BOARD DATE: 20 July 2020 DOCKET NUMBER: AR20190009859 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 15 May 2019 * Army Purple Heart Processing Procedures Packet * U.S. Army Garrison and Fort Richardson (Provisional), Military Personnel Division, Orders 200-36, dated 19 July 2006 * DD Form 2796 (Post-Deployment Health Assessment), dated 2 December 2007Standard Form 600 (Chronological Record of Medical Care), dated 16 September 2016Officer Record Brief, dated 11 August 2017 * Statement from J____ A____, dated 27 October 2017 * Statement from J____ M. C____, dated 27 October 2017 * DA Form 4187 (Personnel Action), dated 15 December 2017 * U.S. Army Public Health Center (APHC), Clinical Public Health and Epidemiology letter, dated 2 July 2018 * Awards and Decorations Branch, U.S. Army Human Resources Command letter, dated 26 February 2019 * Medical Record extracts, dated 6 May 2019 * Walter Reed National Military Medical Center (WRNMMC) Memorandum, dated 9 May 2019, subject: Memo for (Applicant) Regarding Deployment to Iraq and Injury Following April 2007 Attack * Self-authored Memorandum for Record, undated 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. The Army should acknowledge and award him the Purple Heart for wounds he received from an enemy attack involving a chlorine-based vehicle-borne improvised explosive device (VBIED) on or around April 2007. b. The award was not issued based on the following guidance from the Awards and Decorations Branch, U.S. Army Human Resources Command: "Medical documentation from or near the event must be provided in order to determine eligibility. There is no documentation from April 2007 time frame (or closely thereafter) to show treatment by a military medical officer for this incident. We acknowledge receipt of the Occupational Health Record, dated 16 Sep [September] 2016; however, this document does not conclusively link your chemical exposure to any diagnosis or treatment, which is a requirement for award of the Purple Heart." c. Medical personnel were repeatedly notified as indicated in multiple notarized statements, but due to lack of familiarity with chemical warfare agents (CWA), they did not properly document the initial reports. This is the fault of the medical providers, not the service member. d. His wound/injury was the result of enemy or hostile act, he required treatment by medical officials, and his treatment was made a matter of official Army records. e. WRNMMC determined there are signs/symptoms supporting CWA effects and made the following diagnoses: (1) Z65.5 – Exposure to disaster, war and other hostilities; (2) Y36.7X0S – War operations involving chemical weapons and other forms of unconventional warfare, military personnel, sequela; (3) Y36.230S – War operations involving explosions of improvised explosive device (IED), military personnel, sequela; and (4) 559.4X3S – Toxic effect of chlorine gas, assault, sequela. f. His current treatment is an Albuterol inhaler. g. Most patients in the CWA program do not have timely medical documentation due to the lack of medical personnel or unfamiliarity with CWA. 3. The applicant enlisted in Regular Army on 6 January 2005. ? 4. United States Army Garrison and Fort Richardson (Provisional), Military Personnel Division, Orders 200-36, dated 19 July 2006, shows the applicant's unit, 1st Squadron, 40th Cavalry Regiment (Airborne), C Troop, was deployed in a temporary change of station status to Baghdad, Iraq, on or about 27 September 2006. 5. His DD Form 2796, dated 2 December 2007, shows his arrival date at Arab Jabour, Iraq, as 25 October 2006 and he provided the following answers to the assessment questions, in part: a. Did your health change during this deployment?: "Health got worse." b. How many times where you seen in sick call during this operation?: "2." c. Did you have to spend one or more nights in a hospital as a patient during this deployment?: "Yes." d. Do you have any of these symptoms now or did you develop them anytime during this deployment? (His positive symptoms are listed below): (1) Runny nose: "Yes, During." (2) Weakness: "Yes, During." (3) Headaches: "Yes, During." (4) Swollen, stiff or painful joints: "Yes, During." (5) Back pain: "Yes, During & Now." (6) Muscle aches: "Yes, During." (7) Dizziness, fainting, light headedness: "Yes, During." (8) Still feeling tired after sleeping: "Yes, During & Now." (9) Difficulty remembering: "Yes, During & Now." (10) Diarrhea: "Yes, During." (11) Frequent indigestion: "Yes, During." (12) Vomiting: "Yes, During." ? (13) Ringing of the ears: "Yes, During." e. Where you engaged in direct combat where you discharged your weapon: "Yes." 6. On 15 July 2009, the applicant was honorably discharged to accept a commission in the Regular Army. Item 18 (Remarks) of his DD Form 214 shows he had foreign service in: * Iraq from 4 October 2006 to 23 November 2007 * Kuwait from 13 January 2009 to 9 February 2009 7. On 16 July 2009, the applicant was appointed as a second lieutenant in the Regular Army. 8. The applicant provided a copy of his Standard Form 600, dated 16 September 2016, that shows he was examined at WRNMMC for a CWA Clinical Assessment. The attending physician noted the following: a. Injury Cause/Activity: Y36.230S – war operations involving explosion of IED, military personnel, sequela. b. Date of Injury/Accident: 1 November 2007 approximate. c. Injury Cause/Activity: Y36.7X0S – war operations involving chemical weapons and other forms of unconventional warfare, military personnel, sequela. d. The current or former service member presented for a CWA exposure (CWAE) clinical assessment. The applicant reported exposure to sulfur mustard, statin and other toxic industrial chemicals while deployed to Iraq any time from March 2003 through December 2011. e. A review of the electronic medical record yielded documentation to support that the service member was medically managed for CWAE during or following deployment. Further, a structured interview conducted by the Service-specific Public Health Center documented positive responses to health symptoms corresponding with CWAE. f. Physical findings of the lungs found – clear to auscultation; no wheezing was heard, no rhonchi were heard, no rales/crackles were heard. 9. His Officer Record Brief, dated 11 August 2017, shows his end date for his deployment to Iraq as 23 November 2007. ? 10. On 27 October 2017, J____ M. C____ provided a statement in which he stated: a. On or around April 2007, his organization secured a patrol base south of Baghdad commonly referred to as Patrol Base Red. This patrol base was in a three- story building with a large parking area and tall Alaskan cement barriers surrounding it. b. He was in the radio room during the shift change of 1st Platoon and 2nd Platoon. He heard a loud explosion from an enemy attack directly outside the patrol base. Over the radio, he heard the unit that was securing the road to Patrol Base Red report the explosion and identify a large cloud drifting from the site of the explosion towards the patrol base. As the cloud passed over their vehicles and positions, they reported getting sick and having difficulty breathing. The cloud continued into the patrol base where members of 1st and 2nd Platoons were present. c. As the cloud entered the building, it smelled distinctly of chlorine. As the Soldiers were exposed to it, they immediately began coughing and having respiratory problems. They reported getting sick and nauseous and that it burned their eyes, nostrils, and open cuts on the body. He specifically saw the applicant and another Soldier affected by the chlorine cloud and having the identified issues. d. All the Soldiers were sent to the second or third floor and they used water to wash out their eyes. The applicant and another Soldier complained of persistent burning to their throat, some of which came back or was worse hours later. e. The only medical personnel on site was a medic and he assisted in treating people's injuries by washing out their eyes with water. The incident was reported to the chain-of-command, but the concern was the direct attack and no additional medical personnel were dispatched to the location. The chlorine attack was not properly documented and there was no follow-up on the Soldiers affected. To date, he and many other Soldiers still have asthmatic issues which are similar to exercise-induced asthma, although prior to this incident, they had no similar issues. 11. On 27 October 2017, J____ A____ provided a statement in which he stated: a. In April 2007, he was assigned to Patrol Base Red, Arab Jabour, Iraq, and his unit was rotating in as 1st Platoon, C Troop, rotated out of their time at the patrol base. His unit had just pulled into the parking area and entered the building when there was a large explosion outside. He was in the entryway when he was told the units picketing the route to the patrol base had seen an explosion and an odd-looking cloud drifting from the explosion site towards the patrol base. b. When the cloud passed over Soldiers in the road, they had difficulty breathing and became nauseous. When the cloud reach the patrol base, he and others immediately noticed difficulty breathing and the smell was particularly like chlorine. It burned the skin, eyes, nostrils, and any cuts or scratches. He immediately reported the incident and attempted to put on his protective mask, but he was unable to communicate effectively. While this was occurring, the Soldiers downstairs were directed to move upstairs to flush out their eyes with water. He personally observed the applicant and another Soldier moving upstairs and demonstrating the above symptoms with complaints of burning sensation to their eyes, throat, and lungs while trying to assist fellow Soldiers at the same time. c. They had a medic on-site, but there was no additional medical treatment provided as they were staying at the patrol base for multiple days. The incident was reported to the chain-of-command, but there was no additional follow-up as they were very busy and it was not a priority at the time. 12. On 15 December 2017, the applicant's commanding officer submitted a request for his award of the Purple Heart. In his request, he noted the following: a. Date of Incident: April 2007; b. Location of Incident: Forward Operating Base (FOB) Falcon, Patrol Base Red, Iraq; c. Description of Incident: "Exposure to CWA after explosion of VBIED containing chlorine bomb at our location. [Applicant] received on site medical attention, but not evacuated." 13. The applicant provided a self-authored memorandum for record, undated, subject: Narrative for Award of the Purple Heart [Applicant], as supporting documentation to the Purple Heart request in which he stated, in part: a. He was deployed to Iraq from October 2005 through November 2006 and he was stationed at FOB Falcon (Camp Al Saqr). During the deployment, he worked out of Patrol Base Red in Arab Jabour. b. In April, he was Assistant Team Leader and conducting the transition with 1st Platoon at Patrol Base Red. They departed FOB Falcon headed north on Route Jackson, east on Route Sanders and south on Route Redwings. The route was secured by an adjacent unit providing over watch. At Patrol Base Red, he and his Soldier entered the building, while 1st Platoon prepared to depart. c. He heard a loud explosion that appeared to be just outside of the patrol base to the northwest. The securing unit reported that a large explosion had occurred just north of the patrol base and a cloud was heading from the blast site towards the patrol base. Soldiers of the securing unit reported becoming nauseous, fits of coughing, and difficulty breathing. d. When the cloud reached the patrol base, it had a distinct smell of chlorine. It burned the eyes, any exposed cuts or scrapes on the skin, and he immediately had difficulty breathing. He moved his Soldiers to the third floor and a medic began flushing their eyes and skin. He felt lasting chest pains and difficulty breathing which exhibited itself in the form of asthma. His wheezing was still present to date. e. They had a medic on site, but there was no additional medical treatment provided to any of the Soldiers at the patrol base. Although this was reported to the chain-of- command, no follow-up was performed due to the high operations tempo of the organization. 14. The applicant provided an extract of his medical records, dated 18 June 2018, that shows the attending physician noted the following: "Exposure to disaster, war and other hostilities Z65.5: (1) SM (service member) was evaluated for suspected exposure to (mustard/nerve agent) agent while deployed OIF/OND) (Operation Iraqi Freedom/ Operation New Dawn) between 2003 and 2001. (2) After a thorough history taking and focused physical exam, there was evidence of signs and/or symptoms of chemical warfare agent effects related to the respiratory system." 15. On 2 July 2018, the Program Manager, Environmental Medicine Program, APHC, advised the applicant of his CWA Exposure Assessment and stated: a. The APHC became aware in October 2014 that some service members may have been exposed to CWA or weaponized toxic industrial chemicals (WTIC) while deployed to Iraq between 2003 and 2011. The applicant was identified as potentially being one of those service members and he was invited to become a participant in the CWA Exposure Assessment. b. After a comprehensive review of the records and notes, the applicant was determined to likely have had a symptomatic exposure to chlorine. He was advised he qualified for further actions to explore his potential exposure to CWA or WTIC. c. His pulmonary function testing conducted on 16 September 2016 was found normal. His pulmonary consultation determined his most likely diagnosis was exercise- inducted asthma. He was prescribed an Albuterol inhaler and advised to follow-up with his duty station pulmonary clinic. d. He was determined to likely have had a symptomatic exposure to chlorine and to have persistent health effects associated with this exposure. He was advised to contact his local Department of Veterans Affairs medical center for registry and further evaluation further evaluation. Additionally, he was advised his long-term follow-up included being contacted in 5 years. 16. On 26 February 2019, the Chief, Award and Decorations Branch, U.S. Army Human Resources Command, advised the applicant that they were unable to retroactively authorize his award of the Purple Heart. The applicant was advised to provide medical documentation from or near the event to determine eligibility. This office noted that there was no documentation from the April 2007 timeframe (or closely thereafter) to show treatment by a medical officer for this incident. Further, receipt of his Occupational Health Record, dated 16 September 2016, was acknowledged. However, it was noted this document did not conclusively link his chemical exposure to any diagnosis or treatment, which is a requirement for award of the Purple Heart per Army Regulation 600-8-22 (Military Awards). He was advised of his appeal right to the ABCMR if he disagreed with the determination. 17. On 4 March 2019, the Department Chief, Occupational Medicine, WRNMMC, added a note to the 18 June 2018 medical record extract wherein he stated: a. He spoke with the applicant over the phone. The applicant still had respiratory complaints following his chlorine gas incident and reported that he was using Albuterol as needed for symptom control. b. After review of the previous physician's note, he wished to add that chlorine gas exposure (even one time) could lead to chronic respiratory symptoms (such as reactive airway dysfunction syndrome and irritant-induced asthma). c. Prescribing a short-acting beta agonist (such as Albuterol) was a reasonable treatment for someone with breathing difficulties following an exposure to chlorine gas. 18. On 9 May 2019, the Department Chief, Occupational Medicine, WRNMMC, concurred with a previous medical assessment of the applicant and stated that: a. The patient (applicant) had pulmonary symptoms consistent with chlorine gas exposure. b. Regarding the lack of medical documentation, many patients in the CWA Program often did not have medical documentation (likely due to lack of medical personnel or provider unfamiliarity with chemical warfare agent injuries). Chlorine gas also rapidly volatilizes and dissipates in the environment (making testing for it difficult, even if services member had the proper equipment). c. Regarding the pulmonologist's comment that they would have expected fixed obstructions, chlorine gas exposure is also known to cause asthma-like symptoms that wax/wane or flare up. 19. The applicant is presently serving in the Regular Army in the rank of captain. BOARD DISCUSSION: 1. After reviewing the application and all supporting documents, the Board found the requested relief is warranted. 2. The Board agreed that the evidence shows the applicant was exposed to a chemical agent released by the enemy and he was injured by the chemical agent. Although he did not receive treatment by a medical officer at the time, the evidence he has provided shows he should have received such treatment had it been available. His current respiratory health is evidence of the degree to which he was affected by the chemical agent. By a preponderance of the evidence, the Board determined the applicant is entitled to the Purple Heart for the injuries he incurred as a result of hostile action in April 2007. 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 him the Purple Heart for injuries incurred as a result of hostile action in April 2007 and by adding the Purple Heart to his DD Form 214 for the period ending 15 July 2009. 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, United States Code, section 1552(b), provides that applications for correction of military records must be filed within 3 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 3 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 prescribes Army policy, criteria, and administrative instructions concerning individual and unit military awards. 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 that 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. 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. b. 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. c. 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. Refer to paragraph 2–8l for additional information. d. 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). //NOTHING FOLLOWS// ABCMR Record of Proceedings (cont) AR20190009859 10 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1