IN THE CASE OF: BOARD DATE: 18 January 2022 DOCKET NUMBER: AR20210011647 APPLICANT REQUESTS: entitlement to the Purple Heart (PH) and a personal appearance hearing before the Board. APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: * DD Form 149 (Application for Correction of Military Record) * DD Form 214 (Certificate of Release or Discharge from Active Duty) * Self-Authored Statement * 2 Memoranda * DA Form 4187 (Personnel Action) * 3 DA Forms 2823 (Sworn Statement) * DA Form 2173 (Statement of Medical Examination and Duty Status) * 3 Standard Forms (SF) 600 (Chronological Record of Medical Care) * Orders: ST-340-0621 dated 6 December 2018 * Enlisted Record Brief FACTS: 1. The applicant states his original PH application packet included several documents which confirmed his loss of consciousness (LOC) after an enemy improvised explosive device (IED) explosion. He contends he was injured on 5 April 2019, in Afghanistan, while he was walking 15 meters from an IED blast that took out a building, killing 2 and injuring 8. 2. Having 3 months and 20 days of prior active service, the applicant entered active duty as a member of the U.S. Army National Guard on 26 November 2018. He served as an infantryman in the designated imminent danger pay area of Afghanistan from 11 January to 15 July 2019. 3. On 15 August 2019, he was honorably released from active duty upon completion of his required active service. His DD Form 214 does not list the PH as an authorized award. 4. The applicant provides a/an: a. DA Form 2823 dated 7 April 2019, from Captain S______ whose statement does not address the applicant being engaged by an enemy IED. b. Post-mission wellness check SF 600 dated 4 June 2019, noting the applicant presented with a headache and hand pain after an IED went off 15 meters from the applicant. The applicant stated his hand was poked with a nail in the rubble. His eyes were unreactive to light and he had difficulty forming sentences. He was to have a Military Acute Concussion Evaluation (MACE) exam, rest, and have a follow-up appointment for a MACE exam and a tetanus shot. c. SF 600 dated 28 June 2019, which notes the applicant presented with headaches intermittently for approximately 2 months after being blown up in early April by an IED. The applicant appeared lethargic with bags under his eyes. He was diagnosed with TBI symptoms, educated on TBI, which may last 3 to 5 months' post-blast. He was instructed to follow-up at demobilization and to take Tylenol as needed. d. SF 600 dated 19 July 2019, in which the applicant gave a personal history of concussion with LOC of 30 minutes or less and TBI. He stated he felt like he was hit by a bus. A few months later, he began having headaches starting later in the day with throbbing sides and one in his right ear with sharp right ear pain and a loud foghorn sound (tinnitus). He was released without limitations and received a referral to Otolaryngology. e. DA Form 2823 dated 6 May 2020, from grade E-4 D_____ who states, in effect, he was personally present and witnessed the applicant engaging the enemy, who was shooting through the floor when the building next to them exploded. The blast created a mass casualty event and 19 people were hoisted out of the village through medical evacuation. As the platoon medic, he monitored the applicant for the duration of the operation. The applicant was clearly disoriented, and had a headache despite taking medication. Upon return to camp the applicant failed his MACE exam and was evaluated by a medical officer who diagnosed and treated him for mTBI. f. DA Form 2823 dated 8 May 2020, from the applicant who states, in effect, while taking up security positions in an alleyway, he and his comrades were impacted by a house borne IED that exploded within 20 meters of their location. He remembered everything going very dark, and after what he felt was a few seconds, being able to only see black with orange bursts of light. He remembered standing up and seeing a Soldier come around the corner of the building with his nods dangling off his helmet. He yelled at him the other Soldiers to follow him up the hill to get out of the alley. After the initial explosion, everyone set about dealing with the mass casualty event, with one Soldier being evaluated for shrapnel in his back. Over the next two days he felt quite disoriented, and sometimes nauseated; however, continuous contact did not really allow for any type of break. When they returned to Camp Dahlke, he took a MACE exam and was told that he did not pass and would have to take another one. The results were to be uploaded into some online system. g. DA Form 2173 dated 30 July 2020, which states, in effect, on 5 April 2019, in Afghanistan, the applicant was walking 15 meters from an IED blast that took out a building, killing 2 and injuring 8. The blast knocked the applicant on his back and he saw grey and orange flashes. "LOC+AOC+PTA." h. Line of Duty Determination memorandum dated 6 August 2020, in which the Chief, Personnel Division, National Guard Bureau, forwarded the approved DA Form 2173 to the Commander, Joint Forces Headquarters for the applicant's TBI and concussion with LOC of 30 minutes or less, post-traumatic headache, and right ear otalgia which occurred during Operation Freedom's Sentinel. i. DA Form 4187 dated 12 September 2020, in which he is recommended for the PH for wounds/injuries received in action caused by the enemy on 4 April 2019. The form states the applicant was diagnosed with a mTBI with LOC and concussion following an IED explosion. 5. On 19 January 2021, the U.S. Army Human Resources Command (HRC) disapproved his request for award of the PH for injuries received while deployed in support of Operation Enduring Freedom. The HRC official stated, "After a thorough review of the information provided and consultation with the HRC Office of the Surgeon General, the forwarded recommendation for award of the PH does not meet the statutory guidance outlined in Army Regulation 600-8-22 (Military Awards), paragraph 2- 8g.(13), mild traumatic brain injury (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." 6. Army Regulation 600-8-22 contains the regulatory guidance pertaining to entitlement to the PH and 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 LOC; 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. 6. Army Regulation 15-185 (ABCMR) states an applicant is not entitled to a hearing before the ABCMR. Hearings may be authorized by a panel of the ABCMR or by the Director of the ABCMR. BOARD DISCUSSION: After reviewing the application, all supporting documents, and the evidence found within the military record, the Board found that relief was not warranted. The applicant’s contentions, the military record, and regulatory guidance were carefully considered. Board members noted one of the medical forms, SF 600 dated 19 July 2019, in which the applicant gave a personal history of concussion with LOC of 30 minutes or less and TBI. He stated he felt like he was hit by a bus. A few months later, he began having headaches starting later in the day with throbbing sides and one in his right ear with sharp right ear pain and a loud foghorn sound (tinnitus). He was released without limitations and received a referral to Otolaryngology. Additionally, a DA Form 2173 dated 30 July 2020, states, in effect, on 5 April 2019, in Afghanistan, the applicant was walking 15 meters from an IED blast that took out a building, killing 2 and injuring 8. The blast knocked him on his back and he saw grey and orange flashes. "LOC+AOC+PTA." Finally, he provided a DA Form 4187 dated 12 September 2020, in which he is recommended for the PH for wounds/injuries received in action caused by the enemy on 4 April 2019. The form states the applicant was diagnosed with mTBI with LOC and concussion following an IED explosion. The governing regulation provides that for award of the Purple Heart, evidence provided must indicate he suffered, as a result of hostile action, a concussion or TBI so disabling as 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 incident. The applicant has no medical documentation showing a loss of consciousness nor that shows he was restricted from duty for a period equaling 48 hours or more. Nevertheless and not withstanding HRC's denial for this award, the Board agreed the documents provided are sufficient to grant relief. BOARD VOTE: Mbr 1 Mbr 2 Mbr 3 XX: XX: XX: GRANT FULL RELIEF : : : GRANT PARTIAL RELIEF : : : GRANT FORMAL HEARING : : : DENY APPLICATION BOARD DETERMINATION/RECOMMENDATION: The Board determined the evidence presented is sufficient to warrant a recommendation for 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 4 April 2019. 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 prescribes Army policy, criteria, and administrative instructions concerning individual and unit military awards. a. The PH 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. 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 above. 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 PH 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. When contemplating an award of the PH, the key issue that commanders must take into consideration 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 the sole justification for award. d. Examples of enemy-related injuries that clearly justify award of the PH include concussion injuries caused as a result of enemy-generated explosions resulting in a mTBI 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. Examples of injuries or wounds that clearly do not justify award of the PH include post-traumatic stress disorders, hearing loss and tinnitus, mTBI 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. f. When recommending and considering award of the PH for a mTBI or concussion, the chain of command will ensure that both diagnostic and treatment factors are present and documented in the Soldier's medical record by a medical officer. 2. Army Directive 2011-07 (Awarding the PH), dated 18 March 2011, provides clarifying guidance to ensure the uniform application of advancements in medical knowledge and treatment protocols when considering recommendations for award of the PH for concussions (including mTBI and concussive injuries that do not result in a LOC). The directive also revised Army Regulation 600-8-22 to reflect the clarifying guidance. a. Approval of the PH requires the following factors among others outlined in Department of Defense Manual 1348.33 (Manual of Military Decorations and Awards), Volume 3, paragraph 5c: wound, injury or death must have been the result of an enemy or hostile act, international terrorist attack, or friendly fire; and the wound for which the award is made must have required treatment, not merely examination, by a medical officer. Additionally, treatment of the wound shall be documented in the Soldier's medical record. b. Award of the PH may be made for wounds treated by a medical professional other than a medical officer provided a medical officer includes a statement in the Soldier'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. A medical officer is defined as a physician with officer rank. The following are medical officers: an officer of the Medical Corps of the Army, an officer of the Medical Corps of the Navy, or an officer in the Air Force designated as a medical officer in accordance with Title 10, United States Code, Section 101. d. 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 (for example, independent duty corpsmen and Special Forces medics). Basic corpsmen and medics (such as combat medics) are not physician extenders. e. When recommending and considering award of the PH for concussion injuries, the chain of command will ensure that the criteria are met and that both diagnostic and treatment factors are present and documented in the Soldier's medical record by a medical officer. f. 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 PH: (1) Diagnosis of concussion or mTBI; (2) Any period of loss or a decreased level of consciousness; (3) Any loss of memory of events immediately before or after the injury; (4) 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, etc.) that may or may not be transient; and (5) Intracranial lesion (positive computerized axial tomography) or magnetic resonance imaging scan. g. The following nonexclusive list provides examples of medical treatment for concussion that meet the standard of treatment necessary for award of the PH: (1) Limitation of duty following the incident (limited duty, quarters, etc.); (2) Pain medication, such as acetaminophen, aspirin, ibuprofen, etc., to treat the injury; (3) Referral to a neurologist or neuropsychologist to treat the injury; and (4) Rehabilitation (such as occupational therapy, physical therapy, etc.) to treat the injury. h. Combat theater and unit command policies mandating rest periods or downtime following incidents do not constitute qualifying treatment for concussion injuries. To qualify as medical treatment, a medical officer or medical professional must have directed the rest period for the individual after diagnosis of an injury. 3. Army Regulation 15-185 (ABCMR) prescribes the policies and procedures for correction of military records by the Secretary of the Army, acting through the ABCMR. The ABCMR may, in its discretion, hold a hearing or request additional evidence or opinions. Additionally, it states in paragraph 2-11 that applicants do not have a right to a hearing before the ABCMR. The Director or the ABCMR may grant a formal hearing whenever justice requires. The ABCMR considers individual applications that are properly brought before it. The ABCMR will decide cases on the evidence of record. It is not an investigative body. The ABCMR begins its consideration of each case with the presumption of administrative regularity. The applicant has the burden of proving an error or injustice by a preponderance of the evidence. //NOTHING FOLLOWS// ABCMR Record of Proceedings (cont) AR20210011647 1 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1