BOARD DATE: 30 April 2020 DOCKET NUMBER: AR20190015384 APPLICANT REQUESTS: Award of the Purple Heart. APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: * DD Form 149 (Application for Correction of Military Record) * DA Form 2173 (Statement of Medical Examination and Duty Status), dated 9 March 2009 * DA Form 2823 (Sworn Statement), dated 9 March 2009 * Standard Form (SF) 600 (Medical Record - Chronological Record of Medical Care), dated 9 March 2009 * SF 600, dated 14 March 2009 * DA Form 4187 (Personnel Action), dated 25 July 2009 * DD Form 214 (Certificate of Release or Discharge from Active Duty) for the period 28 August 2008 to 6 September 2009 * Memorandum, dated 8 September 2009, subject: Final Determination of Line of Duty (LOD) Investigation * DA Form 4187-1-R (Personnel Action Form Addendum), dated 9 September 2009 * Department of Veterans Affairs (VA) service-connected disabilities statement, dated 21 June 2017 * VA Problem Lists * third-party email, dated 8 December 2017 * letter from the U.S. Army Human Resources Command (HRC) Awards and Decorations Branch to the applicant's Senate Representative, dated 15 August 2019 * Military Personnel (MILPER) Message Number 11-125, Titled: Army Directive 2011-07 (Awarding the Purple Heart), issued 29 April 2011 FACTS: 1. The applicant did not file within the three-year time frame provided in Title 10, U.S. 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 he is providing a DA Form 2173, which shows in block 30 (Details of Accident–Remarks), the necessary evidence to support his eligibility for the Purple Heart. 3. The applicant enlisted in the Army National Guard (ARNG) on 13 September 2005. He entered active duty in support of Operation Enduring Freedom on 28 August 2008. 4. A DA Form 2173 shows that on 9 March 2009, the applicant was the gunner in a military vehicle when the vehicle struck an improvised explosive device (IED). The blast caused multiple non-suturable abrasions to his arms and face. 5. On 9 March 2009, the applicant provided a sworn statement describing the details of the IED attack. He stated that an IED went off and all of sudden he was surrounded by smoke. He dropped down out of the turret then he blacked out. He then found himself out of the vehicle along with the other Soldiers. Upon returning to the forward operating base (FOB), he noticed he had some abrasions on his arms and a bruise on his chin. 6. An SF 600 shows that on 9 March 2009, the applicant was examined for a chief complaint of headache and bilateral elbow pain due to an IED blast. The SF 600 contains the entry "0 loss of consc [consciousness]." 7. On 25 July 2009, the applicant's immediate commander submitted a DA Form 4187 recommending approval of award of the Purple Heart for the applicant based on the IED attack on 9 March 2009. 8. The applicant was released from active duty on 6 September 2009. 9. A DA Form 4187-1-R shows the applicant's intermediate commander recommended disapproval of the recommendation for the Purple Heart to the applicant because he was not diagnosed with a concussion. The brigade commander also recommended disapproval and on 9 September 2009, the commanding general disapproved the recommendation for the Purple Heart for the applicant. 10. The applicant was discharged from the ARNG and reassigned to the U.S. Army Reserve Control Group (Annual Training) on 12 September 2011. 11. VA service-connected disabilities statement, dated 21 June 2017, shows the applicant was granted service-connected disability compensation for, among other conditions, traumatic brain injury (TBI). 12. A VA Problem Lists show the applicant was diagnosed by the VA on 22 June 2014 with concussion with loss of consciousness of unspecified duration. 13. On 8 December 2017, a member of the applicant's unit at the time of the IED attack provided an email stating the following: On 9 March 2009, I was the Motor Sergeant and Recovery Operator for the 333rd Military Police Company located in the Paktika Province of Afghanistan. That day l received a mission to recover an up-armored HMMWV that went down due to an IED attack. When I arrived at the location of the attack, the occupants of the vehicle where already evacuated from the area. The sergeant in charge of securing the area informed me that [the applicant] was one of the occupants of the vehicle during the attack. He was the gunner in the turret when the IED exploded. After waiting for EOD to clear the truck of any unexploded ordinance, l recovered the HMMWV·and returned to the FOB. Upon returning, I went to see [the applicant], who was a good friend of mine. [The applicant] was still shaken up from the blast. His right arm was scraped up, his left arm had some deep cuts, and his lip was spilt open. Due to his injuries he was not allowed to go on missions for a couple of weeks. During that time he spent most of his time in the motor pool with me helping out with vehicle maintenance. While helping out my section, there were a couple days that he had headaches and was sore, so I sent him to his bunk to rest. 14. On 15 August 2019, the HRC Awards and Decorations Branch responded to the applicant's Senate Representative regarding an inquiry concerning the applicant's efforts to pursue the Purple Heart. HRC stated the following: We remain unable to authorize an award of the Purple Heart for issuance. We reviewed [the applicant's] Standard Form 600 (Chronological Record of Medical Care) dated 9 March 2009, which reflect his medical examination following exposure to an improvised explosive device (IED) blast three days prior. However, there is no formal diagnosis of or treatment for a qualifying injury, per Army Regulation 600-8-22 (Military Awards), Paragraph 2-8 (Purple Heart). Accordingly, abrasions or lacerations (unless of a severity requiring treatment by a medical officer) and mild traumatic brain injury 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 do not justify award. Furthermore, we cannot utilize rating decisions by the Department of Veterans Affairs to determine award entitlement. BOARD DISCUSSION: 1. After reviewing the application and all supporting documents, the Board found that relief was not warranted. 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. 2. In events involving TBI and other similar injuries, the applicant’s record must show that the brain injury 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. The Board found insufficient medical evidence to meet the regulatory standard for the Purple Heart and thus recommended denying the request. 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, U.S. Code, 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 states 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. 3. MILPER Message Number 11-125, issued by HRC, dated 29 April 2011, stated the Secretary of the Army had approved Army Directive 2011-07 (Awarding the Purple Heart). The directive provides clarifying guidance to ensure the uniform application of advancements in medical knowledge and treatment protocols when considering recommendations for award of the Purple Heart for concussions (including mild traumatic brain and concussive injuries that do not result in a loss of consciousness). This message does not change the standards for award of the Purple Heart for concussion injuries. This policy is retroactive to 11 September 2001. The MILPER message was set to expired upon publication of the revision of Army Regulation 600-8-22. 4. Army Regulation 600-8-22, dated 25 June 2015, superseded Army Directive 2011-07. a. Paragraph 2-8e states 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. However, the wound for which the award is made must have required treatment, not merely examination, by a medical officer. Additionally, treatment of the wound will be documented in the Servicemember’s medical and/or health record. Award of the Purple Heart may be made for wounds treated by a medical professional other than a medical officer provided a medical officer includes a statement in the Servicemember’s medical record that the extent of the wounds was such that they would have required treatment by a medical officer if one had been available to treat them. b. Paragraph 2-8g states examples of enemy-related injuries which clearly justify award of the Purple Heart include concussion injuries caused as a result of enemy- generated explosions and 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. c. Paragraph 2-8h states examples of injuries or wounds which clearly do not justify award of the Purple Heart include 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), and bruises (unless caused by direct impact of the enemy weapon and severe enough to require treatment by a medical officer). //NOTHING FOLLOWS// ABCMR Record of Proceedings (cont) AR20190015384 6 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1