ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS IN THE CASE OF: BOARD DATE: 22 February 2021 DOCKET NUMBER: AR20200009006 APPLICANT REQUESTS: * award of the Purple Heart * correction of his digital Standard Form 600 (Medical Records) to reflect his mild traumatic brain injury (mTBI) diagnosis APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: * DD Form 149 (Application for Correction of Military Record), 22 April 2020 * Self-authored letter, 22 April 2020 * Headquarters, 101st Airborne Division, Orders Number 320-318, 16 November 2009 * Casualty Status Report, 27 September 2010 * several Department of Veteran Affairs (VA) correspondence * Enlisted Record Brief * DD Form 214 (Certificate of Release or Discharge from Active Duty) * two DA Form 2823 (Sworn Statement) * U.S. Army Human Resources Command letter, 12 September 2014 * Army Review Boards Agency, 21 November 2014 * Army Board for Correction of Military Records, 7 July 2015 * Radiology Reports, 9 May 2019 FACTS: 1. The applicant did not file within the three year time frame provided in Title 10, U.S. 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 25 September 2010, he was directly exposed to an improvised explosive device (IED) blast (see report IED-AND-385405-10 and the corresponding casualty report). The unit Medical Officer performed the military acute concussion evaluation (MACE) exam and diagnosed him with a mild traumatic brain injury (mTBI) on the casualty report case NR436280. b. On 30 October 2010, his digital Standard Form 600 (Medical Records) was transcribed by enlisted personnel, the report failed to reflect his MACE results and his mTBI diagnosis. c. His initial packet was submitted to Army Human Resources Command (HRC) with statements from his Chain of Command and documentation from medical personnel; which diagnosed him with mTBI and other injuries sustained from the traumatic events. At that time, he did not have access to his casualty status report. On 12 September 2014, HRC denied his request. d. After receiving the casualty status report, he resubmitted his packet to the ABCMR requesting a Board hearing. On 7 July 2015, he received a letter from ABMCR which shows, “he appears to have all the necessary documents,” however, HRC should handle the correction. He forwarded the packet to HRC and was instructed through electronic mail to send the packet to the ABCMR for a determination. e. Poor sharing of information between his units has allowed him to fall through the cracks. The fact that he is bounced back and forth is no way to treat combat veterans, please do not let this be the case between HRC and the ABCMR. f. There is one other secret classified document which he does not have access to, it is, IED AND 385405-10, and it is the official report of the IED blast. 3. On 17 May 2006, the applicant enlisted in the Regular Army. He held military occupational specialty (MOS) 94A (Land Combat Electronic Missile System). 4. His Enlisted Record Brief shows in section 1 (Assignment Information) – service in Iraq from 24 September 2007 to 13 November 2008, and service in Afghanistan from 12 February 2010 to 7 February 2011. In section VIII (Awards and Decorations) – * Army Commendation Medal * Army Achievement Medal * Valorous Unit Award * Army Good Conduct Medal * National Defense Service Medal * Afghanistan Campaign Medal with one bronze service star * Iraq Campaign Medal with one bronze service star * Global War on Terrorism Service Medal * Non-commissioned Officer Professional Development Ribbon * Army Service Ribbon * Overseas Service Ribbon * NATO Medal * Combat Action Badge * Drivers Mechanic Badge – Mechanic 5. The applicant provided: a. Casualty status report, which shows, in part, on 27 September 2010, the applicant was in Afghanistan, on a convoy when his vehicle was struck by an IED. He was mounted at the time of the explosion, he was MACE tested and reported with a mild TBI. b. VA letter, from his treating physician, 13 December 2013, that shows, in part, that during the applicant’s deployment he sustained head trauma. He shows signs of a TBI with post concussive syndrome. c. VA letter, from a physician in Neuro Surgery, 30 May 2014, that shows, in part, that the applicant had lumbar spine surgery in January 2014. The physician states the applicant’s surgery is due to an acute event that led to increased pressure/loading on the lower back; rather than degenerative changes. 6. On 1 April 2012, he was honorably released from active duty. His DD Form 214 shows he completed 5 years, 10 months and 15 days of net service and in: a. Block 13 (Decorations, Medals, Badges, Commendations, Citations, and Campaign Ribbons Awarded or Authorized) – * Afghanistan Campaign Medal with one campaign star * Army Commendation Medal (3rd Award) * Army Achievement Medal (4th Award) * Valorous Unit Award * Army Good Conduct Medal * National Defense Service Medal * Global War on Terrorism Service Medal * Iraq Campaign Medal with Campaign Star * Non-Commissioned Officer Professional Development Ribbon * Army Service Ribbon * Overseas Service Ribbon (2nd Award) * NATO Medal * Combat Action Badge * Driver and Mechanic Badge with Driver-Wheeled Vehicle(s) Clasp * Driver and Mechanic Badge with Mechanic Clasp b. Block 18 (Remarks) – service in Iraq 24 August 2007 to 13 November 2008, and service in Afghanistan from 12 February 2010 to 7 February 2011. 7. The applicant provided: a. DA Form 2823 (Sworn Statement), 15 April 2014, from M____, which shows, in part, on 25 September 2010 he was in the tactical operations center when he heard a loud explosion not far from the forward operating base (FOB). He was informed through the radio reports that their lead vehicle, struck a large IED. The vehicle was being recovered by a wrecker and all personnel that were involved in the blast, would be cross loaded into the medic truck and brought to the FOB for evaluation. Specialist (SPC) Y____ were the one of the Soldiers involved and he was later evaluated by the Battalion Physician Assistant. b. DA Form 2823, 18 April 2014, from W__, on 25 September 2010, which shows, in part, that he was in the convoy when SPC Y__ vehicle was struck by an IED. He was Tank Commander in a trail vehicle, and he performed recovery of SPC Y__ vehicle following the blast. SPC Y__ was in a dismount seat in the rear of the vehicle. The blast was significant enough to blow the 400lb mine roller attached to the front over the top of the vehicle. During the initial medical assessment everyone in the truck was diagnosed with TBI except for SPC Y__ (applicant). Based on this initial assessment, they were all awarded the Purple Heart, except for SPC Y__. Prior to this incident SPC Y__ (applicant) did not display physical limitations. His concussion from the blast is the reasonable explanation for his TBI and his spinal injuries. 8. On 12 September 2014, by letter, HRC informed the applicant that after careful consideration, his request for award of the Purple Heart for injuries received while deployed in support of Operation Enduring Freedom is disapproved. Award of the Purple Heart is limited to members of the Armed Forces of the United States who have been wounded or killed as a direct result of enemy action. According to the military medical documentation that he provided, the medical officer statements do not give diagnosis and treatment for concussion/mild TBI. While this was an unfortunate event, a request for award of the Purple Heart has several regulatory requirements not met by the documentation provided. 9. The applicant provided: * Radiology report, 9 May 2019, which shows, in part, he has a history of lower back pain, and mild to moderate degenerative disc disease at multiple levels; the disc is almost nonexistent. * VA rating decision letter, 8 April 2020, which shows, in part, that the applicant received a rating of 70 percent for PTSD and TBI. * VA letter, 22 April 2020, which shows, in part, that the applicant received a rating of 100 percent. 11. To be awarded the Purple Heart, the regulatory guidance 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: 1. Board members noted that the applicant provided or his records contain a Casualty status report, which shows, in part, on 27 September 2010, he was in Afghanistan, on a convoy when his vehicle was struck by an IED. He was diagnosed him with mTBI and other injuries sustained from the traumatic events. One sworn statement indicated that he was the one of the Soldiers involved in the IED attack and he was later evaluated by the Battalion Physician Assistant. Another sworn statement indicated during the initial medical assessment everyone in the truck was diagnosed with TBI except for the applicant. Based on this initial assessment, they were all awarded the Purple Heart, again except for the applicant. Because prior this incident he did not display physical limitations, Board members believed his concussion from the blast is a reasonable explanation for his TBI (and possibly other injuries). Notwithstanding the disapproval letter from HRC, the Board found sufficient evidence to support awarding him the Purple Heart. 2. The Board does not support changing his digital Standard Form 600 (Medical Records) to reflect his mild traumatic brain injury (mTBI) diagnosis. Medical documents are created by the medical provider at the time of consultation, visitation, or treatment, and reflect the facts and conditions at the time those medical forms are created. BOARD VOTE: Mbr 1 Mbr 2 Mbr 3 : : : GRANT FULL RELIEF XX: XX: XX: GRANT PARTIAL RELIEF : : : GRANT FORMAL HEARING : : : DENY APPLICATION BOARD DETERMINATION/RECOMMENDATION: 1. The Board determined the evidence presented is sufficient to warrant a recommendation for partial relief. As a result, the Board recommends that all Department of the Army records of the individual concerned be corrected by awarding him the Purple Heart for wounds received in action in Afghanistan on 25 September 2010. 2. The Board further determined the evidence presented is insufficient to warrant a portion of the requested relief. As a result, the Board recommends denial of so much of the application that pertains to correction of his digital Standard Form 600 (Medical Records) to reflect his mild traumatic brain injury (mTBI) diagnosis 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) 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 7 December 1941, pursuant to Title 10, United States Code, 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. (7) On or after 7 December 1941, to a member who is killed or dies while in captivity as a Prisoner of War under circumstances establishing eligibility for the Prisoner of War Medal, unless compelling evidence is presented that shows the member’s death was not the result of enemy action. b. A physical lesion is not required. (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 – military occupational specialty 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, United States Code, 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-placed trap or mine. (3) Injury caused by enemy-released chemical, biological, or nuclear agent. (4) Injury caused by vehicle or aircraft accident resulting from enemy fire. (5) Concussion injuries caused as a result of enemy-generated explosions. (6) Mild traumatic 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. 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) Chemical, biological, or nuclear agents not released by the enemy. (6) Battle fatigue. (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) Post traumatic stress disorders. (11) Airborne (for example, parachute/jump) injuries not caused by enemy action. (12) Hearing loss and tinnitus (for example: ringing in the ears). (13) Mild traumatic brain injury 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. (14) Abrasions and lacerations (unless of a severity to be incapacitating). (15) Bruises (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). (17) First degree burns. //NOTHING FOLLOWS// ABCMR Record of Proceedings (cont) AR20200009006