IN THE CASE OF: BOARD DATE: 14 February 2022 DOCKET NUMBER: AR20210009866 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) * Letter dated 11 February 2019 * 2 Partial Military Acute Concussion Evaluations (MACE) * 7-page Outpatient Record * 5 Statements * 2 DD Forms 689 (Individual Sick Slip) * DA Form 2173 (Statement of Medical Examination and Duty Status) * 6-page Standard Form (SF) 600 (Chronological Record of Medical Care) * Combat Action Badge (CAB) certificate * Department of Veterans Affairs (VA) Rating Decision dated 5 October 2016 FACTS: 1. The applicant states, in effect, on 30 May 2011, he was injured with a direct contact explosively formed projectile approximately 5 meters from his vehicle. When the blast occurred, he was immediately knocked unconscious. He was told he was out for over 30 minutes by his gunner and medic. He had a severe migraine, blurred vision, a ruptured eardrum, and ringing in his ears. He had bumps and bruises on his head and once back at base, he was taken to the hospital and scanned for brain injuries. He was positive for concussion, placed on quarters for more than 3 days, and pulled from missions for an extended period due to migraines, which persisted after the incident. He suffered a traumatic brain injury (TBI) and a ruptured eardrum. 2. Evidence shows the applicant enlisted in the Army National Guard (ARNG) on 4 January 2005. He served in the designated imminent danger pay area of Iraq from 11 December 2010 to 31 August 2011, and on 3 January 2013, he was honorably discharged in the rank/grade of sergeant/E-5 upon his expiration term of service. 3. In a letter to a Member of Congress, dated 11 February 2019, the Chief, Awards and Decorations Branch, U.S. Army Human Resources Command (AHRC), stated they were unable to authorize the applicant's request for the PH. The letter states, AHRC found the applicant's symptoms did not require restriction from duty for a period greater than 48 hours. Pursuant to Army Regulation 600-8-19 (Military Awards), award of the PH is not authorized for mild TBI or concussions that do not either result in extended loss of consciousness or restriction from full duty for a period of greater than 48 hours due to persistent signs, symptoms, or physical finding of impaired brain function. Accordingly, the applicant did not meet the strict regulatory criteria for the award. 4. The applicant provides a/an: a. Partial MACE evaluated 30 May 2011, in which the applicant reported a loss of consciousness (LOC) for 5-10 seconds; however, nobody else observed the LOC. b. Outpatient Record dated 31 May 2011, which states the applicant was diagnosed with an injury from a terrorist explosion blast with a secondary diagnosis of a concussion with LOC 30 minutes or less. The applicant was involved in an improvised explosive device (IED) blast. He received no penetrating injury or blast injury. He had a LOC (10 seconds), disorientation and headache with concussion. No hearing loss, MACE 24 Green B. Tylenol was given for headache. Due to LOC and progressive headache, he received a computed tomography (CT) scan which was normal. Placed on quarters/rest until symptoms resolved plus 24 hours. c. DD Form 689 dated 31 May 2011, shows the applicant was placed on quarters and told to follow up with his primary care manager 1 June 2011, and could not return to duty until symptoms resolved plus 24 hours. d. Partial MACE evaluated 1 June 2011, in which the applicant reported a LOC with nobody else observing the period of LOC. e. DD Form 689 dated 6 June 2011, noting a decrease in the hearing of his left ear. Remarked a left ear tympanic membrane rupture which was resolving. f. CAB certificate received for events on 30 May 2011. g. DA Form 2173 dated 13 June 2011, which notes the applicant was on a convoy mission on 30 May 2011, when an IED struck his vehicle. There was a LOC of less than 30 minutes. The injury was considered to have been incurred in the line of duty. h. SF 600 dated 5 September 2011, for a demobilization screening at Fort Lewis, WA. The applicant reported 5-8 headaches the past month each lasting up to 4 hours in duration. Diagnosed with Secondary Insomnia, chronic stress and headache syndromes. The symptoms of his history of TBI attributable to the blow had resolved. From a TBI perspective he was fit to deploy without limitations. It was believed his headaches may involve sleep disorder and post deployment stress with multiple factors involved. He had not missed work and the pain was manageable with over the counter medication. i. VA Rating Decision dated 5 October 2016, awarding 100 percent service connected disability effective 1 September 2016. Associated migraine headaches, TBI, and post-traumatic stress disorder. j. Undated statement from the gunner who was in the vehicle with the applicant. He claims, after he awakened from a brief period of unconsciousness, he evaluated the applicant who at the time was unconscious. No significant injuries were observed. Once conscious, the applicant was unable to answer who the current President was and he was moved to the medic truck for further observation. After two missions had passed, the gunner was cleared for further missions. The applicant was pulled from missions for an extended period of time due to his migraines. k. Statement dated 5 August 2018, from a Soldier who arrived on the scene after the IED explosion. He claims the applicant had to be physically escorted into the truck as he was very incoherent and dizzy. The applicant failed TBI examination twice, barely passing on a third attempt a week after a second failed test. The applicant was not able to go back out on mission until the beginning of August 2011. l. Statement from a retired Brigadier General dated 14 September 2020, who believes the applicant is entitled to the PH. 5. 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 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: 1. After reviewing the application, all supporting documents and the evidence found within the military record, the Board determined that relief was warranted. The Board carefully considered the applicant’s request, military record and regulatory guidance. The Board considered the applicant’s statement, record of service and documentation provided by the applicant. The Board reviewed regulatory guidance regarding the award of the Purple Heart for Traumatic Brain Injury. The Board recognized that although the applicant did not immediately receive medical attention, as the symptoms of TBI worsened, medical attention became necessary and, as result, the applicant was not allowed to participate in further missions for a period of several months. One possible outcome was to deny relief. However, the majority of the Board determined that based on the extent of the applicant’s TBI, by current standards, requirements for the award of the Purple Heart would have been met. Based on the preponderance of the documentation available for review the Board determined the evidence presented sufficient to warrant a recommendation for relief. BOARD VOTE: Mbr 1 Mbr 2 Mbr 3 :X :X : GRANT FULL RELIEF : : : GRANT PARTIAL RELIEF : : :X 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 Medal, for wounds received on 30 May 2011 from an IED blast in Iraq * adding the award of the Purple Heart Medal to item 13 (Decorations, Medals, Badges, Commendations, Citations and Campaign Ribbons Awarded or Authorized) on his DD Form 214 for the period ending 20 October 2011 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 mild (m)TBI or concussion severe enough to cause either LOC 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 LOC 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 loss of consciousness). 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 CT 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. 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 a 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 exam, can be used to help determine if it is safe for a service member to return to duty. However, this standardized testing/evaluation was not utilized by the military until 2006. 4. 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 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) AR20210009866 1 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1