IN THE CASE OF: BOARD DATE: 10 February 2021 DOCKET NUMBER: AR20190014533 APPLICANT REQUESTS: entitlement to the Purple Heart (PH). APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: * 2 DD Forms 149 (Application for Correction of Military Record) * a self-authored statement * Permanent issued by U.S. Army Human Resources Command (AHRC), dated 15 May 2014 * Permanent, issued by Army Review Boards Agency (ARBA), dated 12 February 2019 * 2 DA Forms 4980-10-WT (PH certificates) * Letter, Social Work Case Manager, dated 14 March 2014 * Letter, Case Management Division, ARBA, dated 15 January 2014 * Letter, AHRC Awards and Decorations Branch, dated 24 April 2014 * Letter, AHRC, Soldier Programs and Services Division, dated 14 November 2014 * Letter, AHRC, Soldier Programs and Services Division, dated 25 February 2016 * DD Form 214 (Certificate or Release or Discharge from Active Duty) * Memorandum, Command Surgeon, dated 19 July 2010 * Orders, issued by 91st Regional Support Command, dated 24 May 2012 * 2 Visual Aids * DA Form 2823 (Sworn Statement), applicant, dated 10 September 2013 * Neurological Evaluation, dated 16 September 2013 * DA Form 2823, Major (MAJ) R-------, dated 22 October 2013 * DA Form 2173 (Statement of Medical Examination and Duty Status), dated 22 October 2013 * DA Form 1156 (Casualty Feeder Card), dated 1 November 2013 * Neurological Evaluation, dated 1 November 2013 * Letter of Support, MAJ R-------, dated 8 December 2013 * Neurological Evaluation, dated 24 January 2014 * University Diagnostic Institute, Magnetic Resonance, dated 7 March 2014 * Neurological Evaluation, dated 7 April 2014 * 8 pages, Disability Benefits Questionnaire, dated 11 April 2014 * 6 pages, Progress Notes, 11 April 2014 * Department of Veterans Affairs (VA) Rating Decision, dated 9 June 2014 * Memorandum dated 12 October 2013, Statement dated 14 July 2014, from the former Commander and General Surgeon, Lieutenant Colonel (LTC) M------- * Memorandum dated 22 October 2014, from MAJ D---- * Progress Notes, dated 27 August 2019 * Military Personnel Message Number 11-125, issued 29 April 2011 FACTS: 1. The applicant did not file within the three-year time frame provided in Title 10, United States Code, 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, in effect: a. He received a traumatic brain injury (TBI) when the convoy he was in was struck by an improvised explosive device (IED), later determined to be a 152mm artillery round secured to the backside of a highway off-ramp guard rail. LTC R------- and Master Sergeant D------- were passengers riding in the same vehicle and both received the PH for the same incident and injuries. b. His medical records were misplaced during the many movements his unit performed in theater. Memorandums in lieu of the documents were created by the doctors that treated him after the incident and later the missing documents were located and added to his request. However, the DA Form 1156 and DA Form 2173 were recreated by the medical doctor from the time of the incident. c. He feels disapproval of his initial request was unjust given the diagnosis of a TBI as the result of the attack. He feels AHRC only read the first part of the TBI evaluation, which was highlighted in pink for post-traumatic stress disorder (PTSD) and assumed the packet was solely addressing PTSD and not TBI. 3. The applicant enlisted in the Regular Army on 27 April 2001. He was deployed in support of Operation Iraqi Freedom (OIF) with duty in Iraq from 26 April 2003 to 8 July 2004. He was honorably released from active duty on 26 April 2005. The DD Form 214 he received does not list the PH. On 23 June 2012, the applicant was honorably discharged from the U.S. Army Reserve for medical unfitness, due to no fault of the Soldier. 4. The applicant provides: a. Orders and certificate awarding the PH to two Soldiers, presumably in the same incident on 12 January 2004, as the applicant. b. A letter to the Chief, Awards and Decorations Branch, AHRC in regard to their disapproval of his request for the PH. The applicant states at a VA hearing, he presented evidence in the form of a magnetic resonance image (MRI), which indicated that he received a mild TBI on 12 January 2004. c. A memorandum dated 19 July 2010, from the Command Surgeon, Headquarters, 81st Regional Support Command who reviewed the medical records of the applicant, which indicated the applicant did not meet the medical retention requirements of Army Regulation 40-501 (Standards of Medical Fitness), chapter 3, paragraphs 3-30h narcolepsy), 3-41c (sleep apnea), and 30j (migraine headaches). The process for separating the applicant from service was to begin in accordance with Army Regulation 635-40 (Disability Evaluation for Retention, Retirement or Separation). d. A sworn statement dated 9 September 2013, where the applicant states, in effect, on 12 January 2004, he was driving his Humvee behind a 5-ton going up a ramp and all he remembers is a flash and loud blast. He is unsure how long he was unconscious, he was dazed, his ears were ringing in his head and time was moving slow. Eventually he and the other members in his vehicle were sent to get checked out. He remembers getting additional checkups and seeing mental health people and being told their hearing and head issues would subside. He was diagnosed a few years ago with PTSD and underwent a Physical Evaluation Board for narcolepsy, and sleep apnea. He has body and head shakes/twitches, migraines, and vision issues as well that he claims are from the IED blast, as he was just so close to the bomb. He was actually the closest of anyone on the scene. According to the doctors he has seen in recent years, there was no real proof of not having pre-existing issues due to this incident not being properly documented. e. A Complete Comprehensive Neurological Evaluation dated 16 September 2013, in which the applicant self-referred for what he described as "practically total body shaking for a long time and basically since he came back from the War in Iraq in 2004." Overall the neurological examination, per se, was essentially unrevealing but he seemed to have significant cognitive and memory problems. Clinical Impression; (1) Involuntary movement disorder and basically so-called restless body syndrome with involvement of the legs, arms and head, with multifocal myoclonic activity or jerking activity. (2) Memory loss with cognitive impairment, mild to moderate, due to or associated with previous exposure to an IED in Iraq in 2004. (3) Depressive disorder with anxiety and PTSD. (4) Sleep disorder and mainly sleep apnea with a question of narcolepsy, although this has not been proved 100%. (5) Chronic low back pain syndrome, mild to moderate. f. A sworn statement dated 22 October 2013, from MAJ R-------, who states, in effect, due to a highly important no notice mission on 12 January 2004, he scrounged together a crew and borrowed the applicant to drive during the mission. On the way back with the briefing products, their vehicle fell in closely behind a 5-ton when a huge explosion to their immediate left about 10 feet and 10 o'clock from the driver erupted. He was ejected from the vehicle, SPC D------- was ejected out of the turret hatch down the slant shell and the applicant was in the driver's seat hunched to the right leaning on the radio mount. He can confirm that all were deafened, stunned, shocked, bruised, and concussed. After returning a Soldier's lifeless body over to the Forward Surgical Team (FST), they assessed them and determined they had no life threatening injuries and did not need to be evacuated. The doctor determined that their headaches would subside and their hearing would gradually return. g. DA Form 2173 dated 22 October 2013, in which it is noted while conducting mounted operations in the line of duty, the applicant was engaged with an IED on 12 January 2004, resulting in a TBI, concussion, hearing loss, scrapes and bruises to his back and shoulders, and whiplash symptoms. h. DA Form 1156, dated 1 November 2013, reference the applicant for the incident on 12 January 2004. At approximately 0945 while conducting mounted operations, patrol was engaged with close proximity to an lED just south of Sadr City on Canal Road with applicant and crew members ejected from vehicle. The applicant and vehicle crew were evaluated and treated by the FST team for whiplash symptoms, scrapes, bruising, hearing loss, and headaches. k. Neurological Evaluation dated 1 November 2013, which notes the applicant seems to suffer from memory loss with cognitive impairment due to or associated with previous exposure to an IED blast in Iraq in 2004, together with PTSD caused by the same incident. Clinical Impression: (1) Memory disorder with cognitive impairment due to or associated with a post- concussion syndrome caused by previous exposure to an IED blast in Iraq in 2004. (2) Persistent involuntary movement disorder with multifocal myoclonic activity or jerking activity, overall consistent with so-called restless body syndrome, affecting the upper and lower extremities and the head, usually as he becomes more relaxed. (3) Sleep disorder with idiopathic hypersomnolence or a narcoleptic type of syndrome. (4) Depressive disorder with generalized anxiety and PTSD with flashbacks. (5) Chronic vascular headache syndrome with a tension component, somewhat intractable. j. A letter of support dated 8 December 2013, encouraging award the PH to MAJ R-------, SPC D------- and the applicant from the former S3, Regimental Support Squadron, 2nd Armored Cavalry Regiment (2ACR), during the incident. He states, in effect, after he was able to gain a detailed understanding of the incident he learned the Soldiers had been returned to duty. However, knowing now what we did not know then about mild TBI, he is confident that the extent of the injuries R-------, D------- and the applicant sustained meet that level. Unfortunately, our response to dealing with Soldiers exposed to IEDs at this early stage in the Iraq conflict was inadequate. His experience on subsequent deployments in similar situation has been dealt with entirely different and Soldiers were treated with updated medical protocols. These Soldiers were, in fact, inadequately treated for their injuries. k. Neurological Evaluation dated 24 January 2014, since last seen, the applicant remains basically the same, cognitively speaking and memory-wise, and he remains with short term memory loss and also cognitive impairment, with impairment of concentration and selective attention, as well as focusing on detail. Clinical Impression: Persistent post-concussion syndrome with memory loss, cognitive impairment and impairment of concentration and selective attention, definitely due to or associated with the exposure to the IED blast in 2004. (1) Restless body syndrome with multifocal myoclonic activity or jerking activity, including restless leg syndrome, as well, somewhat improved by the intake of half a tablet of 0.5 mg of Clonazepam at bed time, although he should take the full tablet as recommended. (2) Idiopathic hypersomnolence type of syndrome or sleep disorder, not responding too well to the intake of Modafinil or Provigil. (3) Persistent posttraumatic stress disorder with frequent flashbacks. (4) Depressive illness or depressive disorder, with also generalized anxiety disorder and severe apathy, with marked psychomotor retardation. (5) Post-traumatic headache syndrome with both muscle contraction headaches or cervicogenic headaches, and posttraumatic vascular headaches or migraine headaches over the right side of the head and over the frontal region bilaterally, considered as intractable because he still has about six to eight of them per month. l. Impression of magnetic resonance brain with and without contrast dated 7 March 2014, structural examination of the brain utilizing TBI protocol appears to be within normal limits. m. Neurological Evaluation dated 7 April 2014, Clinical Impression: (1) Post-concussion syndrome or posttraumatic syndrome with persistent memory loss, cognitive impairment and persistent difficulties with concentration and selective attention, obviously due to or associated with the exposure to the IED blast in 2004 while in Iraq, with now, definite objective evidence as seen on the recent MRI scan of the brain. (2) Persistent idiopathic hypersomnolence type of sleep disorder, now responding better to the Modafinil or Provigil at 300 mg once a day. (3) Persistent multifocal myoclonic activity, overall consistent with a "total restless body syndrome" on no medication for that. (4) Posttraumatic headaches, both muscle contraction or cervicogenic headaches and posttraumatic vascular headaches, common migraine variety, over the frontal region, bilaterally, still considered as intractable because of the frequency and severity of the same, requiring the ongoing intake of antimigraine medication. (5) PTSD with persistent flashbacks and depressive illness with also apathy and generalized anxiety disorder. n. Initial Evaluation of Residuals of TBI Disability Benefits Questionnaire dated 11 April 2014, medical opinion summary for direct service connection states, in effect, that since the applicant had no significant head injuries prior to or following his concussion sustained on 12 January 2004, associated with an IED explosion, although he did not manifest evident symptoms of TBI on active duty, it may be reasonably concluded that it is at least as likely as not that the applicant’s chronic TBI with headaches has been caused by his exposure to a significant IED explosive blast wave during his OIF deployment. o. Review PTSD Disability Benefits Questionnaire, dated 11 April 2014, notes current diagnoses of chronic PTSD and an unspecified depressive disorder. p. VA Rating Decision dated 9 June 2014, provides for evaluation of PTSD and TBI with cognitive decline (also claimed as depression and memory disorder), increased to 100 percent effective 18 December 2013. Service connection for post-concussion migraine and tension headaches is granted with an evaluation of 30 percent effective 18 December 2013, and entitlement to special monthly compensation based on housebound criteria being met effective 18 December 2013. q. Letters from the former commander/general surgeon of the 2ACR FST, dated 12 October 2013 and 14 July 2014. The author cannot understand why the medical records generated at the FST could not be located but he attests the Soldiers were formally processed through the medical unit. The Soldiers, to include the applicant, were injured by primary and tertiary blast effect rather than shrapnel. They were able to return to duty within a short time, but that does not negate the fact that they did in fact receive a blast injury. r. Memorandum dated 22 October 2014, from the Deputy Surgeon, XVIII Airborne Corps, who believes the injuries to the Soldiers to include the applicant were underappreciated even though there were visible minor lacerations and contusions. The medics on duty stated the Soldiers presented minor wounds to include headaches, ringing ears and minor shrapnel wounds. He was unaware the Soldiers did not receive additional follow up care and that submission for the PH were not submitted. s. Numerous pages of Speech Pathology Medical Progress Notes beginning 27 August 2019, in which the applicant complains of difficulty with memory and attention. 5. On 14 November 2014, the Chief, Awards and Decorations Branch, AHRC, disapproved the applicant's request for award of the PH for injuries he received while deployed in support of OIF (erroneously referred to as Operation Enduring Freedom) and noted the diagnosis and treatment in the medical document provided by the applicant did not meet the criteria for award of the PH. 6. On 25 February 2016, the Chief, Soldier Programs and Services Division, AHRC, disapproved the applicant's reconsideration for award of the PH and noted the medical documentation indicated he received minor scrapes and bruises which did not require a medical doctor nor any treatment as outlined in Army Regulation 600-8-22 (Military Awards), paragraph 2-8e, 2-8h(14) and (15). 7. Army Regulation 600-8-22 (Military Awards) contains the regulatory guidance pertaining to entitlement to the PH and requires all elements of the award criteria to be met. There must be proof a wound was incurred as a result of enemy action, that the wound required treatment by medical personnel, and that the medical personnel made such treatment a matter of official record. Additionally, when based on a TBI, the regulation stipulates the TBI or concussion must have been severe enough to cause a loss of consciousness; or restriction from full duty due to persistent signs, symptoms, or clinical findings; or impaired brain functions for a period greater than 48 hours from the time of the concussive incident. BOARD DISCUSSION: After reviewing the application and all supporting documents, the Board found that relief was not warranted. The Board carefully considered the applicant’s request, supporting documents, evidence in the records and regulatory guidance. The Board considered the applicant’s statement, his record of service and documents provided by the applicant. Evidence in the record show the applicant, received minor scrapes and bruises which did not require a medical doctor nor any treatment as outlined in Army Regulation 600-8-22. The Board determined that no documentation or supporting statements indicated the applicant had 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 as specified in the criteria for award of the Purple Heart. The Board’s decision in no way minimizes the sacrifice, service and recognized achievements of the applicant, but the Board is unable to grant relief for award of the Purple Heart based on the evidence provided. Per the regulatory guidance on awarding the Purple Heart, the applicant must provide or have in his service records substantiating evidence to verify that he was injured, 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. 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. ADMINISTRATIVE NOTES: N/A 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 (Military Awards), prescribes policies and procedures for military awards and decorations, to include the PH. a. 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 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. When contemplating an award of this decoration, the key issue that commanders must take into consideration is the degree to which the enemy caused the injury. The fact that the proposed recipient was participating in direct or indirect combat operations is a necessary prerequisite, but is not the sole justification for the award. c. Examples of enemy-related injuries which clearly justify award of the PH include concussion injuries caused by enemy-generated explosions, and a TBI or concussion that is severe enough to cause: * loss of consciousness; or * restriction from full duty due to persistent signs, symptoms, or clinical findings; or * impaired brain functions for a period greater than 48 hours from the time of the concussive incident 3. Army Regulation 15-185 (ABCMR) prescribes the policies and procedures for correction of military records by the Secretary of the Army, acting through the ABCMR. The ABCMR considers individual applications that are properly brought before it. The ABCMR will decide cases on the evidence of record. It is not an investigative body. The ABCMR begins its consideration of each case with the presumption of administrative regularity. The applicant has the burden of proving an error or injustice by a preponderance of the evidence. //NOTHING FOLLOWS// ABCMR Record of Proceedings (cont) AR20190014533 2 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1