ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS BOARD DATE: 1 September 2020 DOCKET NUMBER: AR20190012798 APPLICANT REQUESTS: correction of his DD Form 214 (Certificate of Release or Discharge from Active Duty) to show award of the Purple Heart. APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: * DD Form 149 (Application for Correction of Military Record), dated 27 September 2019 * Certificate of Training for the period 18 June 2002 to 20 June 2002 * DA Form 2173 (Statement of Medical Examination and Duty Status), dated 22 October 2013 * two DA Forms 2823 (Sworn Statement) * Department of Veterans Affairs (VA) Rating Decision, page 3, dated 23 February 2015 * DD Form 214 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 suffered wounds incurred from an improvised explosive device (IED) blast in Iraq on 10 September 2005. b. The detonated device was located 60 meters from his position. c. He was knocked unconscious and blown over a Humvee (High Mobility Multipurpose Wheeled Vehicle). He was administered first aid by a squad member, Staff Sergeant (SSG) R_____ H_____, his squad leader. A few years later, he was treated at the Wilkes-Barre Veterans Administration Center, where the emergency room physician pulled shrapnel from the left side of his face.? d. He believes award of the Purple Heart will accurately reflect his combat record and his service in Iraq. 3. Having prior honorable service in the Regular Army, the applicant enlisted in the Army National Guard on 7 August 1996. 4. He provided a copy of his Certificate of Training showing he successfully completed the Combat Lifesaver Course for the period 18 to 20 June 2002. 5. On 22 January 2005, he was ordered to active duty in support of Operation Iraqi Freedom. 6. His DA Form 2-1 (Personnel Qualification Record) shows in: a. item 5 (Oversea Service) – service in Kuwait/Iraq during the period 15 June 2005 to 16 June 2006; b. item 6 (Military Occupational Specialty (MOS)) – primary military occupational specialty (MOS) 11B20, Infantryman; c. item 8 (Awards, Decorations, and Campaigns) – no award of the Purple Heart; d. Section VII (Current and Previous Assignment), in part, on 6 October 2005, he was involuntarily ordered to active duty with Company B, 1st Battalion, 109th Infantry Brigade in support of Operation Iraqi Freedom for a period not to exceed 400 days. 7. On 4 July 2006, the applicant was honorably released from active duty and he returned to his Army National Guard unit. Item 13 (Decorations, Medals, Badges, Citations, and Campaign Ribbons Awarded or Authorized) of his DD Form 214 for this period does not show award of the Purple Heart. 8. He provided copies of: a. a DA Form 2823, dated 15 April 2007, from Sergeant First Class J____ L____ S____, dated 15 April 2007, wherein he stated, in part: (1) On or about 6 August 2005, anti-Iraqi forces (AIF) command detonated an IED while escorting Navy EOD (Explosive Ordinance Detachment) 632 Eastings. The applicant and another Soldier were within 75 meters of the blast. Post blast analysis determined the device to be two 155 millimeter artillery rounds. (2) On or about 20 August 2005, AIF command detonated an IED while escorting Navy EOD 636 Eastings. A secondary IED was detonated on the security element. Post blast analysis determined the initial device was a 155 millimeter artillery round with fuel accelerant. The second round was an 81 millimeter mortar round. The applicant and another Soldier were within 100 meters of the initial charge.? (3) On or about 26 August 2005, AIF command detonated an IED while escorting Marine EOD 635 Eastings. The applicant and another Soldier were within 70 meters of the detonation. The device was determined to be two 155 millimeter artillery rounds. Secondary IED targeted convoy of EOD and Panther Wrench element. (4) On or about 30 August 2005, AIF command detonated an IED while escorting Marine EOD 635 Eastings. The applicant and another Soldier were within 70 meters of the detonations. He assessed both Soldiers and the applicant complained of headache, ringing ears, blurry vision, and he was vomiting. He initiated evacuation to the 110th Infantry Battalion Aid Station. The commissioned officer in charge, a lieutenant, was told the Soldiers were within 70 meters of the explosion. The lieutenant explained the "standoff was 300 meters" and questioned why the Soldiers were so close. The lieutenant was only concerned that the Soldiers were within the "standoff distance" and he made no attempt to assess the injuries of the Soldiers. No other personnel made attempts to treat these Soldiers. Both Soldiers were placed on restricted duty for 72 hours. Post blast analysis determined the device was a triple stack of 155 millimeter artillery rounds. (5) On or about 1 September 2005, AIF engaged Marine EOD and a security element along Main Supply Route Michigan at the 628 Eastings. Although initially restricted to quarters, the applicant and another Soldier led the security element, a detail normally reserved for a platoon. Both Soldiers were two of only three Soldiers assigned to this mission, necessitating their continued deployment, regardless of injuries. A EOD U.S. Navy corpsman was struck by enemy fire. The Soldier with the applicant assisted with the medical evacuation while the applicant and other Soldier followed the command detonation wire of the device, searched a building, and detained one individual, the triggerman. (6) On or about 3 September 2005, AIF command detonated an IED while escorting Marine EOD along Main Supply Route Michigan to the 635 Eastings. The EOD robot was destroyed. The applicant and another Soldier were within 75 meters of the blast and suffered burns to the face as well as being struck by parts of the destroyed robot. Small arms fire was placed on the security element while they searched for a triggerman. The device was determined to be two to three 160 millimeter mortar rounds. (7) On or about 10 September 2005, AIF command detonated an IED on the Marine EOD detachment and security element on Main Supply Route Michigan at the 635 Eastings. The applicant was thrown over the EOD M1114 and temporarily unconscious. He complained of headache, tunnel vision, bleeding from the nose, and he was disoriented for several minutes. First Lieutenant W____ again placed both Soldiers on restricted duty and kept them under observation for closed-head injury. Post blast analysis determined the blast to be two 155 millimeter artillery rounds with an acetylene tank packed with additional explosives. (8) on or about 20 September 2005, AIF command detonated an IED while escorting Marine EOD along Main Supply Route Michigan at the 570 Eastings. The applicant and another Soldier were within 50 meters of the detonation. The device, two 155 millimeter artillery rounds, was buried and the majority of the blast was focused upward. The applicant and another Soldier were struck with debris in the legs, resulting in bruising and abrasions to the legs. Another Soldier engaged a possible triggerman with two 50 rounds bursts of coaxial machinegun fire directly over the heads of the applicant and other Soldier. Both the applicant and other Soldier complained of ringing ears and headache. (9) On or about 4 October 2005, the EOD detachment was dispatched along Main Supply Route Michigan to the 628 Eastings for a possible IED. The applicant and three other Soldiers dismounted to provide security for EOD Marines. While conducting disarming procedures of the IED, the dismounted element came under hostile fire. An enemy ambush was initiated by a rocket-propelled grenade followed by small arms fire from north and south of Main Supply Route Michigan. The dismounted Soldiers and Marines returned fire, engaging approximately 12 to 20 insurgents. The crew reported they had a complete weapons system failure, forcing the dismounted Soldiers to maintain an exposed position to prevent AIF from overrunning their position. After several minutes, the Bradley engaged AIF with 25 millimeter cannon fire over the heads of the dismounted Soldiers and Marines. (10) Throughout their tour at Camp Habbaniyah, the applicant and another Soldier conducted every security mission for EOD as well as providing support for other missions as designated by the commander disregarding their personal pain for the good of the mission. After their denied support by the battalion medical staff, the Soldiers were forced to self-treat and monitor their extensive injuries. b. his DA Form 2173, dated 22 October 2013, that shows in: (1) item 5 (Accident Information) – his injury occurred on 10 September 2005 in Ramadi, Iraq. (2) item 10 (Nature and Extent) – his injury was listed as sprain lumbar region; back disorder not otherwise specified. (3) item 11 (Medical Opinion) – he was not under the influence; he was mentally sound; his injury was in the line of duty, and he was on active duty orders in support of Operation Iraqi Freedom. (4) item 15 (Details of Accident or History of Diseases) – the applicant's injury was not the result of one specific incident, but rather from cumulative combat experience. The applicant was in close proximity to multiple IED explosions over the course of the deployment. (5) item 30 (Details of Accident – Remarks) – AIF command detonated an IED on the Marine EOD detachment and the security element on Main Supply Route Michigan at the 635 Eastings. The applicant was thrown over the EOD MIII4 and temporarily unconscious. (6) item 31 (Formal Line of Duty Investigation Required) – "No." (7) item 32 (Injury Considered to have been Incurred in the Line of Duty) – "Yes." c. his VA Rating Decision, dated 23 February 2014, that shows, in part, he received a 30 percent service-connected disability rating for shrapnel scars, left and right cheeks, right parietal scalp, right axillary area, symptomatic, moderately disfiguring. His total combined VA disability rating was listed as 90 percent. 9. U.S. Army Physical Disability Agency, Orders D 075-66. dated, 16 March 2015, shows he was released from assignment and duty because of physical disability permitting permanent disability retirement. He was placed on the Retired List effective 21 April 2015 with a 70 percent disability rating. His disability was based on injury or disease received in the line of duty as a direct result of Armed Conflict or caused by an instrumentality of war and incurred in the line of duty during a war period as defined by law. His disability resulted from a combat-related injury defined in Title 26, USC, section 104. 10. His National Guard Bureau Form 22 (Report of Separation and Record of Service) shows he was placed on the Retired List on 20 April 2015 due to a permanent disability. 11. He provided a DA Form 2823, dated 20 November 2015, from Staff Sergeant R_____ J. H_____, II (U.S. Army Retired), who stated, in part: a. On or about 10 September 2005, his team was providing security for an EOD element on Main Supply Route Michigan. As the EOD robot moved toward the suspected IED, the device was command detonated by an AIF triggerman. What was subsequently determined to be a double stack of 155 millimeter artillery rounds detonated within 60 meters of their position. Their proximity to the device was determined to be necessary by the EOD Marines in an attempt to keep insurgents from overpowering their electronic counter measures. b. He was struck in the face, chest, and arms with debris torn from the Humvee (high mobility multipurpose wheeled vehicle) by the explosion. After the attack, the applicant was located unconscious on the opposite side of the EOD Humvee from where he was initially posted. The applicant had been thrown over the hood of the Humvee and landed on his head and back as a result of the detonated IED that had been placed and used by enemy forces. c. He administered buddy aid and quickly revived the applicant who, despite his best efforts, remained disoriented for the remainder of the mission. The applicant's face was covered in numerous bleeding lacerations, second degree burns; he had several deposits of debris embedded in his face. The applicant was bleeding from his nose, which was now a common occurrence considering the number of blasts they experienced. He irrigated the applicant's wounds and continued his assessment, not finding any further external injuries, the applicant was quick to take up a position and defend against possible enemy ambush. They returned to their billeting areas where he further cleaned and dressed the applicant's facial injuries and monitored his concussion symptoms as instructed by the platoon leader and platoon sergeant. 12. The applicant's records are void of any evidence a recommendation for award of the Purple Heart or orders awarding him the Purple Heart. BOARD DISCUSSION: The Board carefully considered the applicant’s request for award of the Purple Heart. The Board acknowledges and is grateful for the applicant’s wartime service in Iraq from 15 June 2005 to 16 June 2006. Regrettably, the Board determined that the available documentation and supporting statements do not support award of the Purple Heart. Per regulation, to qualify for award of the Purple Heart the wound must have been received as a result of direct combat with the enemy and was of such severity that it required treatment, not merely examination, by a medical officer. The Board found insufficient evidence that the applicant received a wound while in direct combat with the enemy or that he was treated by a medical officer. The record indicates that the IEDs were all command detonated and the record is void of contemporaneous medical documentation that the applicant’s wounds were of such severity as to require treatment by a medical officer. Therefore, the applicant did not meet the regulatory requirements for award of the Purple Heart.? 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) Army Regulation 600-8-22 prescribes Army policy, criteria, and administrative instructions concerning individual and unit military awards. a. The Purple Heart is awarded in the name of the President of the United States 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: (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 Title10, 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. (a) 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) A foreign terrorist organization is defined as an entity designated as a foreign terrorist organization by the Secretary of State pursuant to section 219 of the Immigration and Nationality Act (Title 8, USC, section 1189). 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. (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 – MOS 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. Examples of enemy-related injuries which clearly justify award of 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. d. Examples of injuries or wounds which clearly do not justify award of 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). e. Purple Heart approval authorities are as follows, in part: (1) During wartime the senior Army commander in the combat theater may award the Purple Heart as approval authority when delegated by the Secretary of the Army or the Assistant Secretary of the Army (Manpower and Reserve Affairs). The Secretary of the Army or the Assistant Secretary of the Army (Manpower and Reserve Affairs) may authorize further delegation of approval or disapproval authority. (2) Approval authority for the Purple Heart for Army personnel wounded or killed as the result of an international terrorist attack or as the result of an attack by a foreign terrorist organization is the Secretary of the Army. //NOTHING FOLLOWS// ABCMR Record of Proceedings (cont) AR20190012798 7 1