ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS IN THE CASE OF: BOARD DATE: 14 November 2019 DOCKET NUMBER: AR20190011547 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) * DA Form 4187 (Personnel Action) * DD Form 214 (Certificate of Release or Discharge from Active Duty) * Orders * Personal Statements * Medical documents * Enlisted Record Brief (ERB) * Personnel Qualification Record * 2 Statements of support * Memorandum to Army Human Resources Command (AHRC) * Memorandum from AHRC * Personnel Qualification Record * 3 DA Forms 2173 (Statement of Medical Examination and Duty Status) he * PH Checklist * 2 Line of Duty (LOD) memorandums 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. On 21 September 2007, he was in a convoy with an Arizona Army Reserve Military Police unit. This unit was their relief and was replacing his unit. During this time the Humvee he was in was hit on the left side by an improvised explosive device (IED). He was sitting behind the driver. The Humvee shook violently and filled with smoke. His head and ears starting ringing and he was dazed. He does not remember hearing the blast or any communications in his head set. When he gained his composure, he checked on the rest of the service members in the Humvee. The driver told him he was having a hard time steering the Humvee and it would not shift out of 1st gear. He then called up to higher with a green report on personnel and red on the Humvee. b. They went immediately back to patrol base and were seen by the Physician Assistant (PA). The left side of the Humvee was covered with shard metal and the driver and passenger window were broken and embedded with shard metal. It was about 3 or 4 days later his arms and hands started to go numb. The headaches would come and go. He was also having pain in his neck and right shoulder. The ringing in his left ear has never gone away. The next day they were mission complete and started the process to leave Iraq and get back to the states. When they got to Camp Shelby, Mississippi, he told the medical staff his Humvee was hit with an IED and something was wrong with his neck and shoulder. He was told he had a pinched nerve due to his body armor and would be ok in 2 or 3 weeks. c. He told one of their representatives what he was told. Their representative inquired to see if he could be sent to Hattiesburg hospital, however, he was refused at that time. He was advised to start his paper work with the Department of Veterans Affairs (VA) so he could receive treatment for his injuries. It took some time for VA to schedule an MRI and the surgical procedures he had to have. He was told by the neurosurgeon at VA he had a cracked vertebrae and a ruptured disc in his neck. The orthopedic surgeon at VA said his main tendon and a muscle in his right arm was torn in two and the muscles were torn off the bone. He had two surgeries at a VA hospital located in Birmingham, Alabama. d. AHRC denied his request for a PH. He documented through the enclosed packet he was injured in Iraq due to contact with the enemy. The injuries he sustained were determined to be in the line of duty (LOD) and are well documented through medical treatment records. He has enclosed documents confirming his convoy was engaged by the enemy. His vehicle took the direct hit and he was treated immediately upon returning to the patrol base. 3. The applicant is currently serving in the United States Army National Guard (ARNG) in the rank of master sergeant (MSG). 4. The applicant was ordered to active duty on 8 June 2006, in support of Operation Iraqi Freedom. He entered active duty on 13 June 2006. 5. He served in Kuwait/Iraq from 16 October 2006 to 10 October 2007. 6. A Chronological Record of Medical Care shows the applicant was seen on 21 September 2007, due to an IED blast. There was no loss of consciousness. 7. A DA Form 2173, dated 30 September 2007, shows the applicant was seen on 22 September 2007, for an accident which occurred on 21 September 2007. The nature of the injury was IED headache and bilat tinnites. A Formal LOD investigation was not required. The injury was considered to have been LOD. 8. On 4 November 2007, the applicant was honorably released from active duty and transferred back to his ARNG unit. 9. A DA Form 2173, dated 11 December 2007, shows the applicant was seen on 21 September 2007, for an accident which occurred on 21 September 2007. The nature of the injury was concussion NOS, head. A Formal LOD investigation was not required. The injury was considered to have been LOD. 10. A DA Form 2173, dated 28 May 2008, indicates the applicant was seen on 28 May 2008 and diagnosed with cervical radiculopathy and a rotator cuff tear. A form LOD investigation was not required and the injury was considered to have been occurred LOD. 11. A DA Form 4187, dated 31 December 2015, shows the applicant requested award of the PH for an incident on 21 September 2007. On 9 March 2006, the Adjutant General, Alabama approved the request. 12. On 19 September 2019, Chief, Soldier Programs and Services Division, disapproved the request for award of the PH pertaining to the applicant. The disapproval letter stated, in part, there were no supporting medical records in Armed Forces Health Longitudinal Technical Application at or near the time of the incident on 21 September 2007 in support of a traumatic brain injury. Additionally, a note in his file stated his primary complaint was ringing in the ears. Tinnitus does not qualify for award of the PH. The disapproval letter is available for the Board's review and consideration. 13. On 19 September 2017, Colonel, ARNG, Deputy Chief of Staff Personnel, submitted a letter to AHRC requesting reconsideration for award of the PH. He stated, in part, the applicant was severely injured in combat operations. Due to minimal time in theater a LOD Investigation was not completed. When the applicant arrived at his post-mobilization site, he received three LOD investigations to document injuries received in theater not previously documented. While at the post- mobilization site, the applicant's neck injury was misdiagnosed. He worked with Veteran Affairs representatives over the next several months to receive a correct diagnosis and the surgery he needed. The applicant suffered almost a year in order to receive proper treatment and surgery for the injuries occurred in Operation Iraqi Freedom. Once the chain of command recognized the wrong LOD was submitted with the PH packet, a search was initiated to determine if there was a LOD investigation for the injury the applicant believes earned him the PH. The chain of command was able to locate the correct LOD and included it in this resubmission. 14. The applicant provides the following statements of support: a. A statement from. which states in September 20078, the applicant suffered an IED attack while on patrol. After the convoy returned to the patrol base, he went out to greet them and learned the applicant was hit by a road side bomb. The Humvee the applicant was in took damage on the side where the applicant was located. The applicant sought medical aid at the patrol base. b. A statement from., states, in part, in late September 2007, he was in a convoy in Iraq and the vehicle the applicant was in took a direct hit to the left side with an IED. When they arrive back to the patrol base the individuals who were in the vehicle taking the hit was seen by the medical staff. He recalls the applicant missing some drill due to recovery from the incident in Iraq. 15. Army Regulation 600-8-22 (Military Awards) prescribes the Army's awards policy. Paragraph 2-8 contains the regulatory guidance pertaining to award of the PH. It states that in order to support award of the PH there must be evidence that the wound for which the award is being made was received as a result of enemy action, that the wound required treatment by medical personnel, and that medical treatment was made a matter of official record. 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, the nature of his injuries and subsequent determination that he sustained injuries in line of duty, subsequent requests for award of the Purple Heart, the review by HRC and the statements of support provided by the applicant. The Board found the documented nature of his injuries at the time of the incident do not meet the criteria for award of the Purple Heart; there was insufficient evidence to determine the applicant suffered a traumatic brain injury, there was no loss of consciousness, the contemporaneous diagnosis was “headache and bilat tinnitus”. Based on a preponderance of evidence, the Board determined that there was no error or injustice requiring a correction to the applicant’s record. 2. After reviewing the application and all supporting documents, the Board found that relief was not warranted. 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. 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) provides that 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. a. Examples of enemy-related injuries which clearly justify award of the Purple Heart are as follows: * injury caused by enemy bullet, shrapnel, or other projectile created by enemy action * injury caused by enemy-placed trap or mine * injury caused by enemy-released chemical, biological, or nuclear agent * injury caused by vehicle or aircraft accident resulting from enemy fire * concussion injuries caused as a result of enemy-generated explosions * mild TBI or concussion severe enough to cause 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 b. Examples of injuries or wounds which clearly do not justify award of the Purple Heart are as follows: * frostbite (excluding severe frostbite requiring hospitalization from 7 December 1941 to 22 August 1951) * trench foot or immersion foot * heat stroke * food poisoning not caused by enemy agents * chemical, biological, or nuclear agents not released by the enemy * battle fatigue * disease not directly caused by enemy agents * accidents, to include explosive, aircraft, vehicular, and other accidental wounding not related to or caused by enemy action * self-inflicted wounds, except when in the heat of battle and not involving gross negligence * PTSD * airborne (for example, parachute/jump) injuries not caused by enemy action * hearing loss and tinnitus (for example, ringing in the ears) * mild TBI or concussions that do not either 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 * abrasions and lacerations (unless of a severity to be incapacitating) * bruises (unless caused by direct impact of the enemy weapon and severe enough to require treatment by a medical officer) * soft tissue injuries (for example, ligament, tendon, or muscle strains, sprains, and so forth) * first degree burns NOTHING FOLLOWS ABCMR Record of Proceedings (cont) AR20190011547 6 1