IN THE CASE OF: BOARD DATE: 19 August 2022 DOCKET NUMBER: AR20210015646 APPLICANT REQUESTS: •Award of the Purple Heart •Removal of U.S. Army Human Resources Command (HRC) denial memorandum •A personal appearance before the Board APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: •DD Form 149 (Application for Correction of Military Record)•Self-Authored Statement, dated 28 February 2021•Orders Number A-08-117261 issued by HRC, dated 10 August 2011•one photo, dated 21 November 2011•SF 600, dated 26 November 2011•SF 600, dated 19 December 2011•DD Form 214 (Certificate of Release or Discharge from Active Duty), ending on 14 April 2012•SF 600, dated 1 February 2012•SF 600, dated 10 April 2012•DD Form 2697 (Report of Medical Assessment), dated 10 April 2012•Department of Veterans Affairs (VA) Diagnostic Report, dated 30 July 2012•Statement of , MD, dated 16 September 2019•Reserve Component Manpower System Automated Record Brief, dated16 November 2020•Officer Record Brief, dated 16 November 2020•DA Form 2823 (Sworn Statement) authored by Major (MAJ) , dated22 February 2021•DA Form 2823 authored by Command Sergeant Major (CSM) , dated 24 February 2021•HRC Memorandum, Subject: Award of the Purple Heart, dated 23 July 2021•Self-Authored Statement, undated•Statement of , MD, undated•Statement of , MD, undated FACTS: 1.The applicant states: a.He sustained injuries while receiving and engaging the enemy with direct fire at an outpost in southern Afghanistan as described in witness sworn statements. Additional evidence describes his diagnosis and treatment of both his subchondral bone fracture to the knee, which required surgery, and a traumatic brain injury (TBI) resulting in a brain lesion revealed by a magnetic resonance imaging (MRI), which required a referral to a Neurologist. b. The HRC denial letter states that his Purple Heart recommendation did not meet the statutory guidance outlined in Army Regulation (AR) 600-8-22 (Military Awards), paragraph 2-8g.c. which states 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. c. Contrary to the assertion that the severity of his knee fracture did not require treatment, reports from military medical officers determined that physical therapy was warranted. The treatment was performed in theater at the Kandahar Airfield Clinic from the date of injury in December 2011 to February 2012 as noted by Navy Lieutenant and military Physical Assistant, . The knee injury was not a meniscus tear or irritation of ineligible soft tissue. He was diagnosed with a fracture to the subchondral bone, which is located beneath the patella and cartilage and critical to weight-bearing joints. d. When his Command submitted his original Purple Heart recommendation, he was unaware of Military Personnel (MILPER) Message Number 11-125, which made TBI's eligible for consideration of the Purple Heart. 2.The applicant's service record shows: a.On 14 May 1993, having had prior enlisted service in the Regular Army and theU.S. Army Reserve (USAR), the applicant was commissioned as a Reserve officer. b.DD Form 214, ending on 15 April 1994, shows the applicant was retired fromactive duty by reason of temporary disability. c.On 13 November 1998, the applicant was appointed as a Reserve commissionedofficer in the Army National Guard. d.NGB Form 22 (Report of Separation and Record of Service), ending on 1 June 2002 shows the applicant was honorably released from the Army National Guard and transferred to the USAR Control Group (Reinforcement). e. DD Form 2808 (Report of Medical Examination), dated 9 November 2006, shows the applicant was examined for retention purposes and was qualified for service. There were no abnormalities reported for his lower extremities, feet or neurological condition and no identifying scars. f. Orders Number A-06-112782 issued by HRC, dated 15 June 2011, ordered the applicant to active duty for contingency operation for active duty operational support in Baghdad, Iraq, effective 23 July 2011. g. Orders Number A-06-112782R issued by HRC, dated 14 July 2011, revoked Orders Number A-06-112782, dated 15 June 2011, pertaining to the applicant's extended active duty order. h. DD Form 214, ending on 14 April 2012, shows the applicant was honorably released from active duty. (1)Item 12a (Date Entered Active Duty This Period) – 8 September 2011. (2)Item 12c (Net Active Service This Period) – 0 years, 6 months, and 27 days. (3)Item 12f (Foreign Service) – 0 years, 6 months, and 4 days. (4)Item 13 (Decorations, Medals, Badges, Citations, and Campaign RibbonsAwarded or Authorized) – •Afghanistan Campaign Medal with one bronze service star •Army Commendation Medal (2nd Award) •Army Achievement Medal (4th Award) •Army Good Conduct Medal •National Defense Service Medal •Global War on Terrorism Service Medal •Army Service Ribbon •Armed Forces Reserve Medal with "M" Device •North Atlantic Treaty Organization (NATO) Medal •Combat Infantryman Badge •Parachutist Badge •Air Assault Badge (5)Item 18 (Remarks) shows service in Afghanistan from 30 September 2011through 3 April 2012. i.Orders Number RC-194-0013 issued by the U.S. Army Installation ManagementCommand, Headquarters, U.S. Army Garrison, Fort Bliss, TX, dated 13 July 2021, ordered the applicant to active duty in support of Operation Enduring Freedom in Djibouti, effective 23 July 2021. j.NATO Travel Order Number RC-194-0013 (N) issued by the U.S. ArmyInstallation Management Command, Headquarters, U.S. Army Garrison, Fort Bliss, dated 13 July 2021, certified the applicant as a member under the NATO Status of Forces Agreement from 23 July 2021 to 5 May 2022. k.HRC Memorandum, Subject: Notification of Eligibility for Retired Pay at Non-Regular Retirement (20-Year Letter), dated 2 February 2022, shows the applicant completed the required years of qualifying Reserve service and is eligible for retired pay upon application at age 60. l.DD Form 214, ending on 3 August 2022, shows the applicant was honorablyreleased from active duty. (1)Item 12a (Date Entered Active Duty This Period) – 10 July 2021. (2)Item 12c (Net Active Service This Period) – 1 year, 0 months, and 24 days. (3)Item 12d (Total Prior Active Service) – 3 years, 3 months, and 28 days. (4)Item 12f (Foreign Service) – 0 years, 11 months, and 18 days. (5)Item 13 (Decorations, Medals, Badges, Citations, and Campaign RibbonsAwarded or Authorized) – •Meritorious Service Medal (2nd Award) •Army Commendation Medal (4th Award) •Joint Service Achievement Medal •Army Achievement Medal (4th Award) •Joint Meritorious Unit Award •Army Good Conduct Medal •Army Reserve Component Achievement Medal (4th Award) •National Defense Service Medal with one bronze service star •Global War on Terrorism Expeditionary Medal •Global War on Terrorism Service Medal •Afghanistan Campaign Medal with one bronze service star •Army Service Ribbon •Overseas Service Ribbon •Army Reserve Components Overseas Training Ribbon•Armed Forces Reserve Medal with "M" Device •Military Outstanding Volunteer Service Medal •NATO Medal •Combat Infantryman Badge •Parachutist Badge •Air Assault Badge (6)Item 18 (Remarks) – Service in Somalia from 23 July 2021 to 5 May 2022.Service in Djibouti from 6 May 2022 to 10 July 2022. m.The available evidence is void of orders awarding the applicant the Purple Heart. 3.The applicant provides: a.Self-authored statement dated 28 February 2021, in which the applicant stated in accordance with AR 600-8-22, Section 2-8, his narrative describes the qualifying incident and the conditions in which he was injured by actions caused directly by the enemy. Section 2-8c states that 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. Section 2-8h states that it is not intended that such a strict interpretation of the requirement for the wound to be caused by direct result of hostile action be taken that it would preclude the award being made to deserving personnel. Cases such as an individual injured as a result of a vehicular accident caused by enemy fire, the decision will be made in favor of the individual and the award will be made. (1) On 21 November 2011, while operating with Cavalry Troop Fury near the village of Ghariban, Afghanistan, enemy forces attacked their strongpoint from multiple sides. They took defensive positions and returned fire. While engaging the enemy with small arms fire, he and other Soldiers moved along irregular sides and tops of dirt and rock filled Hesco containers surrounding the strongpoint. While evading fire to gain a superior fighting position, he impacted hard against a Hesco barrier which injured his body and right knee. (2) Once the strongpoint was secure, he began a ground convoy to Kandahar Airfield clinic the next day. Initial treatment was provided by MAJ , MD and annotated on SF 600. This treatment was followed by months of physical therapy at Kandahar Airfield clinic and his Forward Operating Base (FOB) clinic in southern Afghanistan. His right knee pain persisted through his redeployment which is annotated on DD Form 2697. (3) In 2015, the VA granted him a 10 percent rating based on Lieutenant Commander , MD diagnosis of patellofemoral pathology and associated symptoms. In 2018, he had surgery as annotated by Orthopedic Surgeon , MD. In accordance with AR 600-8-22, paragraph 2-8c(2), his physical therapy in Afghanistan and surgery years later indicates the severity of his injuries "was such that it would have required treatment by a medical officer if one had been available to provide treatment "at Strongpoint Ghariban. If not for the direct fire and engagement with the enemy, his injuries would not have occurred. b. Orders Number A-08-117261 issued by HRC, dated 10 August 2011, ordered the applicant to active duty for operational support in Kandahar, Afghanistan, effective 18 September 2011. The applicant's records are void of these orders. c. One photo, dated 21 November 2011, shows a Hesco barrier perimeter of Strongpoint Ghariban. d. SF 600 dated 26 November 2011, showing the applicant was treated at Kandahar Airfield clinic by MAJ , Medical Corps for joint pain, localized in the knee and a history of a right knee traumatic injury on 21 November 2011. e. SF 600 dated 19 December 2011, showing the applicant was treated at Kandahar Airfield clinic by for joint pain, localized in the knee with significant quad atrophy in the right quad caused by a battle injury. The applicant twisted his knee while maneuvering on a wall during a conflict with insurgents. f. SF 600 dated 1 February 2012, showing the applicant was treated at the FOB Pasab clinic by MAJ , Physical Therapist, for compression arthralgia of the right knee, patella, tibia and fibula; cervical radiculopathy at C6; and lower back pain. He was diagnosed with chronic right knee pain and weakness. g. SF 600 dated 10 April 2012, showing the applicant was treated at Martin Army Community Hospital by , Physician Assistant, for compression arthralgia of the right knee, patella, tibia and fibula; internal derangement of the knee; knee joint pain; upper back pain; cervical radiculopathy at C6 nerve root; and lower back pain. He was referred for an orthopedic consult and a Magnetic Resonance Imaging (MRI) of his spine and right knee. h. DD Form 2697 dated 10 April 2012, in which the applicant provided the following assessment: (1) Item 10 (Compared to my last medical assessment/physical examination, my overall health is) – Worse for back pain/right knee pain. (2) Item 11 (Since your last medical assessment/physical examination, have you had any illnesses or injuries that caused you to miss duty for longer than 3 days?) – Yes for back pain/right knee pain/left hip. (3)Item 12 (Since your last medical assessment/physical examination, have youbeen seen by or been treated by a health care provider, admitted to a hospital, or had surgery?) Yes, Kandahar Role 3 (4)Item 15 (Do you have any conditions which currently limited your ability towork in your primary military specialty or require geographic or assignment limitations?) –Yes. (5)Item 18 (At the present time, do you intend to seek VA disability?) – Yes. i.VA Diagnostic Report dated 30 July 2012, showing the applicant had an MRI with contrast to rule out a superimposed neoplasm due to a left frontal lobe lesion. An encephalomalacia in the anterior left frontal lobe was identified and noted as unchanged from a comparison MRI performed on 16 July 2012. A pulsation artifact was noted, most prominently in the posterior fossa secondary to venous flow in the sigmoid sinuses. j. Statement of , MD, dated 16 September 2019, in which he stated on21 November 2021, the applicant sustained injuries near the village of Ghariban, Afghanistan. He received medical treatment after several days of ground transport to Kandahar Airfield hospital. Since his injury, he sought medical care for his spine and right knee from the VA and civilian medical professionals. While at Stanford Medical Center, he treated the applicant along with other orthopedic and pain management specialists. In November 2018, the applicant underwent a subchondroplasty procedure, which targets and fills bone defects with Accufill Bone Substitute Material utilizing an arthroscopic percutaneous approach. k. Reserve Component Manpower System Automated Record Brief, dated16 November 2020, shows in: (1) Section I (Overseas Assignment Information) – Service in Afghanistan7 months ending on 14 April 2012. (2)Section IX (Awards and Decorations) – •Meritorious Service Medal •Army Commendation Medal (3rd Award) •Joint Service Achievement Medal •Army Achievement Medal (4th Award) •Army Good Conduct Medal •National Defense Service Medal with two bronze service stars •Military Outstanding Volunteer Service Medal •NATO Medal •Joint Meritorious Unit Award •Army Service Ribbon •Overseas Service Ribbon •Army Reserve Components Overseas Training Ribbon •Combat Infantryman Badge •Parachutist Badge •Air Assault Badge •Armed Forces Reserve Medal with "M" Device •Global War on Terrorism Service Medal •Department of State Meritorious Honor Award •Afghanistan Campaign Medal with one bronze service star l. Officer Record Brief dated 16 November 2020, showing the same information as the Reserve Component Manpower System Automated Record Brief. m. DA Form 2823 authored by MAJ , dated 22 February 2021, in which he stated that he was the Platoon Leader for Fury Platoon; which fell under Higher Headquarters Troop, 4th Squadron, 4th Cavalry Regiment, 1st Heavy Brigade Combat Team, 1st Infantry Division. His unit often operated out of a strongpoint near Ghariban, Zharay District, Kandahar Province, Afghanistan. Due to the proximity to a high concentration of Taliban fighters in Zharay, the strongpoint was periodically attacked by enemy forces. On 21 November 2011, Strongpoint Ghariban was attacked from multiple sides by enemy forces. Members of his platoon and the applicant quickly took position to defend the strongpoint and return fire. While engaging the enemy with small-arms fire, the applicant, other members of his platoon and himself ascended and traversed along the uneven tops of Hesco barriers – which is a rock and dirt-filled wire mesh container – to evade fire and gain superior fighting positions. While traversing the Hesco barrier, the applicant sustained an injury when he impacted against the rock-hard vertical face of the Hesco barrier. His injuries were directly due to enemy fire and the urgency to defend the strongpoint's perimeter. n. DA Form 2823 authored by CSM , dated 24 February 2021, in which he corroborated the same information provided by MAJ . o. HRC Memorandum, Subject: Award of the Purple Heart, dated 23 July 2021, wherein the request for award of the Purple Heart for injuries received while deployed in support of Operating Enduring Freedom was denied. It was determined that his recommendation did not meet the statutory guidance outlined in AR 600-8-22, paragraph 2-8g.c. which states 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. He was instructed to appeal to the Army Board for Correction of Military Records (ABCMR). p. Self-authored statement, undated, in which the applicant responded to HRC'sdenial memorandum, dated 23 July 2021. Paragraph 2 states that the rationale for the denial was that his injury was not of such severity to require treatment and not eligible for the Purple Heart. Further, HRC's correspondence, dated 19 August, states there is no doubt that his right knee pain was related to combat action on 22 November 2011, which confirms that HRC sees a clear nexus between his injury and enemy engagement. To address the concern over severity, the following descriptions of his knee injury and head injury were provided for consideration. (1) Subchondral Bone Fracture (knee injury) HRC's correspondence, dated19 August, cites the specific regulation used to justify denial of award for his knee injury. The correspondence referenced AR 600-8-22, paragraph 2-8g(18) states that soft tissue injures; including but not limited to ligament, tendon or muscle strains or sprains; are injuries which do not justify award of the Purple Heart. It is recognized that many combat-related injuries are minor or temporary and does not meet eligibility consideration. His injury was not to soft tissue, but rather to the bone. The subchondral bone, located under the patella and cartilage, is not the meniscus, ligament or tendon. , MD notes that x-rays taken within a month of his redeployment showed a defect in the articular surface of the patella indicating that an impact fractured the subchondral bone and the cause of his knee pathology. His documented treatment over the last decade shows that the severity of his knee injury was far greater than short-term discomforts of a muscle strain or sprain. In addition to physical therapy during and after deployment, , MD performed an arthroscopic knee surgery which included a subchondroplasty procedure as described in a letter from Stanford Medicine. (2) TBI (head injury) the following is provided in accordance with MILPER Message 11-125. During enemy engagement, he sustained a blow to the head which was followed by disorientation. This may explain balance difficulties leading to his knee injury. During the remaining 4 months of his deployment, after his head injury, he was unaware that his symptoms were the result of mild TBI. Shortly after redeployment n July 2012, two MRIs by the VA revealed an encephalomalacia in the anterior left frontal lobe. Based on the MRI reports finding an intracranial lesion, he was referred to a Neurologist. Reference the 2014 report by , MD, who treated his VA-rated head injury. q. Statement of , MD, undated, in which he stated that in his consults with the applicant over a 2 year period, he consistently focused on treatment, but did not find satisfaction with the written copy of cognitive compensatory strategies provided during his post-evaluation consult on 21 June 2012. The applicant was admitted into a war veteran's research program at the Etkin Lab, Stanford Medical Center, which has a partnership with the Palo Alto VA hospital in the treatment for TBI. (1) Dr. reported that his evaluated indicated significant deficits in learning and memory. A comparison of objective test scores indicated interval decline in certain cognitive abilities. (2) Misdiagnosis is problematic since TBI and posttraumatic stress disorder(PTSD) is treated differently. Based on review of VA and University , neurologist reports, the applicant's impairment most closely aligned with remnants of TBI. Diagnostic Code 8045 (Residual of TBI) states that 38 Code of Federal Regulations (CFR), Section 4.124a (Schedule of ratings - neurological conditions and convulsive disorders) requires evaluation of emotional and behavioral dysfunction under 38 CFR 4.130 (Schedule of ratings-mental disorders) when there is a diagnosis of a mental disorder. When there is no diagnosis of a mental disorder, evaluate emotional/ and behavioral symptoms under the criteria in the table titled "Evaluation of Cognitive Impairment and Other Residuals of TBI Not Otherwise Classified." (3) 38 Code of Federal Regulations 4.124a, Diagnostic Code 8045 lists ten facets of cognitive impairment and other residuals of TBI not otherwise classified. In the applicant's case, his highest facet is memory, attention, concentration, and executive functions. Based on objective neurologic test results and examination findings, the applicant's level of impairment is Level 3 (moderate). (4) As a licensed, board certified adult Neurologist, it is his medical opinion that the applicant's present facets of cognitive impairment and other residuals of TBI are the direct result of injuries occurred while deployed to southern Afghanistan, near Kandahar. r. Statement of , MD, undated, in which he stated that it is well documented in the applicant's official military medical records thar he injured his right knee on 21 November 2011 while deployed in Afghanistan. He received initial treatment at Kandahar Airfield clinic on 26 November 2011 by , MD. The applicant remained in Afghanistan and performed physical therapy at the U.S. hospital in Kandahar and his unit's FOB medical clinic in southern Afghanistan until the completion of his combat tour of duty. Reference multiple medical reports by ; in which she noted significant quad atrophy in right quad on 19 December 2011 and reports by , Physician Assistant. (1) On 25 April 2012, the applicant had an x-ray showing a defect in the articular surface of the patella. On 25 May 2012, this was substantiated by an MRI of his right knee. The applicant is a classic example from start to finish of an injury to the joint surface of the patellofemoral joint. The typical injury to the patellofemoral joint involves a direct blow to the front of the knee joint, which is how the applicant injured his right knee. He also describes classic symptoms of pain associated with the forementioned activities. (2)In his medical opinion, as a board-certified Orthopedic Surgeon, theapplicant's right knee injury that occurred while deployed in southern Afghanistan is the direct causation of his present patellofemoral pathology and associated symptoms. BOARD DISCUSSION: 1.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 equitabledecision. As a result, a personal appearance hearing is not necessary to serve theinterest of equity and justice in this case. 2.After reviewing the application, all supporting documents, and the evidence foundwithin the military record, the Board found that relief was not warranted. The applicant'scontentions, the military record, and regulatory guidance were carefully considered.Based upon a preponderance of the evidence, the Board determined there is insufficientevidence that shows he is entitled to the Purple Heart under regulatory guidance andremoving of HRC’s denial is not warranted. 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. Microsoft Office Signature Line... 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 states the Purple Heart is awarded for a wound sustainedwhile in action against an enemy or as a result of hostile action. Substantiatingevidence must be provided to verify that the wound was the result of hostile action, thewound must have required treatment by medical personnel, and the medical treatmentmust have been made a matter of official record. a.When contemplating an award of the Purple Heart the key issue commandersmust 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 sole justification for award. b.An example of an enemy-related injury that clearly justifies award of the PurpleHeart is an injury caused by enemy bullet, shrapnel, or other projectile created by enemy action. c.Examples of injuries or wounds which clearly do not justify award of the Purpleare as follows: •Abrasions and lacerations (unless of a severity to be incapacitating) •Bruises (unless caused by direct impact of the enemy weapon and severeenough to require treatment by a medical officer) •Soft tissues injuries (for example, ligament, tendon, or muscle strains,sprains, and so forth) d.It is not intended that such a strict interpretation of the requirement for the woundor injury to be caused by direct result of hostile action be taken that it would preclude the award being made to deserving personnel. Commanders must also take into consideration the circumstances surrounding an injury, even if it appears to meet the criteria. 2.MILPER Message Number 11-125, issued by the U.S. Army Human ResourcesCommand, dated 29 April 2011, stated the Secretary of the Army had approved ArmyDirective 2011-07 (Awarding the Purple Heart). The directive provides clarifyingguidance to ensure the uniform application of advancements in medical knowledge andtreatment protocols when considering recommendations for award of the Purple Heartfor concussions (including mild traumatic brain and concussive injuries that do not resultin a loss of consciousness). The U.S. Army Human Resources Command has verifiedthat award of the Purple Heart for a TBI injury is retroactive only to 11 September 2001. 3.AR 600-8-104 (Army Military Human Resources Records Management governs thecomposition of Official Military Personnel File (OMPF) and states the performancesection is used for filing performance, commendatory, and disciplinary data. Onceplaced in the OMPF, the document becomes a permanent part of that file. Thedocument will not be removed from or moved to another part of the OMPF unlessdirected by certain agencies, to include this Board. 4.AR 15-185 (Army Board for Correction of Military Records (ABCMR)) prescribes thepolicies 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 orrequest additional evidence or opinions. It states in paragraph 2-11 that applicants donot have a right to a hearing before the ABCMR. The Director of the ABCMR may granta formal hearing whenever justice requires. //NOTHING FOLLOWS//