IN THE CASE OF: BOARD DATE: 10 February 2021 DOCKET NUMBER: AR20210005145 APPLICANT REQUESTS: reconsideration of his earlier request for award of the Purple Heart. He also requests a personal appearance before the Board (Telephonic Request) APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: * Two DD Forms 149 (Application for Correction of Military Record), 1 June 2017 and 6 January 2021 * DD Form 214 (Certificate of Release or Discharge from Active Duty), for the period ending 18 January 2007 * Memorandum for Record, subject: Late Submission of Purple Heart Nomination for Applicant, 1 November 2016 * DD Form 199 (Informal Physical Evaluation Board (PEB) Proceedings), 17 November 2017 * DA Form 5016 (Chronological Statement of Retirement Points), 29 November 2017 * Memorandum, subject: Permanent Physical Disability Retirement, 13 December 2017 * Orders D xxxxxx (Retired List), 13 December 2017 * Orders D xxxxxx (Amendment to Retired Grade), 8 February 2018 * Previous Record of Proceedings from the Army Board for Correction of Military Records (ABCMR), Docket Number AR2017000xxxx, 28 May 2xxx * Department of Veterans Affairs (VA) Rating Decision, 31 January 2020 * Combat-Related Special Compensation (CRSC) Reconsideration Request Form, 11 February 2020 * Two VA Letters, 11 February 2020 and 8 May 2020 * E-mail Correspondence with ABCMR, 26 February 2020 * CRSC Decision from the U.S. Army Human Resources Command (HRC), 19 March 2xxx FACTS: 1. Incorporated herein by reference are military records which were summarized in the previous consideration of the applicant's case by the ABCMR in Docket Number AR2017000xxxx on 9 May 2019. 2. The applicant states he was submitted for award of the Purple Heart and the documents were not reviewed properly. The first submission was denied at a Reserve brigade level and the commander did not approve the entitlement “just because he got a bad back, bloody nose and a headache does not mean he gets a Purple Heart.” At the time, the injury could not be fully assessed and diagnosed due to lack of medical equipment and command climate. The former battalion commander, Colonel (COL) (Retired) R__ R__ explains the reason the applicant was not medically evacuated to a higher medical command staff and was not submitted for the Purple Heart at that time. He sustained injuries during combat operations by an improvised explosive device (IED) blast while in Tikrit, Iraq on 31 January 2006. 3. The applicant provides: a. Memorandum for Record, subject: Late Submission of Purple Heart Nomination for Applicant, dated 1 November 2016 from COL (Retired) R__ R__, which states on 31 January 2006, he was the battalion commander for the applicant. On that day, while on patrol, the applicant’s vehicle was hit by an enemy IED near Tikrit, Iraq. The applicant was injured during the attack. He had a bloody nose, mild concussive symptoms, and lower back pain which were deemed not to meet the requirements for submission for a Purple Heart. He was treated by a medic and the physician assistant. He did not meet medical evaluation, but was prescribed light duty and rest. Given what he knows now, the traumatic brain injury (TBI) protocols and the significance of his back injury, he would have ordered the applicant’s evacuation and submitted him for the Purple Heart. b. Informal PEB Proceedings, dated 17 November 2017, in which the PEB found the disability disposition is based on disease or injury incurred in the line of duty in combat with an enemy of the U.S. and as a direct result of armed conflict or caused by an instrumentality of war and incurred in the line of duty during a period of war. The disability did result from a combat-related injury. He was rated at 100%. c. Chronological Statement of Retirement Points, dated 29 November 2017, which shows a summary of the applicant’s active duty retirement points. d. Memorandum, subject: Permanent Physical Disability Retirement, dated 13 December 2017, from the U.S. Army Physical Disability Agency, which advises the applicant of their findings and recommendations to be permanently retired with a disability rating of 100%. e. Orders D xxxxxx, dated 13 December 2xxxx, which show the applicant was placed on the permanent disability retired list on 17 January 2018 in the grade of E-6. f. Orders D xxxxxx, dated 8 February 2018, which show the previous order was amended to reflect the applicant being retired in the grade of E-7 vice E-6. g. VA Rating Decision, dated 31 January 2020, which shows the VA rated the applicant for service-connected disabilities. h. CRSC Reconsideration Request Form, dated 11 February 2020, which shows the applicant submitted a request for CRSC to HRC. i. Two VA Letters, dated 11 February 2020 and 8 May 2020, verifying the applicant’s service-connected disabilities. j. E-mail Correspondence with ABCMR, 26 February 2020, which details the applicant’s intent to submit a new application for review by the Board. k. CRSC Decision from HRC, dated 19 March 2020, which shows the applicant’s request for CRSC and approved his claim. 4. A review of the applicant’s service record shows: a. He enlisted in the Regular Army on 17 January 2002. He held military occupational specialty 13B (Cannon Crewmember). b. He served in Iraq from 27 February 2003 to 7 February 2004 and from 18 September 2005 to 11 September 2006. c. Permanent Order xxxxxx, dated 28 February 2006, awarded the applicant the Combat Action Badge for being engaged or engaging the enemy on 31 January 2006. d. He was honorably discharged from active duty on 18 January 2007. His DD Form 214 shows he completed 5 years and 2 days of active service. e. On 17 November 2017, an Informal PEB convened. The PEB determined he was physically unfit and recommended a combined rating of 100% and the applicant’s disposition be permanent disability retirement. f. The applicant was retired and placed on the permanent disability retired list on 17 January 2018. g. Memorandum from HRC, subject: Award of the Purple Heart to Applicant, dated 5 November 2009, from Chief, Military Awards Branch, which states the request for award of the Purple Heart for injuries received while deployed in support of Operation Iraqi Freedom is returned without action due to lack of chain of command endorsement and appropriate supporting documentation. h. On 9 May 2019, the Board considered his request for award of the Purple Heart and denied it. The Board indicated that after based upon the documentary evidence, specifically the HRC advisory finding the diagnosis and treatment in the medical document provided does not meet the criteria for award of the Purple Heart, the Board concluded there was no error or injustice which would warrant making a correct to the applicant’s record. For that reason, the Board recommended denying the applicant’s record for relief. 5. By regulation: a. 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 do not justify award of the Purple Heart. b. Applicants are not entitled to a hearing before the Board; however, the request for a hearing may be authorized by a panel of the Board or by the Director of the Army Board for Correction of Military Records. 6. By statute, the VA is permitted to award compensation for disabilities which were incurred in or aggravated by active military service. However, an award of a VA rating does not establish an error or injustice on the part of the Army. The Army rates only conditions determined to be physically unfitting at the time of discharge, which disqualify the Soldier from further military service. The Army disability rating is to compensate the individual for the loss of a military career. The VA does not have authority or responsibility for determining physical fitness for military service. The VA may compensate the individual for loss of civilian employability. BOARD DISCUSSION: After reviewing the application and all supporting documents, the Board found that relief was not warranted. The Board carefully considered the applicants request, supporting documents and evidence in the records. The Board considered the applicant’s statement, his military record, documents provided by the applicant, HRC correspondences and regulatory guidance. The Board agreed, based on the HRC correspondences for lack of supporting documentation and letters from his previous change of command, stating the applicant had a bloody nose, mild concussive symptoms, and lower back pain which were deemed not to meet the requirements for submission for a Purple Heart. 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. Therefore, the applicant did not meet the requirements for award of the Purple Heart. 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. The applicant’s request for a personal appearance hearing was carefully considered. In this case, the evidence of record was sufficient to render a fair and equitable decision. As a result, a personal appearance hearing is not necessary to serve the interest of equity and justice in this case. 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 Board found 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 to amend the decision of the ABCMR set forth in Docket Number AR2017000xxx on 9 May 2xxxx. 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. Army Regulation (AR) 600-8-22 (Military Awards) 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. a. Examples of enemy-related injuries which clearly justify the Purple Heart: * 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 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 b. Examples of injuries or wounds which clearly do not justify the Purple Heart: * Frostbite (excluding severe frostbite requiring hospitalization from 7 December 1941 to 22 August 1951) * Trench foot or immersion foot, heat stroke, battle fatigue, first degree burns, and food poisoning not caused by enemy agents * Chemical, biological, or nuclear agents not released by the enemy * 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 * Post-traumatic stress disorders * Airborne (for example, parachute/jump) injuries not caused by enemy action * Hearing loss and tinnitus (for example: ringing in the ears) * 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. * 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) c. The following nonexclusive list provides examples of signs, symptoms, or medical conditions documented by a medical officer or medical professional that meet the standard for award of the Purple Heart: * Diagnosis of concussion or mild traumatic brain injury * Any period of loss or a decreased level of consciousness * Any loss of memory for events immediately before or after the injury * Neurological deficits (weakness, loss of balance, change in vision, praxis (that is difficulty with coordinating movements), headaches, nausea, difficulty with understanding or expressing words, sensitivity to light, and so forth) that may or may not be transient. Intracranial lesion (positive computerized axial tomography or magnetic resonance imaging scan) d. The following nonexclusive list provides examples of medical treatment for concussion that do meet the standard of treatment for award of the Purple Heart: * Referral to neurologist or neuropsychologist to treat the injury * Rehabilitation (such as occupational therapy, physical therapy, and so forth) to treat the injury * Restriction from full duty for a period of greater than 48 hours due to persistent signs, symptoms, or physical finding of impaired brain function 2. Title 38, U.S. Code, Section 1110 (Wartime Disability Compensation – Basic Entitlement) provides for disability resulting from personal injury suffered or disease contracted in line of duty, or for aggravation of a preexisting injury suffered or disease contracted in line of duty, in the active military, naval, or air service, during a period of war, the U.S. will pay to any veteran thus disabled and who was discharged or released under conditions other than dishonorable from the period of service in which said injury or disease was incurred, or preexisting injury or disease was aggravated, compensation as provided in this subchapter, but no compensation shall be paid if the disability is a result of the veteran's own willful misconduct or abuse of alcohol or drugs. 3. Title 38, U.S. Code, Section 1131 (Peacetime Disability Compensation – Basic Entitlement) provides for disability resulting from personal injury suffered or disease contracted in line of duty, or for aggravation of a preexisting injury suffered or disease contracted in line of duty, in the active military, naval, or air service, during other than a period of war, the U.S. will pay to any veteran thus disabled and who was discharged or released under conditions other than dishonorable from the period of service in which said injury or disease was incurred, or preexisting injury or disease was aggravated, compensation as provided in this subchapter, but no compensation shall be paid if the disability is a result of the veteran's own willful misconduct or abuse of alcohol or drugs. 4. Title 10, U.S. Code, Chapter 61 (Retirement or Separation for Physical Disability), provides the Secretaries of the Military Departments with authority to retire or discharge a member if they find the member unfit to perform military duties because of physical disability. The U.S. Army Physical Disability Agency is responsible for operating the Disability Evaluation System (DES) and executes Secretary of Army decision-making authority as directed by Congress in Chapter 61 and in accordance with Department of Defense Instruction 1332.18 (DES) and Army Regulation (AR) 635-40 (Physical Evaluation for Retention, Retirement, or Separation). 5. AR 15-185 (Army Board for Correction of Military Records (ABCMR)), the Board’s governing regulation, states applicants are not entitled to a hearing before the Board; however, the request for a hearing may be authorized by a panel of the Board or by the Director of the ABCMR. //NOTHING FOLLOWS// ABCMR Record of Proceedings (cont) AR20210005145 6 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1