ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS IN THE CASE OF: BOARD DATE: 23 September 2021 DOCKET NUMBER: AR20210005156 APPLICANT REQUESTS: award of the Purple Heart. APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: * DD Form 149 (Application for Correction of Military Record under the Provisions of Title 10, U.S. Code, Section 1552) * Extract, Army Regulation 600-8-22 (Military Awards), 11 December 2006 * Orders XXXXXX, Joint Forces Headquarters – Kansas, dated 20 October * Orders XXXXXX, Camp Atterbury, dated 24 November * Standard Form 600 (Chronological Record of Medical Care), dated 16 March * Military Acute Concussion Evaluation, 16 March 2011 * Permanent Order 143-013, Headquarters, 1st Sustainment Command (Theater), 23 May 2011 * DD Form 214 (Certificate of Release or Discharge from Active Duty), for the period ending 17 November 2011 * DA Form 2173 (Statement of Medical Examination and Duty Status), dated 5 November 2014, with supporting documents * Memorandum, National Guard Bureau, dated 10 November 2014, subject: Line of Duty Determination (Applicant) * Memorandum, U.S. Army Human Resources Command (HRC), dated 5 July 2016, subject: Request for Award of the Purple Heart * Memorandum, Headquarters, Kansas National Guard, dated 1 May 2017, subject: Disposition of Purple Heard Submission (Applicant) * DA Form 4187 (Personnel Action), Request for Retroactive Purple Heart, undated and unsigned * Medical Records, Military and Department of Veterans Affairs (VA) * Sworn Statements, dated 24 March 2011 and 7 January 2020 * Memorandum, 909th Forward Surgical Team, dated 28 January 2020, subject: (Applicant’s) Purple Heart Documentation * Letter, Applicant, dated 3 November 2020 FACTS: 1. The applicant states he was wounded in action in Iraq on 16 March 2011 as the result of an improvised explosive device (IED). Within 3 hours of the blast, he was diagnosed with a mild traumatic brain injury (mTBI) following the enemy generated explosion. Despite his injury and impaired brain function, the convoy commander did not allow for restriction from full duty and he was ordered to continue the mission to their destination. Because military necessity and mission demands prevented him from receiving a follow-up evaluation 24 hours after his initial diagnosis, HRC denied his request for award of the Purple Heart. 2. On 6 November 2010, the applicant, a member of the Army National Guard, was ordered to active duty in support of Operation Enduring Freedom. 3. Orders XXXXXXX, Camp Atterbury, dated 24 November 2010, deployed the applicant in a Temporary Change of Station status in support of Operation Enduring Freedom, Airfjan, Kuwait. He was directed to proceed on 29 November 2010, for a period not to exceed 360 days. 4. The applicant’s Standard Form 600 (Chronological Record of Medical Care), dated 16 March 2011, 0254 hours, shows: * injury from terrorist explosion * released without limitations * follow-up with primary care manager in 24-72 hours * applicant was exposed to blast 3 hours ago with no loss of consciousness, no alteration of consciousness * mild headache * "min tennitis" * Military Acute Concussion Evaluation – 26/30 * mild TBI evaluation following blast exposure * treated with Tylenol and will have follow-up with primary care manager based on Joint Theatre Trauma System Clinical Practice Guideline 5. The sworn statement from Specialist A____, dated 24 March 2011, states his vehicle was traveling in a convoy when it was struck by an explosive formed projectile. The incident occurred on 15 March 2011, but he was not sure of the time. The damage to their vehicle was minimal and they were able to continue traveling to the next check point to assess the damage. They changed a tire and continued their mission. 6. The sworn statement from Sergeant T____, dated 24 March 2011, states on 15 March 2011, his crew was traveling in a convoy in Iraq when their vehicle was struck by an explosive formed projectile. He checked to make sure his crew were okay, to include his driver, the applicant. The vehicle was still moving so he reported the incident and stopped to do a battle damage assessment at the next checkpoint. They found that several exterior boxes had blown open, all the basic issue items had been lost, and the left front tire was flat. 7. Permanent Order XXXXX, Headquarters, 1st Sustainment Command (Theater), dated 23 May 2XXX, awarded the Combat Action Badge to the applicant for actively engaging or being engaged by the enemy on 15 March 2011. 8. The applicant’s Standard Form 600, dated 13 July 2011, lists the chief complaints of migraines, insomnia, and post-traumatic stress disorder (PTSD). The history of present illness states the applicant’s vehicle hit an IED while in Iraq 3 months ago. He was the driver of the vehicle that hit a sandbank over an explosive which was detonated by remote control. The vehicle was not disabled and there were no deaths in event. The applicant reported “We were all shaken around the vehicle” and “they did a mental test on me and said I was okay.” Six weeks later, he came under mortar attack. Since then, he has had nightmares and flashbacks triggered by crisp or loud noises. 9. The applicant’s outpatient record, dated 26 July 2011, shows the applicant was evaluated for insomnia. A note indicates continued headaches, insomnia and nightmares. Medication was prescribed. 10. The applicant’s outpatient record, dated 23 August 2011, shows he was evaluated for insomnia. A note indicates prior mTBI. Continued headaches and insomnia. Medication was prescribed. 11. The DA 4187 (Personnel Action), dated 15 September 2015, requested award of the Purple Heart and verified the applicant’s injuries received on 15 March 2011 from an IED blast. It states that while operating a mine resistant ambush protected vehicle during a mission in Iraq, the applicant required a Military Acute Concussion Evaluation and an mTBI evaluation. 12. On 17 November 2011, he was released from active duty. His DD Form 214 shows in: * item 12c (Net Active Service This Period) – 1 year and 12 days * item 13 (Decorations, Medals, Badges, Citations and Campaign Ribbons Awarded or Authorized) – * Army Commendation Medal * Army Good Conduct Medal * Army Reserve Components Achievement Medal * National Defense Service Medal * Global War on Terrorism Expeditionary Medal * Global War on Terrorism Service Medal * Iraq Campaign Medal with Campaign Star * Army Service Ribbon * Overseas Service Ribbon * Army Reserve Component Overseas Training Ribbon * Armed Forces Reserve Medal with “M” Device * Combat Action Badge * Driver and Mechanic Badge with Driver-Wheeled Vehicle(s) Clasp * Item 18 (Remarks) – Service in Kuwait/Iraq from 30 November 2010 through 14 October 2011 * item 23 (Type of Separation) – Release from Active Duty * item 24 (Character of Service) – Honorable * item 25 (Separation Authority) – Army Regulation 635-40, Chapter 5 * item 28 (Narrative Reason for Separation) – Completion of Required Active Service 13. The applicant’s VA progress notes, dated 12 January 2012, show he was evaluated by a psychologist. Notes indicate PTSD symptoms, continued headaches, and some short-term memory problems. He was diagnosed with PTSD. 14. The applicant’s DA Form 2173 (Statement of Medical Examination and Duty Status), dated 5 November 2014, shows in: * block 5a (Accident Information/date) – 10 January 2011 * block 5b (Accident Information/place) – Iraq and Kuwait * block 10 (Nature and Extent) – 309.81 post-traumatic stress disorder unknown * block 15 (Details of Accident or History of Disease) – applicant was involved in multiple IED and small arms fire incidents while deployed involving attacks where members of his team were killed; he has been diagnosed and treated at the VA * block 16 (Date by Attending Physician/Patient Administrator) 8 December 2011 * block 31 (Formal Line of Duty Investigation Required) – commander marked “no” * block 33 (Signature Date/Unit Commander) – 5 November 2014 15. The National Guard Bureau memorandum, dated 10 November 2014, stated the DA Form 2173 for the applicant for PTSD that occurred during Operation Enduring Freedom was approved in the line of duty. 16. Orders 183-709, Joint Force Headquarters – Kansas, dated 2 July 2015, promoted him to the rank/grade of staff sergeant/E-6. 17. The HRC memorandum, dated 5 July 2016, returned the request for award of the Purple Heart for additional documentation. It states that: a. In order to determine the applicant’s eligibility for the Purple Heart, HRC requires medical documentation describing a diagnosis of injuries caused by the enemy immediately after, or close to the incident date and signed or endorsed by a medical professional. b. They received the DA Form 4187 dated 15 September 2011, however, all requests for retroactive award of the Purple Heart must be endorsed through the first general officer in the current chain of command. Additionally, a copy of the completed DA Form 4187 containing the disposition of the previous request as it was processed originally when the wartime chain of command had approval authority is required. 18. The Headquarters, Kansas National Guard memorandum, dated 1 May 2017, advised the applicant’s commander that a DA Form 4187 requesting a Purple Heart for the applicant was submitted twice to HRC. Both submissions were returned without action because the medical documentation showed no injury which would qualify for the award. This award will not be approved by HRC, unless new medical documentation is provided that shows a qualifying injury, and the disposition of the DA 4187 that was submitted originally through the wartime chain of command. 19. A DA Form 4187, undated and incomplete, was addressed to the applicant’s general officer for request for retroactive Purple Heart award. It states: a. On 15 September 2011, a request was initiated for the applicant to be awarded the Purple Heart. On 5 July 2016 and 1 May 2017, the request was returned for additional medical documentation. The requested medical documentation, original award packet, and memorandum requesting additional medical documentation has been forwarded with this current request. b. The original DA 4187 remarks stated: Request award of the Purple Heart for the injuries that the applicant received from an IED blast on 15 March 2011, while operating a mine resistant ambush protected vehicle during a mission in Iraq, requiring a Military Acute Concussion Evaluation and an mTBI evaluation. Supporting documents included DD Form 214, Standard Form 600 medical records, mobilization orders, Enlisted Record Brief, temporary change of station orders, eyewitness statements, and narrative. c. Section V – Certification/Approval/Disapproval, is not certified, signed, or dated by the applicant’s commander. 20. On 3 June, 2017, the applicant’s commander recommended approval of award of the Purple Heart. The DA Form 4187 was addressed through the applicant’s general officer to HRC, and states, in part: a. Request award of the Purple Heart for the applicant for injuries received on 15 March 2011 while deployed in support of Operation New Dawn in Kuwait. The applicant was in an IED blast while operating a mine resistant ambush protected vehicle during a mission in Iraq and required a Military Acute Concussion Evaluation and an mTBI evaluation. The applicant was diagnosed by the VA with TBI resulting from this event. b. Supporting documents include DD Form 214, mobilization orders, temporary change of station orders, narrative, Standard Form 600 medical records, VA medical record, Enlisted Record Brief, two eyewitness statements, and applicant’s sworn statement. 21. The memorandum from HRC, dated 9 May 2018, subject: Award of the Purple Heart for (Applicant), disapproved the award. The Chief, Soldier Programs and Services Division stated that after a thorough review of the information provided, the award of the Purple Heart for the event does not meet the statutory guidance. The medical documentation provided does not indicate diagnosis of and treatment for a qualifying injury. If the applicant believes this determination to be unjust, he has the right to appeal to the Army Board for Correction of Military Records (ABCMR). 22. The email from the applicant to HRC, subject: Award Question, dated 3 December 2019, requested guidance regarding an award. He stated that he would like to speak to someone in order to gain the clarity needed for the appeal process. He stated that over the past 8 years he has been given conflicting information and would like to know where he stands on this matter. 23. The sworn statement from Master Sergeant J____, dated 7 January 2020, states in March 2011, he was serving as the security platoon sergeant when the applicant’s vehicle was struck by an IED in Iraq. The left front tire was blown and had to be changed, as well as several of the compartment boxes on the outside of the truck. They continued the mission and the Soldiers affected were evaluated at the Troop Medical Clinic and were told they would need a follow-up within 24-72 hours. However, these Soldiers were part of a convoy escort team providing security for a heavy equipment transporter convoy. The convoy commander had received instruction from the battalion commander they must continue mission to their destination. These Soldiers reminded the convoy commander they were supposed to receive follow-up evaluations at the Troop Medical Clinic and needed to remain at the Baghdad International Airport base. However, the battalion commander once again instructed them to continue mission. Not wanting to be non-compliant with orders, the Soldiers continued mission as directed. Afterwards, recommendations for the Combat Action Badge and Purple Heart were submitted, but were not awarded before departing the combat theatre. Later, the documents could not be found. Since then, the original documentation from the initial medical checkup has been located and is available. However, the Soldiers affected were not allowed to get the follow-up evaluation as instructed because they were ordered to continue the mission. 24. The memorandum from the 909th Forward Surgical Team, dated 28 January 2020, states the applicant is entitled to the Purple Heart award. The medical doctor stated the documentation demonstrates the diagnosis of mTBI after exposure to an IED explosion and subsequent evaluation and treatment related to this war injury. Furthermore, a sworn statement from his former platoon sergeant indicated that the activity restriction secondary to the mTBI was not supported by the commander. The VA has awarded the applicant with a 10 percent disability rating for his TBI. Additionally, his medical records show: a. On 16 March 2011, the applicant was evaluated at Sather Clinic and diagnosed with mTBI after an IED blast 3 hours earlier. A Military Acute Concussion Evaluation was scored at 26/30. Non-steroidal anti-inflammatory drug treatment was provided with follow-up planned for a re-evaluation at 24-hours, which was not allowed by mission requirements. b. On 13 July 2011, the applicant was treated by a family nurse practitioner for migraines, insomnia, and PTSD. Continued headaches 3-5 times per week are noted. The IED explosion with subsequent mortar attack was noted. Diagnoses from this visit include TBI, migraine headache, concussion without loss of consciousness and nightmare disorder. Medication was prescribed. A line of duty investigation follows which indicates the applicant was involved with multiple IED blasts and was treated at a military treatment facility for TBI and concussion without loss of consciousness. c. On 26 July 2011, the applicant was evaluated for insomnia. A note indicates continued headaches, insomnia and nightmares. Medication was prescribed. d. On 23 August 2011, the applicant was evaluated for insomnia. A note indicates prior mTBI. He had continued headaches and insomnia. Medication was prescribed. e. On 12 January 2012, the applicant was evaluated by a psychologist. He was diagnosed with mild to moderate PTSD. Continued psychotherapy was planned. f. On 18 January 2012, the applicant was seen by a neurology provider. He was diagnosed with post traumatic headaches and treated with medication. g. On 14 February 2012, the applicant was seen by a psychologist at a VA Medical Center. The applicant was diagnosed with attention disorder with mild to moderate language deficits that could represent an acquired injury. Also noted were sleep disorder and/or prominent anxiety. The note indicates VA disability ratings include 10 percent disability for TBI. h. Based on the provisions of Army Regulation 600-8-22 (Military Awards), the applicant is entitled to award of the Purple Heart. He has been diagnosed with mTBI, secondary to the IED explosion of 16 March 2011. Despite this diagnosis, the mission did not allow for restricted duty or repeat evaluation. When he was next evaluated in Kuwait, several months later, he continued to have mild TBI symptoms and has subsequently been treated in both the military and VA health systems with ibuprofen, Topiramate, and psychotherapy. 25. Orders XXXXXXX, Joint Force Headquarters – Kansas, dated 4 June promoted him to the rank/grade of sergeant first class/E-7. 26. MEDICAL REVIEW: The Army Review Boards Agency (ARBA) Medical Advisor was asked to review this case. Documentation reviewed included the applicant’s ABCMR application and accompanying documentation, the military electronic medical record (AHLTA), the VA electronic medical record (Joint Legacy Viewer (JLV)), the electronic Physical Evaluation Board (ePEB), the Medical Electronic Data Care History and Readiness Tracking (MEDCHART) application, the Army Aeromedical Resource Office (AERO), and the Interactive Personnel Electronic Records Management System (iPERMS). The ARBA Medical Advisor made the following findings and recommendations: a. The applicant is applying to the ABCMR requesting a Purple Heart for TBI. He states he sustained a “mild TBI sustained while assigned to 778 Trans Co deployed in support of Operation New Dawn in Kuwait.” b. The Record of Proceedings details the applicant’s military service and the circumstances of the case. c. The incident as reported by his company commander in the Purple Heart request: “Request award of the Purple Heart for SGT {Applicant} for injuries received on March 15th, 2011 while assigned to 778 Trans Co (Het) deployed in support of Operation New Dawn in Kuwait. Sergeant {Applicant} was in an Improvised Explosive Device (IED) blast while operating a Caiman Mine Resistant Anti- Personnel (MRAP) during a mission in Iraq and required a Military Acute Concussion Evaluation (MACE) and a mild Traumatic Brain Injury (TBI) evaluation.” d. From the January 2020 statement of MSG J. J., the security platoon sergeant for the 778 HET Company: (1) “{They} were struck by an E.F.P. {explosively formed projectile) IED south of Baghdad, Iraq around checkpoint 8B. The left front tire of HET 423 Caiman MRAP was blown and had to be changed as well as several of the compartment boxes on the outside of the truck were blown open and BII {basic issue items} were lost. After, they were allowed to continue mission into the camp at BIAP {Baghdad International Airport}. Once they arrived they were checked out at the TMC and told they would need a follow up within 24-72 hours ... (2) My Soldiers then reminded the Convoy Commander that they were supposed to receive a follow up at the TMC and needed to remain at BIAP. The 718th CSSB battalion TOC once again instructed them to continue mission. Not wanting to be non-compliant with orders the Soldiers continued mission.” e. Paragraph 2-8 of AR 600-8-22, Military Awards (11 December 2006), lists the criteria for the awarding of the Purple Heart. Paragraph 2b lists the circumstances under which the injury is eligible for a Purple Heart (enemy action, friendly fire, peace keeping, etc.). Paragraph 2e states the wound and medical care requirements for the award: “A wound is defined as an injury to any part of the body from an outside force or agent sustained under one or more of the conditions listed above. A physical lesion is not required, however, the wound for which the award is made must have required treatment by medical personnel and records of medical treatment for wounds or injuries received in action must have been made a matter of official record.” f. Clarification of the standards for awarding a Purple Heart for a combat related TBI were provided in Army Directive 2011-07 (Awarding the Purple Heart) issued 29 April 2011. While it makes clear a concussion / mTBI may be eligible for the awarding of a Purple Heart, paragraph 3 continues to maintain the eligibility criteria of AR 600-8-22: WHEN RECOMMENDING AND CONSIDERING AWARD OF THE PURPLE HEART, THE CHAIN OF COMMAND WILL ENSURE THE CRITERIA IN PARAGRAPH 2-8 OF REFERENCE 8 IS MET, AND THAT BOTH DIAGNOSTIC AND TREATMENT FACTORS ARE PRESENT AND DOCUMENTED IN THE SOLDIER'S MEDICAL RECORD BY A MEDICAL OFFICER. PARAGRAPH 4C BELOW DEFINES MEDICAL OFFICER. g. Paragraph 4C: “A MEDICAL OFFICER IS DEFINED AS A PHYSICIAN WITH OFFICER RANK.” h. From the applicant’s 16 March 2011 AHLTA encounter: 36-year-old male was exposed to blast 3 hours ago with no LOC {loss of consciousness}, no AOC {alteration of consciousness}. Mild HA, minimal Tinnitus. i. The physician documented a normal examination, going on to opine: Mild TBI evaluation following blast exposure. 26/30 MACE with minimal HA. Treated with Tylenol and will have follow up with PCM {primary care manager} based on Joint Theatre Trauma System Clinical Practice Guideline.” j. A Military Acute Concussion Evaluation MACE) score of 26 is within the normal range of 25 – 30. He was next seen on 13 July 2011 for headaches. k. While the applicant may have sustained a TBI at the time, there is no evidence of any qualify wound(s) with subsequent required medical treatment at the time of the injury. l. It is the opinion of the ARBA Medical Advisor that the awarding of a Purple Heart is not warranted. BOARD DISCUSSION: 1. After reviewing the application and all supporting documents, the Board found relief is not warranted. 2. The Board found insufficient evidence to support a conclusion that the applicant's mTBI required restriction from full duty for a period of greater than 48 hours due to persistent signs, symptoms, or physical finding of impaired brain function. The Board concurred with the conclusion of the ARBA Medical Advisor and determined the applicant did not incur an injury on 15 March 2011 that met the criteria for 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. Army Regulation 600-8-22 (Military Awards) provides that the Purple Heart is awarded for a wound sustained 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 a medical officer, and the medical treatment must have been made a matter of official record. a. The Purple Heart differs from all other decorations in that an individual is not "recommended" for the decoration; rather, he or she is entitled to it upon meeting specific criteria. b. A wound is defined as an injury to any part of the body from an outside force or agent sustained under one or more of the conditions listed below. 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 service member'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 service member'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. c. The key issue commanders must take into consideration when contemplating an award of this decoration 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 sole justification for award. d. Examples of enemy-related injuries which clearly justify award of the Purple Heart are as follows: * 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 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 e. The following nonexclusive list provides examples of medical treatment for mTBI or concussion that meet the standard of treatment necessary for award of the PH: (1) Referral to neurologist or neuropsychologist to treat the diagnosed mTBI or concussion. (2) Rehabilitation (such as occupational therapy, physical therapy, and so forth) to treat the mTBI or concussion. (3) Restriction from full duty for a period of greater than 48 hours due to persistent signs, symptoms, or physical finding of impaired brain function due to the mTBI or concussion. f. Combat theater and unit command policies, or medical protocols, mandating rest periods, light duty, or “down time” and/or the administration of pain medication (for example, acetaminophen, aspirin, or ibuprofen) in the absence of persistent symptoms of impairment following concussive incidents do not constitute qualifying treatment for a concussive injury. //NOTHING FOLLOWS// ABCMR Record of Proceedings (cont) AR20210005156 13 1