IN THE CASE OF: BOARD DATE: 18 February 2022 DOCKET NUMBER: AR20210010911 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) * Headquarters, 90th Regional Readiness Group, Orders 04-196-00058, 14 July 2004 * Headquarters, U.S. Army Medical Department Center and School and Fort Sam Houston, Orders 299-957, 25 October 2004 * Headquarters, U.S. Army Medical Department Center and School and Fort Sam Houston, Orders 257-909, 14 September 2005 * 3d Battalion, 25th Marines, 2d Marine Division, Memorandum (2d Marine Division Patch), 15 June 2005, with U.S. Marine Corps (USMC) Certificate * Headquarters, U.S. Army Medical Department Center and School and Fort Sam Houston, Orders 292-0120, 19 October 2005 * DD Form 214 (Certificate of Release or Discharge from Active Duty) for the period ending 13 November 2005 * Document titled: "Incident Report for FOB [Forward Operating Base] Hit," undated * Headquarters, U.S. Army 90th Regional Readiness Command, Permanent Orders 43-62, 12 February 2006 * two Military Medical Records, 18 June 2013 and 11 July 2013 * Neuropsychological Report, San Antonio Military Medical Center, 24-25 May 2017 * Medical Evaluation Board (MEB) Narrative Summary, 3 July 2017 * U.S. Army Physical Evaluation Board (PEB), Fort Sam Houston, Memorandum (Request for Rating (Applicant)), 12 September 2017 * Department of Veterans Affairs (VA) Disability Evaluation System Proposed Rating, 16 October 2017 * DD Form 214 for the period ending 23 April 2018 * U.S. Army Human Resources Command (HRC) Awards and Decorations Branch Letter, 12 August 2020 * HRC Awards and Decorations Branch Letter, 15 March 2021 * HRC Awards and Decorations Branch Letter, 18 March 2021 * Detachment 1, Mission Command Training Detachments 1, 1st Brigade, 91st Training Division, 84th Training Command, Fort Bliss, TX, Memorandum ((Applicant) – Purple Heart), 30 March 2021 * HRC Combat-Related Special Compensation (CRSC) Office Letter, 1 April 2021 FACTS: 1. The applicant did not file within the 3-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 was a Reserve Soldier and was injured during Operation Iraqi Freedom (OIF) III in 2005. He sustained a traumatic brain injury (TBI) and shrapnel to his body. He was one of only five Soldiers assigned to FOB Hit, which was a USMC outpost supporting the USMC. He was treated for his injuries by Navy a medic/ corpsman. There is no medical documentation in his records prior to 2007. He has the necessary medical documentation post-deployment. The HRC Awards and Decorations Branch stated they could not use the documentation as the primary means for award of the Purple Heart. However, HRC recognizes his injury for combat compensation but not for award of the Purple Heart. 3. Following prior enlisted service in the USMC Reserve, he enlisted in the U.S. Army Reserve (USAR) on 8 April 2002. Upon completion of initial active duty training, he was awarded military occupational specialty 92S (Shower, Laundry, and Clothing Repair Specialist). 4. Headquarters, 90th Regional Readiness Group, Orders 04-196-00058, 14 July 2004, ordered him to active duty as a member of his Reserve Component unit (340th Quartermaster Company (Field Service)) to Fort Sam Houston for mobilization in support of OIF for a period of 545 days with a reporting date of 19 August 2004. 5. Headquarters, U.S. Army Medical Department Center and School and Fort Sam Houston, Orders 299-957, 25 October 2004, deployed him in support of OIF with a proceeding date of 29 October 2004. Headquarters, U.S. Army Medical Department Center and School and Fort Sam Houston, Orders 257-909, 14 September 2005, amended Orders 299-957 by changing the location of his unit to Al Asad, Iraq. 6. He was promoted to the rank/grade of sergeant/E-5 effective 3 May 2005. 7. The 3rd Battalion, 25th Marines, 2nd Marine Division, memorandum (2nd Marine Division Patch), 15 June 2005, thanked him for his service with the Marines and Sailors at FOB Hit, Iraq, and presented him with a 2nd Marine Division shoulder-sleeve insignia (combat patch), USMC Certificate, and U.S. Flag that was flown over FOB Hit. 8. Headquarters, U.S. Army Medical Department Center and School and Fort Sam Houston, Orders 292-0120, 19 October 2005, released him from active duty, not by reason of physical disability, and reassigned him to his USAR unit effective 13 November 2005. 9. He was honorably released from active duty to the control of his USAR unit on 13 November 2005. He completed 1 year, 3 months, and 9 days of net active service during this period. Item 18 (Remarks) of his DD Form 214 shows the following entries: * Ordered to Active Duty in Support of Iraqi Freedom IAW [in Accordance with] 10 USC 12302 [Title 10, U.S. Code, section 12302] * Served in a Designated Imminent Danger Pay Area 10. His DD Form 214 does not show award of the Purple Heart. 11. His records are void of contemporaneous medical documentation pertaining to combat injuries sustained during his service in Iraq. 12. His records are void of orders awarding him the Purple Heart for combat injuries sustained in Iraq. 13. Headquarters, U.S. Army 90th Regional Readiness Command, Permanent Orders 43-62, 12 February 2006, awarded him the Combat Action Badge for actively engaging or being engaged by the enemy on 8 March 2005. 14. The DA Form 199 (Informal PEB Proceedings), 28 November 2017, shows a PEB was convened on 30 October 2017 to consider his suitability for further service as a result of an MEB completed at the San Antonio Military Medical Center, Fort Sam Houston. a. The PEB determined his medical conditions of post-traumatic stress disorder (PTSD) and left foot plantar fasciitis status post-fasciotomy deemed him to be medically unfit for further service. The PEB noted his other medical conditions (i.e., TBI with memory loss) were not found to be independently unfitting as they meet medical retention standards. b. The condition of PTSD was a result of his deployment to Iraq (2003-2005). This condition limits and makes him unable to perform in his military occupational specialty. c. The PEB recommended his placement on the Temporary Disability Retired List (TDRL) with re-examination during July 2018 and a disability rating of 50 percent. d. He concurred with the findings, waived a formal hearing of his case, and digitally signed the PEB proceedings on 1 November 2017. The PEB proceedings were approved on behalf of the Secretary of the Army on 28 November 2017. 15. HRC Orders C-01-890288A01, 31 January 2018, released him from assignment because of physical disability and placed him on the TDRL in the rank/grade of staff sergeant/E-6 effective 24 April 2018. 16. He retired on 23 April 2018 under the provisions of Army Regulation 635-40 (Physical Evaluation for Retention, Retirement, or Separation), chapter 4, by reason of disability, temporary (enhanced). He completed 10 years, 8 months, and 4 days of net active service during this period. His DD Form 214 shows he was awarded the Combat Action Badge. 17. The DA Form 199 (Informal PEB Proceedings), 29 September 2020, shows a PEB was completed at Joint Base San Antonio on 24 September 2020 to reevaluate his conditions. a. The PEB found his PTSD remained unfitting and his condition of left foot plantar fasciitis status post-fasciotomy was permanent and stable. His TBI with memory loss was still not considered unfitting. b. The PEB recommended his permanent disability retirement with a disability rating of 70 percent. c. The applicant concurred with the findings, waived a formal hearing of his case, and signed the PEB proceedings on 29 September 2020. The applicant's PEB proceedings were approved on behalf of the Secretary of the Army on 29 September 2020. 18. U.S. Army Physical Disability Agency Orders D274-03, 30 September 2020, removed him from the TDRL and permanently retired him effective 30 September 2020 with a 70-percent disability rating. 19. He provided the following additional evidence: a. an undated document from an unidentified source titled: "Incident Report for FOB Hit," describing Camp Hit as a USMC base with attachments in Iraq with over 400 multinational force members. The document states the base consistently received enemy attacks, mostly indirect fire, during the period 15 March 2005 to 31 May 2005. The document does not mention the applicant; b. two military medical records, 18 June 2013 and 11 July 2013, from Weed Army Community Hospital, Fort Irwin, noting he had a history of TBI for which he was referred to the Mild TBI/Concussive Injury Program for further evaluation and treatment; c. the San Antonio Military Medical Center Neuropsychological Report, 24-25 May 2017, showing he was evaluated by a licensed medical professional for neuropsychological testing as part of his MEB proceedings. He was evaluated for PTSD and TBI; the diagnostic impression was noted as "unspecified neurocognitive disorder, mild" and "PTSD, chronic"; d. the MEB Narrative Summary, 3 July 2017, containing a summary of his evaluation and noting his medical conditions; e. the U.S. Army PEB memorandum (Request for Rating (Applicant)), 12 September 2017, indicating the PEB found him physically unfit to continue military service and requested a disability rating from the VA; f. the VA Disability Evaluation System Proposed Rating, 16 October 2017, showing his medical conditions were given a proposed service-connected combined rating of 100 percent; g. the HRC Awards and Decorations Branch letter, 12 August 2020, responding to his request for award of the Purple Heart, wherein the branch chief stated: We are unable to authorize an award of the Purple Heart for issuance. The statutory and regulatory criteria governing this award require it to be authorized to Soldiers who are wounded as a direct result of enemy action. The wound must have required treatment by a medical officer and been made a matter of official record. Military medical documentation from immediately after or close to the incident reflecting a diagnosis of and treatment for a qualifying wound must be provided. Award may be made for a wound treated by a medical professional other than a medical officer, provided a medical officer included a statement in the Soldier'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. We acknowledge receipt of the 2015 neuropsychological report, Department of Veterans Affairs rating decision, and Combat-Related Special Compensation letter. While such documents are helpful, we cannot utilize them as the primary means to verify your entitlement to the Purple Heart for an event that took place in March 2005. Without military medical documentation as described above, we will be unable to properly assess the merits of your case. For your convenience, we have enclosed resource handouts citing our regulatory requirements (please review the special criteria for concussions and Traumatic Brain Injuries) and helpful research guidance to assist you in locating the required documentation to complete your Purple Heart packet. Upon receipt of the appropriate documentation, we would be pleased to further respond to your inquiry. h. the HRC Awards and Decorations Branch letters, 15 March 2021 and 18 March 2021, noting the Awards and Decorations Branch was unable to verify his entitlement to award of the Purple Heart based on review of the documentation he submitted. Both letters noted his next course of action was to submit an application to this Board; i. the letter from his commander at the time of the event, 30 March 2021, noting his duties in support of the Marines at FOB Hit. The commander explains the applicant was hit by shrapnel and suffered a TBI from a vehicle-borne improvised explosive device while he was on gate detail in March 2005. He notes the applicant was treated by a Navy corpsman and recommends that the applicant be awarded the Purple Heart; and j. the HRC CRSC letter, 1 April 2021, approving his claim for CRSC benefits. 20. 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: After reviewing the application, all supporting documents, and the evidence found within the applicant's military records, the Board found that relief was not warranted. The applicant's contentions, his military records, and regulatory guidance were carefully considered. Board members noted that there are no contemporaneous medical documents in support of his application. The statutory and regulatory criteria governing this award require it to be authorized to Soldiers who are wounded as a direct result of enemy action. The wound must have required treatment by a medical officer and been made a matter of official record. Military medical documentation from immediately after or close to the incident reflecting a diagnosis of and treatment for a qualifying wound must be provided. Board members voted to deny relief. 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 3 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 3-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. 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. 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. 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 whether the wound was so severe that it required treatment by a medical officer. a. 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. b. 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. c. 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 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 * chemical, biological, or nuclear agents not released by the enemy * battle fatigue * 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 * PTSD * airborne (for example, parachute/jump) injuries not caused by enemy action * hearing loss and tinnitus (for example, ringing in the ears) * 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) * 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) * first degree burns //NOTHING FOLLOWS// ABCMR Record of Proceedings (cont) AR20210010911 9 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1