IN THE CASE OF: BOARD DATE: 8 March 2022 DOCKET NUMBER: AR20210008738 APPLICANT REQUESTS: * award of the Purple Heart * a personal appearance hearing before the Board 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) * U.S. Army Garrison Grafenwoehr, Germany, Orders GF-172-0008, 21 June 2011, with two amendments * Purple Heart Request Narrative, undated, with Standard Form 600 (Chronological Record of Medical Care), 9 October 2011 * three DA Forms 2823 (Sworn Statements), 19 February 2014, 2 July 2014, and 4 July 2014 * Text Messages (two pages) * DD Form 214 (Certificate of Release or Discharge from Active Duty) for the period ending 25 February 2015 * Brigade Surgeon, 4th Battalion, 9th Infantry Regiment, Fort Carson, CO, Memorandum (Request for Purple Heart by (Applicant)), 9 March 2015 * Chief, Awards and Decorations Branch, U.S. Army Human Resources Command (HRC), Fort Knox, KY, Letter, 18 May 2015 * Chief, Awards and Decorations Branch, HRC, Fort Knox, KY, Letter, 29 June 2015 * Email ((Applicant) Statement), 18 May 2020 * Physician Assistant, Military District of Washington, Medical Recruiting Company, Elkridge, MD, Memorandum (Statement of Mild Traumatic Brain Injury (mTBI)/ TBI Injury for (Applicant)), 9 June 2020 * Department of Veterans Affairs (VA) Summary of Benefits Letter, 16 March 2021, with Description of Issues and Ratings (page 5 only) * Military Medical Documents (approximately 90 pages) ? 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 suffered a TBI on 7 October 2011 while serving in Afghanistan. There were large gaps in his medical treatment after the incident. At the time, his unit was not processing TBI-related Purple Heart requests. He believes actions by his higher headquarters discouraging Soldiers from seeking medical treatment and the submission of his Purple Heat during his service were factors. Due to the deactivation of his unit increased the difficulties of him obtaining the necessary documents as proof. His TBI has significantly affected his mental awareness and capacity, resulting in a gap in his ability to assemble his Purple Heart request packet. 3. The applicant enlisted in the Regular Army on 21 August 2008 in the rank/grade of private first class/E-3. After completion of initial entry training, he was awarded military occupational specialty 91M (Bradley Fighting Vehicle System Maintainer). 4. Headquarters, National Training Center and Fort Irwin, Fort Irwin, CA, Orders 022-116, 22 January 2011, ordered him to proceed on a permanent change of station to the 2d Battalion, 28th Infantry Regiment, Grafenwoehr, Germany, with a reporting date of 14 April 2011, as amended. 5. U.S. Army Garrison Grafenwoehr, Grafenwoehr, Germany, Orders GF-172-0008, 21 June 2008, ordered him to deploy to Afghanistan on a temporary change of station with his unit in support of Operation Enduring Freedom (OEF) with a proceeding date of on or about 21 July 2011. 6. He was promoted to the rank/grade of sergeant/E-5 effective 1 July 2011. 7. Headquarters, 172d Brigade Combat Team, Forward Operating Base Sharana, Afghanistan, Permanent Orders 302-015, 29 October 2011, awarded him the Combat Action Badge for actions on 27 September 2011. 8. He was honorably released from active duty on 25 February 2015 and transferred to the U.S. Army Reserve Control Group (Reinforcement) by reason of completion of required active service. He completed 6 years, 6 months, and 5 days of net active service during this period. Item 18 (Remarks) of his DD Form 214 shows he served in Afghanistan from 9 July 2011 through 31 May 2012. His DD Form 214 does not show he was awarded the Purple Heart. 9. His records are void of orders awarding him the Purple Heart for injuries sustained in Afghanistan. 10. HRC Orders D-04-609035, 19 April 2016, honorably discharged him from the U.S. Army Reserve effective 19 April 2016. 11. He provided the following documents in support of his request: a. His self-authored Purple Heart request described the event on 7 October 2011 at Combat Outpost (COP) Margah, Afghanistan. He stated the COP came under an indirect attack. An alert notified the COP that a vehicle was approaching and he took up a fighting position. The vehicle was loaded with vehicle-borne improvised explosive devices (VBIEDs) and exploded approximately 50 meters away from his fighting position. (1) Afterward, everyone was cycled through the aid station for a medical evaluation by the medics that included a Military Acute Concussion Evaluation (MACE). During the examination, he had a hard time recalling the entire incident, since he had a headache. He scored a 24 on the MACE and, unfortunately, the medic who administered the test died a few months later. The physician assistant who was on site confirms he was diagnosed and treated, but the medical records were not added to his file for unknown reasons. He was given medicine for his headache and later moved to another compound to lessen the likelihood of exposure to additional explosions. Upon redeployment, he was referred to the TBI Clinic during his medical screening. A delay in scheduling caused him not to see a neurologist for over a year since the date of the explosion at the COP. He was diagnosed with post-concussion syndrome. (2) After leaving Germany and being stationed at Fort Carson, he continued to be seen by the TBI Clinic. He was given additional treatment for another 2 years until he was discharged from the Army. Since his discharge, the VA has assigned him a disability rating of 100 percent. He still receives treatment for sleep issues and chronic migraines. He believes he is entitled to award of the Purple Heart and should not be punished for not receiving the medical care he needed at the time or be held accountable for the medical documentation not being properly filed in his official records. b. His Standard Form 600 (Chronological Record of Medical Care), 9 October 2011, shows he was seen at the COP Margah Aid Station for an injury due to a war explosion. The provider is shown as. The provider notes he was evaluated as a result of being exposed to a concussion wave from a VBIED blast from roughly 200 meters away. He reported he had a headache, was given a MACE with a score of 24, and denied any complications. He had no signs or symptoms at the time with no indication of prescribed medications, was advised to follow up with his primary care manager as needed, and was released back to duty without limitations. c. Three eye-witness sworn statements from his fellow Soldiers, 19 February 2014, 2 July 2014, and 4 July 2014, confirmed the incident occurred on 7 October 2011 and the applicant was present. d. Two pages of undated text messages appear to be discussing VBIEDs and concussions. e. The memorandum (Request for Purple Heart by (Applicant)) from the Brigade Surgeon, 4th Battalion, 9th Infantry Regiment, Fort Carson, CO, 9 March 2015, noted the incident on 7 October 2011 and stated the applicant was seen by a provider on 9 October 2011. He was evaluated approximately 1 year later on 11 October 2012 by a neurologist and was diagnosed with post-concussive syndrome due to blast exposure and prescribed several pharmacotherapies for his symptoms. 12. The HRC letter to his Member of Congress, 18 March 2015, responded to his inquiry of March 16, 2015, on behalf of the applicant concerning his desire to be awarded the Purple Heart. The Chief, Awards and Decorations Branch, stated, in part: We are unable to verify [Applicant's] entitlement to the Purple Heart at this time. We acknowledge receipt of the one-page narrative, two sworn eyewitness statements, medical documentation, copies of his deployment orders, DD Form 214 (Report of Separation) and Enlisted Record Brief; however, we are unable to verify that he was diagnosed and treated for a concussion or Traumatic Brain Injury (TBI) immediately after or close to the incident of October 7, 2011. We note that he was later diagnosed and treated for post-concussion syndrome in October 2012; however, we are unable to connect this information back to the incident in question. Army Regulation 600-8-22 (Military Awards) and Army Directive 2011-07 (Awarding of the Purple Heart), Paragraph 4.b. (copy enclosed) specifically states that military medical documentation submitted in support of a Purple Heart request must be from immediately after or close to the event and describe a medical officer's diagnosis and treatment of a concussion, TBI or any other injuries caused by the enemy. If [Applicant] possesses any follow-up medical documentation from immediately after or close to the incident, he should forward copies to our office for review. Additionally, we request that the provided sworn statements specify the conditions under which [Applicant] was injured or wounded. 13. The HRC memorandum to his Member of Congress, 29 June 2015, responded to his inquiry of June 16, 2015, on behalf of the applicant concerning his desire to be awarded the Purple Heart. The Chief, Awards and Decorations Branch, stated: We are unable to verify [Applicant's] entitlement to the Purple Heart. We acknowledge his difficulties in obtaining the documentation requested in our previous correspondence dated March 18, 2015. However, we must abide by the administrative and regulatory requirements pursuant to Army Regulation 600-8-22 (Military Awards) and Army Directive 2011-07 (Awarding of the Purple Heart), in order to maintain the integrity of this award. If [Applicant] is unable to comply, we recommend that he petition the Army Board for Correction of Military Records for the Purple Heart. As the highest adjudicating authority, the Board acts on behalf of the Secretary of the Army and has final authority over matters of this nature. However, informing him of this course of action does not necessarily mean that the application will be favorably considered. The Board will adjudicate each case on its merit, and the burden of proof remains with the applicant. 14. He additionally provided the following documents in support of his request: a. An email, 18 May 2020, and a memorandum (Statement of mTBI/TBI Injury for (Applicant)), 9 June 2020, from Major a physician assistant, stated he served with the applicant at COP Margah, Afghanistan, as the senior medical officer during the incident in question. He noted the applicant was approximately 200 meters from the VBIED blast outside the main gate. The applicant initially denied being injured and continued to operate during the attack. He was evaluated 2 days after the attack and was given a MACE examination and diagnosed with an mTBI. His medic treated him with Tylenol (acetaminophen) and Motrin (ibuprofen) for headaches. At the time, their brigade chain of command did not entertain Purple Heart recommendations for mTBIs/TBIs. b. The VA letter regarding his benefits, 16 March 2021, noted he was awarded 100-percent service-connected disability and was considered totally and permanently disabled effective 26 June 2020. Page 5 of the description of issues and ratings shows his medical condition diagnosis as post-traumatic stress disorder with TBI (also claimed as anxiety disorder, insomnia, post-concussion syndrome with loss of consciousness, dizziness, and cognitive impairment).? c. Approximately 90 pages of medical documentation show his medical conditions, treatments, referrals, and medical encounters, mostly during calendar years 2012, 2013, and 2014. 15. MEDICAL REVIEW: a. The Army Review Board Agency (ARBA) Medical Advisor reviewed the supporting documents and the applicant’s military records. A review of the Armed Forces Health Longitudinal Technology Application (AHLTA), Federal Electronic Health Record (FEHR) & Health Artifacts Image Solutions (HAIMS) indicates he was first evaluated on 11 Oct 2012 for Post-Concussion Syndrome. The applicant reported to blasts (9 Oct 2011 and 8 Nov 2011). The treatment record indicates the first exposure was a VBID exploding approximately 80 meters from where he was dismounted. The second blast was from a RPG landing 20 meters. He reported felling momentarily confused and rotated out and evaluated with the MACE. He reported the 1SG who was 5 feet away had a concussion and collapsed lung. He was seen on 23 Oct 2102 by psychiatry. He reported headaches frequent awakening and memory difficulties. He reported nightmares, disrupted sleep but no flashbacks or avoidance. He was stared on Trazadone to address the sleep issues. His diagnosis was changed to Adjustment Disorder. On 13 Nov 2012, he reported improvement in headaches. On 7 Feb 2013, he reported no headaches for 1.5 months after the nerve block. b. On 21 February 2013, he reported that he had only had 2 migraines since November 2012. On 15 May 2013, he was seen by neurology due to residual symptoms follow the two blast exposures. His migraines medication was increased. On 29 May 2013, he was evaluated by a social worker. He reported increased irritability, anxiety, and being easily angered. On 29 July 2013, he reported improvement in sleep, reduction in anxiety, and a decrease in re-experiencing symptoms. On 15 August 2013, he reported no more nightmares but continued irritability. On 19 September 2013, he reported managing his anger and anxiety better. On 17 October 2013, he reported no medication for several days and a subsequent increase in symptoms. On 23 October 2013, he reported improvement in symptoms. On 31 March 2014, he started group therapy. On 8 May 2014, the applicant reported significant gains from group and marital counseling. The applicant continued in individual therapy until his discharge. On 2 December 2014, he completed his last session. He reported significant reduction in anxiety and learning strategies for dealing with marital challengers due to his wife’s OCD and other anxiety diagnoses. c. His final treating diagnosis was Generalized Anxiety Disorder. He did not have any duty limitations during his service and met retention standards at the time of his discharge. A review of JLV indicates the applicant has a service connected disability rating of 100% with 100% for PTSD and 0% for migraine headaches. His medical record indicates he was exposed to two blasts and treated for post-concussion headaches. 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 equitable decision. As a result, a personal appearance hearing is not necessary to serve the interest of equity and justice in this case. 2. 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. The Board determined that no documentation or supporting statements indicated the applicant had 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 as specified in the criteria for award of the Purple Heart. Therefore the applicant did not meet the requirements for award of the Purple Heart. 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 15-185 (Army Board for Correction of Military Records) prescribes the policies and procedures for correction of military records by the Secretary of the Army acting through the ABCMR. 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 evidence. The ABCMR may, in its discretion, hold a hearing (sometimes referred to as an evidentiary hearing or an administrative hearing) or request additional evidence or opinions. 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. 3. 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. When considering award of the Purple Heart for an mTBI or concussion that did not result in the loss of consciousness, the chain of command will ensure the diagnosed mTBI resulted in a disposition of "not fit for full duty" by a medical officer for a period of greater than 48 hours based on persistent signs, symptoms, or findings of functional impairment resulting from the concussive event. d. The following nonexclusive list provides examples of medical treatment for mTBI or concussion that meet the standard of treatment necessary for award of the PH: * referral to neurologist or neuropsychologist to treat the diagnosed mTBI or concussion * rehabilitation (such as occupational therapy, physical therapy, and so forth) to treat the mTBI or concussion * restriction from full duty for a period of greater than 48 hours due to persistent signs, symptoms, or physical finding of impaired brain function due to the mTBI or concussion e. 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. 4. Army Directive 2011-07 (Awarding the Purple Heart), 18 March 2011, provided clarifying guidance to ensure the uniform application of advancements in medical knowledge and treatment protocols when considering recommendations for award of the Purple Heart for concussions (including mTBI and concussive injuries that do not result in a loss of consciousness). The directive also revised Army Regulation 600-8-22 to reflect the clarifying guidance. a. Approval of the Purple Heart 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 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 Soldier's medical record that the extent of the wounds was such that the Soldier 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, U.S. 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 Purple Heart 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 the Purple Heart: (1) diagnosis of concussion or mild traumatic brain injury; (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 tomography or magnetic resonance imagining scan). g. The following nonexclusive list provides examples of medical treatment for concussion that meet the standard of treatment necessary for award of the Purple Heart: (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. 5. The MACE is a standardized mental status examination that is used to evaluate mTBI, or concussion, in theater. This screening tool was developed to evaluate a person with a suspected concussion and is used to identify symptoms of an mTBI. Future MACE scores can be used to determine if the patient's cognitive function has improved or worsened over time. To be most effective, all service members experiencing concussion, or mTBI, should have the MACE administered within the first 24 hours of the event in order to make certain that proper care is administered in a timely fashion. The MACE, in combination with a medical examination, can be used to help determine if it is safe for a service member to return to duty. //NOTHING FOLLOWS// ABCMR Record of Proceedings (cont) AR20210008738 1 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1