IN THE CASE OF: BOARD DATE: 14 February 2022 DOCKET NUMBER: AR20210007915 APPLICANT REQUESTS: entitlement to the Purple Heart (PH). APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: * DD Form 149 (Application for Correction of Military Record) * 2-page Personal Narrative * Orders R328-062 dated 23 November 2004 * Post-Deployment Health Assessment * Permanent Orders Number 175-07 dated 24 June 2005 * Spot Report dated 18 May 2005 * 2 DA Forms 2823 (Sworn Statement) * DA Form 2697 (Report of Medical Assessment) * DA Form 4187 (Personnel Action) * DD Form 214 (Certificate of Release or Discharge from Active Duty) * Computed Tomography (CT) Scan dated 20 August 2006 * DA Form 2173 (Statement of Medical Examination and Duty Status) * DA Form 7349 (Initial Medical Review – Annual Medical Certificate) (Back) * 2 Letters, U.S. Army Human Resources Command (AHRC) * Orders C-09-911900 dated 23 September 2019 * Department of Veterans Affairs (VA) Letter, dated 22 July 2020 * Self-Entered Personnel Health Information (PHI) * Officer Record Brief FACTS: 1. The applicant states, in effect: a. On 18 May 2005, he was wounded in action, suffering a head concussion/mild- traumatic brain injury (mTBI), punctured ear drum, and 10 percent permanent loss of hearing while conducting combat operations in Al Mahmudiyah, Iraq. His forward operating base (FOB), was attacked by enemy insurgents' rockets. He submitted two formal request packages for the PH to AHRC, one on 6 August 2020, and the second on 1 September 2020, both of which were denied. b. During his original submission for the PH in 2005, by the 3rd Infantry Division, the Army did not consider concussions, TBI, or a punctured ear drum as grounds for a PH and the award was denied. During the final review of his personal file for retirement in July 2020, he was asked why he didn't have a PH in his records from the insurgents’ rocket attack on 18 May 2005, for which he was awarded the Combat Action Badge (CAB) and suffered a concussion. The Personal Officer explained to him when the rules had changed and urged him to submit for a PH. On 17 March 2011, the Army clarified that "concussion injuries caused as a result of enemy generated explosions" were grounds for awarding the PH. He gathered the paperwork in his possession for the submission and was able to identify the following medical documentation related to his concussion. On 20 August 2006, he used his personal insurance to have a civilian CT scan of his head because he had continuous headaches through the year after returning from his deployment in 2005. 2. Evidence shows he served in Iraq from 4 December 2004 to 29 June 2005. Effective 1 July 2020, he was released from the U.S. Army Reserve Control Group (Reinforcements) and assigned to the Retired Reserve in the rank/grade of colonel/O-6 due to completion of the maximum authorized years of service. 3. On 6 August 2020, the AHRC disapproved his request for entitlement to the PH for injuries received while deployed in support of Operation Iraqi Freedom. The AHRC official stated, "according to your personal narrative, you recall having been given ibuprofen by a medic for a headache following this incident. 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. Moreover, Army Regulation 600-8-22 (Military Awards) specifically prohibits award of the PH on the basis of hearing loss and tinnitus (e.g., ringing in the ears, ruptured tympanic membrane). Without significant evidence to the contrary, we will be unable to verify you meet the regulatory criteria for award of the PH." 4. On 26 August 2020, the AHRC responded to his inquiry by stating that they remained unable to authorized the PH. As stated in their previous response dated 6 August 2020, the PH cannot be awarded on the basis of hearing loss and tinnitus (i.e., ringing in the ears, ruptured tympanic membrane). Further, there is no available military medical documentation from the time of incident reflecting diagnosis of and treatment for a qualifying concussion or TBI. In the absence of such documentation, they were unable to verify he met the regulatory criteria for award of the PH. 5. The applicant provides a/an: a. Personal narrative which states, in effect, he was wounded in action on 18 May 2005. The SPOT report from the incident confirms he was a casualty in a rocket attack from a 107mm rocket. The first rocket impacted and knocked him to the ground, whereupon he blacked out. When he awoke, a Soldier had grabbed him to go to the bunker. Following the all clear, they made their way to the Civilian Military Operation Center. He was hearing bells and ringing in his ears and had difficulty hearing. He was disoriented and dizzy. Blood was coming out of one of his ears but he did not go see the medic immediately. Later in the day he went to the FOB medic for a persistent headache and disorientation and was given eight Motrin. b. He did not have his head or ears checked at the time. He was the company commander and doubted a medic could address his hearing issue or concussion; a doctor was a 30-minute gun truck convoy away and, in retrospect, he was not thinking clearly and had more pressing responsibilities. At the time he did not understand the signs/symptoms of a TBI or the seriousness or a concussion. His headaches persisted throughout the remainder of his deployment, accompanied by hearing loss, ringing in his ears, insomnia, memory problems, irritability, and aggression. When he returned from deployment he was evaluated by Army doctors who confirmed he suffered a concussion and had permanent hearing loss due to a punctured eardrum. He continued to have nausea, chronic headaches, dizziness, lightheadedness, difficulty remembering, ringing of the ears, sleep issues, irritability, and numbness and tingling in his feet requiring further medical evaluation. c. Post-Deployment Health Assessment initiated on 5 May 2005, and completed on 8 June 2005, in which he noted concerns with constant diarrhea, nausea, aches and pains, hearing loss, and concussion. He was referred to Audiology, Neurology, and a General Internist. d. Permanent Orders Number 175-07 dated 24 June 2005, awarded him the CAB for actively engaging or being engaged by the enemy on 18 May 2005. e. SPOT report dated 18 May 2005, which notes two casualties, one being the applicant. f. Sworn statement dated 6 June 2005, from an officer who notes the applicant was very close to the location where the rockets impacted. She later noticed the applicant was disoriented and had a hard time hearing. She told him to see the medic. g. Sworn statement dated 6 June 2005, from a junior noncommissioned officer who notes he heard the whizz of a rocket go over his head and impact into the maintenance area of the FOB. He saw the applicant and another Soldier run for the nearest bunker after the rocket impacted. He ran to the closest bunker and did not see anything else. h. DD Form 2697 dated 30 June 2005, in which the applicant notes his overall health was worse since his last assessment due to a concussion sustained on 18 May 2005. His ears have been ringing on and off since 18 May 2005. i. DA Form 4187 dated 12 July 2005, which appears to approve award of the PH for wounds received on 18 May 2005. j. CT Head Scan information performed on 20 August 2006, which found the lateral, third and fourth ventricles were abnormal in size. Septum pellucidum was not displaced from cranial midline. No abnormal intracerebral or extracerebral fluid collection identified. Mastoid air cells and visualized paranasal sinuses appeared well pneumatized. Concluded a negative study. k. Partially completed DA Form 2173 dated 18 September 2006, in which the applicant stated he has post-traumatic stress disorder symptoms, diarrhea, irritability, memory problems and exposure concerns. It is further noted the applicant required additional medical evaluation. l. Back page of DA Form 7349-R dated 3 July 2007, in which a physician noted hearing loss, insomnia and a P2 profile. Hearing loss due to a punctured eardrum, previous bleeding from May 2005. The applicant was found fit, good to go. m. VA letter dated 22 July 2020, which notes a 10 percent combined service- connected disability and a self-entered PHI acknowledging problems with gastroesophageal reflux disorder, hearing loss, and tinnitus. 5. By regulation, the PH 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 medical treatment * the medical treatment must have been made a matter of official record BOARD DISCUSSION: After reviewing the application, all supporting documents and the evidence found within the military record, the Board determined that relief was not warranted. The Board carefully considered the applicant’s contentions, military record, and regulatory guidance on the award of the Purple Heart. The Board considered the sworn statements and the HRC response. Based on the preponderance of evidence available for review, the Board determined the evidence presented insufficient to warrant a recommendation for 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. Army Regulation 600-8-22 (Military Awards), prescribes policies and procedures for military awards and decorations, to include the PH. 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 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. When contemplating an award of this decoration, 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 the award. c. Examples of enemy-related injuries which clearly justify award of the PH 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 injury 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 2. Army Regulation 15-185 prescribes the policies and procedures for correction of military records by the Secretary of the Army, acting through the ABCMR. 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) AR20210007915 1 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1