ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS IN THE CASE OF: BOARD DATE: 4 August 2020 DOCKET NUMBER: AR20190006485 APPLICANT REQUESTS: award of the Purple Heart. APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: * DD Form 149 (Application for Correction of Military Record), dated 22 May 2019 * Headquarters 101st Airborne Division (Air Assault) and Fort Campbell, Orders 232-304, dated 20 August 2007, with Roster * "No Slack" Trip Report, undated * two Photographs * DD Form 2216E (Hearing Conservation Data), dated 5 September 2012 * five DA Forms 2823 (Sworn Statement) * DA Form 4187 (Personnel Action), dated 26 March 2013 * Purple Heart Narrative * memorandum, US Army Human Resources Command (HRC), dated 20 May 2019, subject: Award of the Purple Heart for [Applicant] * Officer Record Brief, dated 21 May 2019 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 incurred injuries from an improvised explosive device (IED) blast in Iraq on 16 December 2007. The vehicle he was riding in was struck by an IED directly under his seat. b. He was knocked unconscious and he received shrapnel wounds to his face, forearm, and partial loss of hearing. When he woke up, he refused evacuation because he did not want to leave his Soldiers in contact. ? c. He sought medical attention hours later for stitches and ringing in his ears. As a result of the blast, he suffered from a traumatic brain injury (TBI), back pain, and a broken nose. d. He had surgery on his nose, back surgeries, and he is required to wear hearing aids. e. He has exhausted all efforts through HRC to seek approval of the Purple Heart and he was referred to the ABCMR. 3. The applicant is a commissioned officer presently serving on active duty in the Regular Army. 4. He provided a copies of: a. Headquarters, 101st Airborne Division (Air Assault) and Fort Campbell, Orders 232-304, dated 20 August 2007, which show he was deployed as a member of his unit and assigned to 2nd Battalion, 327th Infantry Regiment (Main Body), Headquarters, U.S. Central Command (Coalition Forces Land Component Command, in support of Operation Iraq Freedom 07-09 for a period of up to 456 days and with a proceed on or about date listed as 23 September 2007. b. two photographs showing the aftermath of an IED detonation. c. a grid map of Salah Ad Din Province with an IED detonation at MSR (Main Supply Route) Tampa, dated 16 December 2007, that shows the entry, in part, "observed an IED placed 100 meters north of their location on the shoulder of the northbound lane of MSR Tampa. As Ex 17 moved to establish a cordon around the IED, a secondary IED detonated on Ex 17. Ex 17 was left disabled due to catastrophic damage to the vehicle. The vehicle and crew were recovered and returned to FOB [Forward Operating Base] Brassfield-Mora. Possible triggerman was spotted east of MSR Tampa, but were unable to maintain PID [positive identification]." d. his DD Form 2216E, dated 5 September 2012, that shows in item 15f (Remarks), there was a change in his hearing and there was a need to return for a follow-up. e. a partially legible DA Form 2823 from Warrant Officer V____, dated 13 September 2013, wherein he stated, in part, he was in Iraq on 16 December 2007 and witnessed the IED blasts at MSR Tampa. (Illegible portion: Someone received a Combat Infantryman Badge; mention of someone receiving a small piece of shrapnel on his eye lid.) f. a DA Form 2823, dated 20 September 2012, from Master Sergeant M____ wherein he stated he served with the applicant in the 101st Airborne Division and they deployed to Iraq in support of Operation Iraqi Freedom V1 from September 2007 through December 2008. On 16 December 2007, the unit reported that an IED explosion had directly hit a combat logistics patrol while conducting combat resupply operations in which the applicant was a passenger in the vehicle that suffered catastrophic damage as a result direct impact of an IED explosion. The passengers were treated on site and the applicant awarded the Combat Infantryman Badge. The applicant qualified for award of the Purple Heart due to being reported as receiving a small piece of shrapnel on his eye lids and his ear drums were blown due to the IED attack. There was no required documentation submitted during that time for award of the Purple Heart. g. a DA Form 2823, dated 4 March 2016, from Lieutenant Colonel W____, wherein he stated he served as the battalion surgeon during the time of the applicant's IED attack on 16 December 2007 in which he suffered tympanic membrane rupture as well as fragmentation injury to the eye lid. The applicant's initial assessment was conducted by another provider who relayed the information to him at the time of the injury. While he recalls the facts of the injury, he could not recall the specifics of the injury. However, he did recall the discussions with the treating medical staff. The applicant did not require evacuation to a higher level of care as he was treated by the appropriate medical staff in the region. During that time, they had very limited ability for connectivity and documenting injuries. h. his DA Form 4187, dated 26 March 2013, that shows a recommendation for his award of the Purple Heart was submitted to HRC with a narrative detailing the injuries he sustained during his deployment to Iraq ion 16 December 2007. i. a DA Form 2823, dated 12 March 2019, from Sergeant H____, who stated he worked with the applicant during his deployment in Iraq from September 2007 to December 2008. During a routine mounted movement on 16 December 2007, they were alerted of a possible IED on the side of the main supply route. They were in the process of forming a cordon around the IED to wait for the Explosive Ordnance Disposal Specialist to arrive. It was at that point he witnessed the applicant's vehicle explode from the IED blast. He and other Soldiers were unable to make contact with the applicant after the explosion and his vehicle was barely noticeable. The applicant was laid across the middle of the gunner’s stand and driver's lap. He assisted in pulling the applicant out of the vehicle and he was unconscious, but was breathing. His vitals were checked and he had what looked like a wound to his eye and arm. The applicant woke up within a couple of minutes of being pulled from the vehicle and he was combative and unsure of his surroundings. The applicant refused to be evacuated with the rest of his vehicle crew since he was the highest ranking member present. j. A DA Form 2823, dated 9 April 2019, from Captain (Retired) M____, who stated, in part, he worked with the applicant during his deployment to Iraq from September 2007 to December 2008 and during a routine mounted movement on 16 December 2007, the applicant's vehicle was hit by an IED. The injuries he sustained should have required evacuation and further evaluation but he remained with the unit allowing the more seriously injured to be evacuated from the area in priority. The following day, the applicant accompanied another patrol and he assessed the applicant's wounds on his forehead and forearm. Both were cleaned and sutured closed. Per protocol, the applicant was assessed for TBI and it was determined that he sustained barotrauma to his ear drum and he was negative for TBI at the time and allowed to continue the day's patrol. k. a memorandum from the Chief, Awards and Decorations Branch, HRC, who advised the request for his award of the Purple Heart was denied and without medical documentation from the time of the event that shows both diagnosis and treatment, this office was unable to take favorable action on the request. The applicant was also advised of his option to appeal to the ABCMR. l. his Officer Record Brief, dated 21 May 2019, that does not show award of the Purple Heart. 5. The available records are void of medical treatment records showing the applicant was treated for injuries sustained as a result of enemy action on 16 December 2007. BOARD DISCUSSION: After review of the application and all evidence, the Board determined there is sufficient evidence to grant relief. The Board found the applicant’s statement and independent corroborating evidence that he was wounded by hostile fire on 16 December 2007, to be detailed, compelling, and consistent. Notwithstanding the published guidance requiring the medical treatment to have been made a matter of official record, the information provided as supporting evidence, when viewed in its totality, is sufficient to reasonably conclude the applicant was wounded as a result of hostile action and received medical treatment for those wounds on 16 December 2007. ? BOARD VOTE: Mbr 1 Mbr 2 Mbr 3 : : : 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 awarding and adding the Purple Heart dated 16 December 2007. 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 Purple Heart is awarded to any member of an Armed Force of the United States under the jurisdiction of the Secretary of the Army who, after 5 April 1917, has been wounded, killed, or who has died or may hereafter die of wounds received, under any of the following circumstances, in part: (1) In any action against an enemy of the United States. (2) 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. ( 3) 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. (4) As the result of an act of any such enemy or opposing Armed Forces. (5) As the result of an act of any hostile foreign force. (6) After 28 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. (7) 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. (8) After 7 December 1941, pursuant to Title 10, USC, section 1129, as a result of friendly fire provided the member was killed or wounded in action by friendly weapon fire while directly engaged in armed conflict, other than the result of an act of an enemy of the United States, unless (in the case of a wound) the wound is the result of the willful misconduct of the member. (9) On or after 11 September 2001, pursuant to Title 10, USC, section 1129a, to a member killed or wounded in an attack by a foreign terrorist organization in circumstances where the death or wound is the result of an attack targeted on the member due to such member’s status as a member of the Armed Forces, unless the death or wound is the result of the member’s willful misconduct. An attack by an individual or entity will be considered to be an attack by a foreign terrorist organization if the individual or entity was in communication with the foreign terrorist organization before the attack; and the attack was inspired or motivated by the foreign terrorist organization. b. To qualify for award of the Purple Heart the wound must have been of such severity that it required treatment, not merely examination, by a medical officer. A wound is defined as an injury to any part of the body from an outside force or agent. A physical lesion is not required. (1) Treatment of the wound will be documented in the member’s medical and/or health record. (2) Award may be made for a wound treated by a medical professional other than a medical officer provided a medical officer includes a statement in the member’s medical record that the severity of the wound was such that it would have required treatment by a medical officer if one had been available to provide treatment. (3) A medical professional is defined as a civilian physician or a physician extender. Physician extenders include nurse practitioners, physician assistants, and other medical professionals qualified to provide independent treatment (to include Special Forces medics). Medics (such as combat medics – military occupational specialty 68W) are not physician extenders. (4) A medical officer is defined as a physician with officer rank. The following are medical officers: (a) An officer of the medical corps of the Army. (b) An officer of the medical corps of the U.S. Navy. (c) An officer in the U.S. Air Force designated as a medical officer in accordance with Title 10, USC, section 101. c. 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. d. 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 TBI (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. e. Some examples of injuries which do not justify eligibility for 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). f. 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) AR20190006485 5 1