IN THE CASE OF: BOARD DATE: 11 August 2021 DOCKET NUMBER: AR20210008019 APPLICANT REQUESTS: reconsideration of his previous request for: * upgrade of his award of the Meritorious Service Medal to a Bronze Star Medal * award of the Purple Heart for injuries sustained in combat in Iraq on 19 August 2005 APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: * DD Form 149 (Application for Correction of Military Record) * 2005-2006 DD Form 214 (certificate of Release or Discharge from Active Duty) * Statement * Email Exchange * Newspaper clipping * Previous Record of Proceedings with attachments FACTS: 1. Incorporated herein by reference are military records which were summarized in the previous consideration of the applicant's case by the Army Board for Correction of Military Records (ABCMR) in Docket Number AR20100008488, on 16 September 2010. 2. The applicant states since returning from OIF-III (Operation Iraqi Freedom) and coming off orders in 2007, he has been involved in the process of requesting his Meritorious Service Medal be upgraded to a Bronze Star Medal and to be awarded the Purple Heart. He suffered a combat-connected injury to his right shoulder while in theater, He was not submitted for either award due to his unit processes at the time. a. As noted on his packet, the 48th Infantry Brigade limited awards of the Bronze Star Medal based on availability, not duty performance. This was inappropriate. Additionally, a Purple Heart was not submitted on him as no "thorough and through" wound was associated with his shoulder. Yet, he has a witness statement of the actions that occurred and has provided documentation of the unit's actions on that date. He was a senior medical Soldier on the scene but was evaluated by his medic and was the evaluated over a week later when he returned to the FOB (Forward Operating Base) that had a physician assistant. His actions and combat injury are documented and presented. b. The Bronze Star Medal is and remains the theater award for Soldiers on active duty who display meritorious service regardless of unit limits. The Purple Heart is granted to Soldiers incurring wounds or injuries as a result of immediate enemy contact. This has been established and although the previous decision of this Board to deny the award is final, he disagrees. At this point, he has an ongoing disability from this combat event and he continues to have symptoms from his dominant upper extremity. c. The person who was present has provided a signed statement, and he has exhausted the options of contacting both his Congressman in the past and his State Senator in the present. At this point, he continues to serve and help others in the adjudication of receiving awards they are due. The documents he presented were clear and should that not be sufficient, he is willing to appear before the Board in person. 3. The applicant provides a statement from Mr. P who states in 2005, he was deployed to Iraq in support of Operation Iraqi Freedom. While deployed, he was assigned as the medic for MiTT 1 and our area of operation was Lutafiyah, Iraq. While in Lutafiyah, he had to opportunity to set up a medical clinic for the Iraqi army. He requested his company commander's assistance to help me set up the clinic. The commander loaned [Applicant] to assist with the clinic set up also training the new Iraqi medic's to task. On many occasions during the applicant's visit to Lutafiyah they were subject to mortar attacks. But on one occasion and he can't remember the exact date but he remembers the incident because it was the biggest attack on them during the 9 months there. He remembers the applicant assisting him with treating the injured and as he was going to treat a casualty he was knocked off his feet by the concussion from a close mortar explosion. The applicant continued to treat as the attack went on but seems like the next day he really complained about pain in his shoulder we just took it as a sore muscle but it seems to have been more serious than we thought at the time. 4. As for upgrading his award of the Meritorious Service Medal to a Bronze Star Medal, based upon his application, the evidence of record, and accompanying supporting documents he provides, it does not appear he was recommended for or awarded the Bronze Star Medal. His application to this Board is premature: a. Army Regulation 15-185 (ABCMR), the regulation under which this Board operates, states in paragraph 2-5, Section II, that the Board will not consider any application if it determines that the member has not exhausted all administrative remedies available to him/her. b. Army Regulation 600-8-22 (Military Awards) prescribes Department of the Army policy, criteria, and administrative instructions concerning individual and unit military awards. Paragraph 1-14 of this regulation states, except for award recommendations submitted in accordance with the provisions of Section 1130, Title 10, United States Code (10 USC 1130), which is outlined below, each recommendation for an award of a military decoration must be entered administratively into military channels within 2 years of the act, achievement, or service to be honored. An award recommendation will be considered to have been submitted into military channels when it has been signed by the initiating officer and endorsed by a higher official in the chain of command. However, pursuant to 10 USC 1130, a Member of Congress can request consideration of a proposal for the award or presentation of decoration (or the upgrading of a decoration), either for an individual or unit that is not otherwise authorized to be presented or awarded due to limitations established by law or policy. Based upon such review, the Secretary of the Army will make a determination as to the merit of approving the award or presentation of the decoration and other determinations necessary to comply with congressional reporting requirements under 10 USC 1130. c. Title 10 USC 1130 allows the Service Secretary concerned to review a proposal for the award of, or upgrading of, a decoration that is otherwise precluded from consideration by limitations established by law or policy. In order to request an award under Title 10 USC 1130, an applicant must submit a DA Form 638 (Recommendation for Award). The DA Form 638 should clearly identify his/her unit, the period of assignment, and the award being recommended. A narrative of the actions or period for which he/she is requesting recognition must accompany the DA Form 638. In addition, the award request should be supported by sworn affidavits, eyewitness statements, certificates and related documents. Corroborating evidence is best provided by commanders, leaders, and fellow Soldiers who had personal (i.e., eyewitness) knowledge of the circumstances and events relative to the request. d. Title 10 USC 1130 also requires that a request of this nature be referred to the Service Secretary from a Member of Congress. Therefore, an applicant must submit his/her request through a Member of Congress who will send it to the U.S. Army Human Resources Command, ATTN: AHRC-PDP-A, 1600 Spearhead Division Avenue, Fort Knox, KY 40122. The burden and costs for researching and assembling documentation to support approval of requested awards and decorations rest with the requestor. As such, the issue of upgrading his existing Meritorious Service Medal to a Bronze Star Medal will not be further considered in this Record of Proceedings. 5. Review of the applicant's service records shows: a. He had prior enlisted service in the Georgia Army National Guard (GAARNG) from November 1986 to December 1991 and Regular Army from August 1996 to September 1998. b. He was appointed as a Reserve commissioned officer of the GAARNG and executed an oath of office on 25 September 1998. He held a Physician Assistant area of concentration (65D). c. He entered active duty on 3 January 2005 and subsequently served in Kuwait and Iraq from 17 May 2005 to 19 April 2006. He was assigned to Company C, 148th Support Battalion, 48th Brigade Combat Team. d. The applicant was awarded the Combat Medical Badge for performing medical duties while engaged in active ground combat operations under enemy fire on 2 June·2005. e. On 20 August 2005, he went on sick call with complaints of shoulder pain for 1 day. He indicated that the night prior, while running to help an Iraqi National Guard soldier during a mortar attack, he hurt his shoulder when a blast knocked his bag off of his ride side. The medic (a specialist (SPC)) recommended "follow up at STRYKER with ORTHO at AF EMEDS on BIAP once returned from St Michaels." f. On 29 August 2005 the applicant was seen by a Physician Assistant (PA) with complaints of right shoulder pain. He was prescribed 800 milligrams of Ibuprofen for pain/inflammation and prescribed therapy exercises and rubber bands following Rockwood protocol. He indicated he would follow rehab progress. g. On 9 January 2006, his company commander recommended him for award of the Meritorious Service Medal for meritorious service while assigned to C Company 148th Support Battalion, from 15 February 2005 to 1 May 2006, during Operation Iraqi Freedom. h. His battalion commander recommended approval and his brigade commander approved the award. It was announced by Permanent Orders Number 073-056 issued by Headquarters, 48th Brigade Combat Team on 14 March 2006. i. He was honorably released from active duty on 1 July 2006. His DD Form 214 shows he completed 1 year, 5 months and 29 days of active service. This DD Form 214 lists the Meritorious Service Medal. It does not list the Purple Heart as an authorized award. j. On 10 October 2007, the applicant requested the U.S. Army Human Resources Command to award him the Purple Heart and upgrade of his Meritorious Service Medal to a Bronze Star Medal. The Awards Branch at the U.S. Army Human Resources Command advised him that: (1) His injury did not meet the criteria for award of the Purple Heart and that he had 1 year from the date his Meritorious Service Medal was approved to request an upgrade of the award. (2) He could request an upgrade of his Meritorious Service Medal under the provisions of Title 10, U.S. Code, Section 1130, which allows for referral by a Member of Congress. There is no evidence to show that the applicant exercised that option. Therefore, in the absence of evidence to show he has exhausted his administrative remedies by requesting the upgrade under provisions of Title 10, U.S. Code, section 1130, this issue remains premature and will not be discussed further in this Record of Proceedings. k. On 16 September 2010, in response to his petition to this Board to award him the Purple Heart and upgrade his award of the Meritorious Service Medal to a Bronze Star Medal, the Board denied his request and determined: (1) The applicant's request to be awarded the Purple Heart for injuries sustained in Iraq on 19 August 2005 has been noted; however, there is insufficient evidence in this case to substantiate that his injury was the result of enemy action and that the injury required treatment by medical personnel. (2). While the sincerity of the applicant's claim is not in doubt, the available evidence suggests that the applicant's medical bag fell off of his shoulder while he was enroute to render aid to an Iraqi National Guard soldier on 19 August 2005. The applicant went on sick call the next day and he was seen by a medic, but it appears he was not prescribed any treatment at that time and then 10 days later he received some medication for pain from a fellow PA. It does not appear that the applicant's injury meets the criteria intended for award of the Purple Heart. Therefore, in the absence of more compelling evidence, there is no basis for awarding the applicant a Purple Heart. l. The applicant continued to serve in the ARNG, completing several periods of active duty since. He is current assigned to the U.S. Army Reserve, holding the rank of lieutenant colonel. m. On 8 August 2019 he received his Notification of Eligibility for Retired Pay at Age 60 (20-Year Letter). 6. By regulation (AR 600-8-22), 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. When contemplating eligibility for the Purple Heart, the two critical factors commanders must consider is the degree to which the enemy or hostile force caused the wound, and was the wound so severe that it required treatment by a medical officer. BOARD DISCUSSION: 1. After reviewing the application and all supporting documents, the Board found that relief was not warranted. His issue regarding upgrading the MSM to a BSM is premature. He has not utilized the 1130 process to request an upgrade to this award. His second issue regarding the PH is not supported by the evidence. 2. The Board reviewed his statement, record of service, and supporting documentary evidence. Board members noted that the available evidence suggests that the applicant's medical bag fell off of his shoulder while he was enroute to render aid to an Iraqi National Guard soldier on 19 August 2005. The applicant went on sick call the next day and he was seen by a medic, but it appears he was not prescribed any treatment at that time and then 10 days later he received some medication for pain from a fellow PA. His injury does not meet the criteria intended for award of the Purple Heart. There is insufficient evidence in this case to substantiate that his injury was the result of enemy action and that the injury required treatment by medical personnel. Because the criteria for award of the PH has not been met, Board members voted to deny relief. BOARD VOTE: Mbr 1 Mbr 2 Mbr 3 : : : GRANT FULL RELIEF : : : GRANT PARTIAL RELIEF : : : GRANT FORMAL HEARING XX: XX: XX: 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 to amend the decision of the ABCMR set forth in Docket Number AR20100008488, on 16 September 2010. 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: 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. To qualify for award of the Purple Heart the wound must have been of such severity that it required treatment, not merely examination, by a medical officer. 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. (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 emplaced trap, mine or other improvised explosive device. (3) Injury caused by chemical, biological, or nuclear agent released by the enemy. (4) Injury caused by vehicle or aircraft accident resulting from enemy fire. (5) Smoke inhalation injuries from enemy actions that result in burns to the respiratory tract. (6) Concussions (and/or mild traumatic brain injury (mTBI)) caused as a result of enemy-generated explosions that result in 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: * Frostbite (excluding severe frostbite requiring hospitalization from 7 December 1941 to 22 August 1951) * Trench foot or immersion foot * Heat stroke * Food poisoning not caused by enemy agents * Exposure to chemical, biological, or nuclear agents not directly released by the enemy * Battle fatigue, neuro-psychosis and post-traumatic stress disorders * 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 * First degree burns * Airborne (for example, parachute/jump) injuries not caused by enemy action. * Hearing loss and tinnitus (for example: ringing in the ears, ruptured tympanic membrane) * mTBI 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 * Abrasions or lacerations (unless of a severity requiring treatment by a medical officer) * Bruises or contusions (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) //NOTHING FOLLOWS// ABCMR Record of Proceedings (cont) AR20210008019 1 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1