ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS IN THE CASE OF: BOARD DATE: 14 November 2019 DOCKET NUMBER: AR20190011552 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) * Copy of Army Directive 2011-07 (Awarding the Purple Heart) * Letter from Congressman * Letter to Congressman * Letter from Army Human Resources Command (AHRC) * Letter of Recommendation * Letter from Physician Assistant/Speech Language Pathologist * Travel Order * Medical documents * Timeline of events * 6 Sworn statements * Personal statement 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 is asking for an appeal to reconsider the disapproval for award of the PH while deployed in support of Operation Enduring Freedom. The injury he received has had long lasting effects and requires continuous treatment for traumatic brain injury (TBI). His injury meets the criteria for awarding of the PH; however, he was disapproved due to the Afghanistan National Army (ANA) Soldier being considered a friendly force. The error he would like to highlight for this appeal is that the ANA Soldier was not a friendly force, but an infiltrator in the ranks of the ANA with the goal to disrupt relations between the United States and the ANA. His actions were intentional and meant to commit harm or death to U.S. Soldiers. The ANA Soldier was arrested for his actions and was considered an enemy of the United States as stated in sworn statements. The ANA Soldier was also blacklisted and barred from working with any U.S. Soldiers and banned from all U.S. installations. b. On or about 8 April 2013 around 0800 hours at Forward Operating Base Wolverine, he and other Soldiers, along with their Guardian Angels protection detail, met with the Afghanistan National Army Artillery at the front gate. From the front gate they would escort the Afghanistan Soldiers to the Entry Control Point where they would be scanned for weapons and contraband. After the Soldiers were scanned, they would receive identification cards. On this morning, most of the Soldiers had aggressive attitudes and would snatch their identification cards. When the Soldiers would snatch their identification cards they would give an aggressive stare. When this happened, they were alerted and knew the Soldiers' attitudes were very different from their last training session. c. When all the Soldiers were accounted for, they were escorted to the trucks to be transported to a secured area where they would conduct D30 Howitzer training. At the training site, he gave instructions to the D30 Howitzer sections to clean their D30 because they conducted a live fire exercise. All sections began cleaning the D30 Howitzer as instructed, as he walked around and supervised, a Soldier from the fast D30 Howitzer section, which was on left side the training area, called for him to look at something on their D30 Howitzer. As he arrived to the D30 Howitzer, one of the Soldiers wanted to him to look down into the breech. He was told this Soldier was not to be trusted. He asked the Soldier what he wanted, and the Soldier instructed him to look at the breech. When he knelt down to look at the breech, the Soldier moved over towards the breech lever. As he began to inspect the breech, it was open and clean. The Soldier pulled up on the breech lever, which caused the breech to close and the breech bar closed down with breech with approximately eighty pounds of pressure that stuck him above his left eye. d. After the strike, he fell down and felt intense pain on his head. He kept his eyes closed and would see white dots. He was helped to his feet and walked over to a bunker located behind the Howitzer. With his eyes closed, he could hear the Guardian Angels taking control of the Afghanistan Soldiers and made sure they kept their distance from me. He felt warm liquid running down his face. When he opened his eyes, he was unable to see nothing out of his left eye but red. He was then escorted to the medical treatment facility to receive treatment for his injury. At the medical treatment facility, he received approximately six stitches above his left eye. He was given medicine for his head and seventy two hours of light duty along with follow ups to check the status of his injury and head. e. After being treated, he was taken to speak to the Counter Intelligence of personnel of the incident. The Counter Intelligence personnel interviewed the Afghanistan Soldier who committed the offense. The Soldier was removed from the forward operating base and was never able to enter a United States base again. The Soldier was thrown in jail for his actions by the ANA colonel in charge of the Afghanistan base. 3. The applicant is currently serving on active duty in the rank of sergeant first class (SFC). 4. The applicant provides: a. A letter from Deputy Chief Physician and Speech Language Pathologist, Winn Army Community Hospital, dated 29 July 2015, states, in part, the applicant was treated downrange for a laceration above his left orbital cavity secondary to an Afghanistan Soldier attempting to close an artillery device on his head. The applicant received stiches and quarters for the day. He was not treated for concussions symptoms. During reintegration in June 2013, the applicant was screened for TBI and results were positive for concussion secondary to the symptoms he was experiencing as a result of the blow to his head. He continues to have headache and sleep difficulties. Currently he is being treated by TBI providers for headaches and cognitive-communication impairments. b. Six sworn statements which all state in effect, on or about 8 April 2013, an Afghanistan Soldier intentionally pulled the breech lever to close on the applicant's head. The applicant received a laceration above his left eye. He was quickly escorted to the medical aid station for treatment. The Soldier who committed the attack was detained and taken for questioning. The Afghanistan Solder was kicked off the base and arrested by the ANA Colonel for his actions. All of the witness statements are available for the Board's consideration and review. c. A Letter of Recommendation from captain dated 16 August 2016, states, in part, he was not present for the incident that occurred in April 2013, however, he obtained multiple witness statements supporting the probability the ANA Soldier's actions against the applicant should be considered as a hostile act, regardless of the ANA uniform the Afghan Soldier donned on that day. Medically speaking, it is clear the applicant's injuries from the incident on 08 April 2013, meets the criteria for the PH. Following the incident, all ANA Soldiers were escorted off of the FOB and the individual responsible was arrested for his actions. The report was initially labeled as a Green on Blue attack, but would eventually be downgraded before the Criminal Investigation Division (CID) completed their investigation. He does not believe the downgrading of the Green-on-Blue investigation that followed this incident is reason enough to exclude the possibility this was a premeditated hostile act from a disguised enemy. The possibility remains political pressure existed to continue training and avoid a potential setback in American-Afghan Military partnerships. The ability to reference the results of the CID investigation is not possible, due to the report being classified. d. A letter from Chief, Soldier Programs and Service Division, AHRC, dated 22 February 2017, which states, in part, after a thorough review of the information provided, award of the PH for this particular event does not meet the statutory guidance outlined in Army Regulation 600-8-22 (Military Awards). While unfortunate, the injury was caused by an Afghanistan Soldier and the Afghanistan Army is considered a friendly force. Since the injury was not caused by a declared enemy this incident does not qualify for award of the PH. 5. 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 and circumstances of his injury, the treatment required, the statements in support of the applicant and the policy pertaining to the award of the Purple Heart. Based on the preponderance of evidence, the Board determined that the evidence was insufficient to conclude that the injury the applicant sustained was a result of enemy action and therefore did not qualify for award of the Purple Heart. 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) AR20190011552 7 1