ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS BOARD DATE: 10 December 2019 DOCKET NUMBER: AR20190008413 APPLICANT REQUESTS: award of the Purple Heart. APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: * DD Form 149 (Application for Correction of Military Record) * self-authored statement * U.S. Army Installation Management Command, Pacific Region Permanent Orders C286-24, dated 13 October 2007 * several pages of medical records, dated December 2008 * 12 DA Forms 2823 (Sworn Statement) * Headquarters, 2nd Stryker Brigade Combat Team Permanent Orders 040-216, dated 9 February 2009 * several pages of medical records, dated June –July 2009 * Medical Summary, dated 6 April 2017 * Enlisted Record Brief, dated 11 April 2017 * several pages of medical records, dated August 2017 * DD Form 214 (Certificate of Release or Discharge from Active Duty) * letter from U.S. Army Human Resources Command (HRC) Awards and Decorations Branch, dated 20 March 2019 * memorandum to HRC Awards and Decorations Branch, dated 17 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. After receiving a call to respond to an improvised explosive device (IED) on 8 December 2008, his security team and the explosive ordnance disposal technician moved to the IED location. While cautiously moving to the suspected location, his truck was struck by an IED. He remembers a loud noise, his eyes closing, and after some time opening them to dust and dirt everywhere. After the ringing in his ears mellowed, he heard his name being called from outside of the vehicle’s wreckage then he began to call out to the other Soldiers in his vehicle for accountability and to see if they were ok. b. Specialist (SPC) N____, the medic, was the first to respond to his calls. Still dazed after the blast, he attempted to remove his seatbelt, but had great difficulties deciphering up from down. SPC G____, the driver, was in and out of consciousness, but he continued to talk to him in an attempt to keep him awake. Through their conversations he did his best to find a way to get himself and SPC G____ out of the vehicle, but this was extremely difficult due to the mangled metal that surrounded them. Sergeant (SGT) W____ stood outside the vehicle assisting with the removal of fellow Soldiers before he was able to the applicant and SPC G____ out. They first attempted to remove a hatch that trapped them inside, then SPC G____ and SGT W____ and himself pushed and pulled on the driver’s door which refused to budge. When they finally wedged thee gunner’s hatch open and began cutting wires and removing metal, he told them both to stabilize SPC G____’s head and he proceeded to push him through the opening. c. When the first of the Casualty Evacuation (CASEVAC) team came, he assisted in the loading of the more seriously injured from his team. Still a bit dazed and attempting to make sense of what had just happened, he did his best to assist in the recovery of debris while he and SPC N____ waited for the arrival for the final CASEVAC. Upon returning to Camp Liberty, he was examined by the aid station medic. He scored slightly low on the Military Acute Concussion Evaluation (MACE). He was given Motrin for his soft tissue injuries, put on quarters, and told to follow up in 24 hours. When he followed up the next day he was put on quarters for another 48 hours. d. Some medical specialists call traumatic brain injury (TBI) the “signature injury” of the Iraq War, but he calls it the most significant and life altering incident of his life. He has had computerized tomography (CAT) scans and magnetic resonance imaging (MRI) done in the years following this incident. The findings ranged from white spots on his brain to a concussion and amnesia. Although his scars cannot be seen at first glance, he suffers daily from migraines, depression, severe anxiety, bouts of anger, hypervigilance, insomnia, memory loss, and has had extreme difficulty putting his life back together since returning from Iraq in 2009. e. He deployed in 2007 as Staff Sergeant I____ and returned home a walking montage of every emotion in the dictionary, and to those who knew him well, as “someone they no longer recognized.” He struggles with memory and some cognitive functioning which makes new things hard for him to learn. Note taking has become a must in his everyday life because he can’t even remember the most recent of things. His nightmares leave him either awake at night or waking up in a puddle of sweat and tears. His wife has also been a recipient of pain caused by his arms and legs as they flail unknowingly in his sleep. All nine of his children are victims of either an emotionally absent father or an angry man of many outbursts. These consequences, ramifications, and repercussions have left an aftermath that he works day in and day out to get control over. Not only is he deserving of a Purple Heart because of his almost 20 years of dedication to the U.S. Army, but also because a piece of him died that very day. Each day he walks here on American soil, thankful to be alive, but every nightmare leaves him sleepless and in tears. 3. The applicant enlisted in the Regular Army on 19 May 1998 and served in Afghanistan from 24 April 2004 through 24 April 2005. 4. He deployed to Iraq in support of Operation Iraqi Freedom on 7 December 2007. 5. A Medical Record, dated 8 December 2008 shows the following: a. The applicant was seen at a Theater Clinic on 8 December 2008 due to injury from terrorist explosion of IED that occurred 2-3 hours prior to the visit. The applicant stated they were going down Hurricane Street when he heard a boom, after which he remembered feeling confused and being unsure of where he was in the vehicle. He denied any ringing in his ears and was wearing head protection. He stated he did not recall having loss of consciousness (LOC). He complained of a headache and a sore left arm and leg. b. He was awake, alert, oriented to time, place, and person, in no acute distress, not chronically or acutely ill or exhausted; there was no evidence of a head injury c. The assessment and plan (A/P) shows slight amnesia and possible LOC about what happened and where he was right after the IED blast. He scored 28/30 on the MACE exam; neurological system deemed intact. The A/P also states concussion with brief LOC (under 1 hour); the applicant had brief amnesia versus LOC after the blast and had mild decrease in MACE, but likely normal; MACE will be repeated in morning to see if better. The applicant was without focal findings at the time. d. His disposition was sick at home/quarters for 24 hours and follow up as needed. 6. A Medical Record, dated 10 December 2008 shows: a. The applicant was seen for a follow-up/reexamination on 10 December 2008. At the exam on this date he complained of pain in his back, left elbow and leg. He stated he remembered hearing a boom, the vehicle starting to roll on its side, but after that he was confused and did not know where he was. Afterward he got up and started to attend to the wounded. b. He had elbow symptoms of soft tissue pain after hitting the vehicle when the IED hit and his back pain started the next day. He had generalized pain; to include in his leg, all symptoms of which were due to the IED blast. c. The A/P states the applicant passed the MACE exam with a 28/30, only missing 2 points on the delayed recall portion. He seemed a little shaken after the blast. There seemed to be a small amount of LOC/amnesia because he was confused and did not know where he was. He also had soft tissue injuries on left army, leg and back after the blast. d. The A/P further states applicant was already taking and told to continue taking 800 milligrams of Motrin for the inflammation and 500 milligrams of Tylenol for pain relief. He was also told to ice the wounds. He was found neurologically sound and told to take a few days to rest and relax then to return to the aid station if no improvement shown. The applicant was involved in a serious blast from an IED and all occupants in the vehicle were likely unconscious for a short period of time. e. He was released without limitations and told to follow up as needed. 7. The applicant provided 12 DA Forms 2823, dated between 8 December 2008 and 15 December 2008. The Sworn Statements all detail the 8 December 2008 IED explosion from the points of view of the various Soldiers involved in the incident. a. The applicant’s statement recounts the details of the IED explosion similarly to his self-authored statement to the Board recounted above. He states when his vehicle struck the IED he heard a loud noise and the next thing he remembered was looking at brown in his window wondering how it got there and what direction he was facing. He then yelled to the other occupants of the vehicle to check they were ok and proceeded to assist with recovery efforts. b. While the applicant is referenced in some of the other statements, none of the other statements speak to the applicant’s LOC, TBI symptoms, injury, or medical treatment after the IED explosion. 8. Headquarters, 2nd Stryker Brigade Combat Team Permanent Orders 040-216, dated 9 February 2009, awarded the applicant the Combat Action Badge for actively engaging or being engaged by the enemy on 8 December 2008. 9. He redeployed from Iraq on 24 February 2009. 10. A Medical Record shows the applicant was seen on 8 June 2009 for a history of memory lapses and underwent a clinical interview and evaluation of his neuropsychological functioning on that date and on 17 June 2009. 11. He deployed to Iraq again from 13 February 2011 through 17 September 2011. 12. A Medical Summary, dated 6 April 2017, shows the applicant was diagnosed with post-traumatic stress disorder, major depressive disorder, chronic insomnia, history of mild TBI, left shoulder pain, chronic kidney disease, hypertension, headaches, and asthma. A medical record, dated 8 August 2007, shows he was diagnosed with adjustment disorder, unspecified, hypertension, stage III kidney disease, headaches, left-hand paresthesia, chronic knee pain, occupational stressors and familial stressors. 13. His DD Form 214 shows he was retired on 28 June 2018 due to temporary disability, after 20 years, 1 month, and 10 days of net active service. 14. A letter from HRC, Awards and Decorations Branch, dated 20 March 2019, informed the applicant his request for award of the Purple Heart was not granted. After review of all available medical documentation, they were unable to locate diagnosis of or treatment for a qualifying injury per Army Regulation 600-8-22 (Military Awards). a. The criteria for award of the Purple Heart require it to be awarded for wounds received as a direct result of enemy action. The wound must have required treatment by a medical officer and been made a matter of official records. Military medical documentation from immediately after or close to the incident reflecting a diagnosis of and treatment for a qualifying wound must be provided. b. They acknowledged receipt of his medical records from 8 December 2008 which reflects his medical examination following his involvement in an IED blast on the same date. This document details an initial assessment of concussion with loss of consciousness, for which he was assigned to quarters for 24 hours. On 10 December 2008, he was prescribed ibuprofen and acetaminophen for pain caused by his soft tissue injuries, as well as ice to reduce swelling and was released without limitation following this examination. They are unable to authorize the Purple Heart for injuries such as abrasions, bruises, or soft tissue injuries. c. They were additionally unable to utilize the 6 April 2017 Medical Summary to justify issuance of the Purple Heart, as they were unable to conclusively link the diagnosis of mild TBI to the IED blast in question. 15. A 17 May 2019 memorandum addressed to HRC, Awards and Decorations Branch, signed by First Lieutenant A____ H____, legal assistance attorney, states: a. On or after 11 September 2011, the Purple Heart will be awarded 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 his/her status in the Armed Forces, unless the death or wound is the result of the member’s willful misconduct. b. The applicant’s medical records show he was injured by a terrorist explosion IED on 8 December 2008. He was targeted by a terrorist organization due to his status as a member of the Armed Forces and there was no willful misconduct on his part, therefore he satisfies this element of the requirement for award of the Purple Heart. c. Army Regulation 600-8-22 stipulates to be considered wounded, the wound must have been of such severity that it required treatment, not merely examination, but a medical officer. A wound is defined as an injury to any part of the body from an outside force or agent. Concussions and/or mild TBI cause by enemy-generated explosions that result in LOC 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 are qualifying wounds for Purple Heart eligibility. d. The applicant’s medical records clearly show he suffered a concussion with brief LOC due to an enemy-generated explosion, rendering him eligible for award of the Purple Heart. The fact that he was also diagnosed with soft-tissue injuries on a follow-up appointment does not negate that he was concussed and lost consciousness prior to that appointment. His records clearly show he is eligible for award of the Purple Heart. BOARD DISCUSSION: 1. The Board carefully considered the applicant’s request, supporting documents and evidence in the records. The Board considered the applicant’s statement, his record of service to include deployments, circumstance of his concussive injury, the assessment of LOC and amnesia, his MACE test results, treatment, assignment of quarters and follow-up, his longer term medical issues and his medical retirement. The Board considered the statements provided describing the incident and the residual medical issues noted in his records. The Board considered the review and conclusions of the AHRC consideration and the criteria for award of the Purple Heart in the event of concussive injuries. Based on a preponderance of evidence, the Board determined that the applicant should be awarded for wounds received as a result of engagement with the enemy. 2. After reviewing the application and all supporting documents, the Board found that relief was warranted. 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: - awarding the applicant a Purple Heart for a concussive injury received on 8 December 2008 in Iraq. - adding PH to the DD Form 214 for the period of service ending 28 June 2018. 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 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 Purple Heart 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 the Secretary of the Army approved Army Directive 2011-07 (Awarding the Purple Heart). 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 Purple Heart for concussions (including mild traumatic brain and concussive injuries that do not result in a loss of consciousness). a. HRC verified award of the Purple Heart 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 mTBI 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 ABCMR Record of Proceedings (cont) AR20190008413 7 1