Battalion Physician Assistant and placed on 24 hours quarters and prescribed Ibuprofen for headaches. b. In 2014, the applicant was receiving care for hearing loss, memory loss, migraines, post-traumatic stress disorder, anxiety, and depression. In April 2018, a comprehensive evaluation of the applicant's medical records at the National Intrepid Center of Excellence at Walter Reed National Military Medical Center resulted in a diagnoses of mild TBI. This diagnosis can be traced back to the mortar attack in 2013. She is currently receiving treatment for mild TBI. c. At the time of the mortar attack in May 2013, it was not widely known that TBI injuries that did not include concussion warranted award of the PH, so the applicant was not recommended for this award. Now, based on refined guidance in Army Directive 2011-07 (Awarding the Purple Heart), the applicant requests consideration for award of the PH based on her documented injuries sustained as a result of the Mortar attack. 8. On 11 July 2018, Chief, Soldier Programs and Service Division, AHRC, determined after a thorough review of the information provided and consultation with AHRC Command Surgeon's office, the recommendation for award of the PH does not meet the statutory guidance outlined in Army Regulation 600-8-22 (Military Awards), paragraph 2-8e. The medical documentation provided does not indicate diagnosis of and treatment for a qualifying injury. 9. The applicant provides 3 witness statement corroborating her account of the indirect fire attack. The witness statements are available for the Board's review. 9. In support of her request the applicant provides, in part: a. A memorandum from M.O, Physician Assistant, dated 24 July 2018, which states, in part, on 21 May 2013, the applicant reported a mortar round penetrated and exploded at the top of the company headquarters while she and her Soldiers were running towards the bunker. The applicant reported she hit her head on the bunker due to the blast wave and the next thing she remembered was standing outside of the bunker. Immediately following the blast several Soldiers were evaluated for blast exposure. The applicant underwent a blast exposure evaluation by myself using the Military Acute Concussion Evaluation (MACE). There were positive findings related to blast exposure which restricted her from full duty at that time; however, on 23 July 2013, the applicant was referred to the 703rd BSB Level II at FOB Shank, Afghanistan for persistent signs of blast related injuries. The applicant was treated for persistent migraines for the duration of the deployment. The applicant was a Commander in a high OPTEMPO environment with 10-15 mortar attacks a day at FOB Shank. The high OPTEMPO prevented the applicant from receiving additional treatment for her injuries at that time and she wanted to return to the fight. The applicant returned from deployment in November of 2013, and had a permanent change of station to the Corps of Engineers in Baltimore, Maryland. She started treatment for her blast related injuries in 2014 due to symptoms related to mild Traumatic Brian Injury (mTBI) such as memory problems, concentration, and attention deficit, mood disorder, depression, anxiety, post- traumatic stress disorder, and significant hearing loss with tinnitus. She is currently receiving treatment at The National Military Medical Center Walter Reed for the injuries listed above. Review of the applicant's medical records post exposure correlates with mild traumatic brain injury (mTBI) and not blast exposure without concussion. b. A medical statement from E.B, Internal Medicine Staff Physician, Walter Reed Medical Center, dated 13 July 2018, states, in part, she saw the applicant in an internal medicine appointment for complaints of disrupted, restless sleep on 23 Mar 2018. When reviewing her history, she reported after sustaining a concussion from a blast injury while deployed in Afghanistan in 2013, she developed immediate right ear hearing loss, ear ringing/tinnitus, and headaches. She was diagnosed with concussion. Her activities after the incident can be reviewed in the accompanying statements from eye-witnesses and her personal statement. She then developed mood issues (bipolar disorder), difficulty sleeping, PTSD, and difficulty concentration and was referred to behavioral health for evaluation and treatment. She did not have formal evaluation by neurology around the time of her injury. Upon hearing her constellation of symptoms at her appointment 23 Mar 2018 and the timeline, with symptoms occurring after her blast injury/concussion, she referred her for formal evaluation for TBI (Traumatic Brain Injury). She was diagnosed with mild TBI formally in the National Intrepid Center of Excellence TBI Clinic at Walter Reed National Military Medical Center on 20 April 2018. She was then referred for neuropsychologic testing, which was completed 21 Jun 2018. Her neuropsychologic testing confirmed attention and concentration deficit with recommendations for treatment. She continues to be followed by behavioral health for mood issues. A sleep study was performed 29 Apr 2018 and did not show obstructive sleep apnea or other sleep pathology. Given the time course of onset of the applicant's symptoms, her complaints of decreased concentration, word-finding difficulties, memory problems, sleep impairment, headaches, and mood disorders, more likely than not, are related to her blast injury and concussion. Based on the history, time-course, and continued need for treatment of her cognitive injury from the blast, she respectfully recommend the applicant's case be considered to represent TBI with persistent post-concussive syndrome as a result of this unfortunate event, worthy of Purple Heart recognition. 10. Army Regulation 600-8-22 (Military Awards) prescribes Army policy, criteria, and administrative instructions concerning individual and unit military awards. The PH 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. BOARD DISCUSSION: 1. After reviewing the application and all supporting documents, the Board found the relief was warranted. 2. The Board noted evidence given by medical authority that the applicant sustained a concussion from which she lost consciousness as a result of an enemy mortar attack after which she was diagnosed with a concussion and mild traumatic brain injury. She was given limited duty and quarters rest, tested positive in a Military Acute Concussion Evaluation (MACE), and neuropsychologic testing which confirmed attention and concentration deficit with recommendations for treatment. She was diagnosed with mild TBI in the National Intrepid Center of Excellence TBI Clinic at Walter Reed National Military Medical Center. 3. These conditions experienced by the applicant met the criteria for award of the Purple Heart in accordance with the Secretary of the Army Directive 2011-07, effective 29 April 2011 through 6 August 2015, in effect at the time that the applicant received the concussion wound on 21 May 2013. BOARD VOTE: Mbr 1 Mbr 2 Mbr 3 :X :X :X GRANT FULL RELIEF : : : GRANT PARTIAL RELIEF : : : GRANT FORMAL HEARING : : : DENY APPLICATION BOARD DETERMINATION/RECOMMENDATION: The Board determined the evidence presented is sufficient to warrant a recommendation for relief. As a result, the Board recommends that all Department of the Army records of the individual concerned be corrected by showing that she was awarded the Purple Heart for a wound received on 21 May 2013 as a result of hostile action by the enemy; providing her a Purple Heart medal and orders; and issuing her a DD Form 215 showing award of the Purple Heart. X CHAIRPERSON 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 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) prescribes Army policy, criteria, and administrative instructions concerning individual and unit military awards. a. The PH 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 PH 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. 3. HRC MILPER Message Number 11-125, dated 29 April 2011, stated that the Secretary of the Army approved Army Directive 2011-07 (Awarding the Purple Heart) which was in effect until 6 August 2015 when it was superseded by AR 600-8-22. 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 PH for concussions (including mild traumatic brain and concussive injuries that do not result in a loss of consciousness). a. HRC verified award of the PH 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 mild TBI 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. NOTHING FOLLOWS