IN THE CASE OF: BOARD DATE: 15 June 2022 DOCKET NUMBER: AR20210013645 APPLICANT REQUESTS: reversal of the denial decision by the Awards and Decorations Branch at the U.S. Army Human Resources Command (HRC) to deny him award of the Purple Heart. He also requests a personal appearance before the Board APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: * DD Form 149 (Application for Correction of Military Record) * Temporary Change of Station (TCS) Orders * NATO Travel Orders * Army Achievement Medal * Chronological Record of Medical Care * Statement * 3 x Medical Documents * 4 x Sworn Statements * Recommendation for approval of Purple Heart * narrative to Accompany the Award of Purple Heart * Pictures * Letter from Human Resources Command (HRC) * Memorandum for the Board FACTS: 1. The applicant did not file within the three-year time frame provided in Title 10, United States 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, in effect: a. When his Purple Heart packet was submitted, the packet did not include the surgical records that were needed for his left arm. He vigorously sought medical treatment for his injuries and was told by the medical provider there was nothing they could do to fix his medical condition. b. He has lost full mobility in his arm and he will continue to require medical treatment for the rest of his life. His injury occurred, while in direct contact with the enemy. c. As a junior noncommissioned officer (NCO) at the time, he was being ignored and neglected, when seeking proper medical attention by multiple providers. d. In November 2020, his brigade command sergeant major (CSM) inquired about his arm and asked why he never received a Purple Heart. The applicant stated he didn't know he would. After the CSM and brigade surgeon reviewed the applicant's records, his Purple Heart packet was submitted. 3. The applicant provides the following documents for the Board's consideration: a. TCS orders published on 24 June 2009, which show he had a reporting date to Operation Enduring Freedom of 9 August 2009 for 365 days. He included NATO Travel orders for the same time period. b. An Army Achievement Medal certificate, awarding him the Army Achievement Medal for exceptional achievement, while deployed in support of Operation Enduring Freedom from 13 July 2010 to 14 July 201, awarded on 3 August 2010. c. A Chronological Record of Medical Care, which shows he was seen on multiple occasions for left elbow pain with locking symptoms. On 11 January 2019, he had surgery on his left elbow. d. A document entitled "Closing the Breach: Signal Troopers Fight and Communicate When it Counts", which states in pertinent part there was a blast on their base, in Afghanistan, near a tent holding eleven Soldiers. The applicant and another Soldier oriented to the rear of the base in case the attackers had penetrated deeper into the command. There was no information regarding injuries to the Soldiers, at this time. e. Medical documents, which show the applicant was seen on: * 18 December 2018, for pain in his left elbow, his diagnosis was loose body in left elbow * 19 February 2019 for left elbow contracture release, his diagnosis was contracture left elbow, loose body in left elbow, post-traumatic osteoarthritis left elbow * 26 March 2019, after left elbow contracture release with anterior/posterior capsular release f. A sworn statement from a Chief Warrant Officer Two, dated, 23 September 2020, which states in pertinent part, on the night of 13 July 2010, their Combat Out Post (COP) was attacked. When the attack occurred, the applicant was located by the S6 tent, which was in close proximity to the blast. The applicant was required to conduct a counterattack on the enemy forces. He was near a building that was struck by an RPG, which knocked the applicant and another Soldier several feet back and onto the ground. The applicant braced his fall with his left arm bearing the force of the blast and the other Soldier's weight. Due to the circumstances and adrenaline the applicant' didn't think anything of it and kept fighting. After the firefight, the applicant continued to mention the immense pain in his left elbow but due to the mission he continued to rebuild and pull security not seeking medical attention. After the event, the author personally witnessed the applicant consistently lose mobility in his arm causing it to lock into place. The applicant was denied airborne school training because of the loss of 15 percent mobility in his arm. g. A sworn statement from a first sergeant (1SG), dated 18 November 2020, which states reiterates the attack on their COP, and states in pertinent part, after the attack and the COP was secured, the applicant continued to say he must have fallen pretty hard because he felt pain in his left elbow but he didn't seek medical attention due to others being missing and seriously injured. The 1SG watched watched his mobility decline. h. On 3 December 2020, the applicant completed a Personnel Action for retroactive award of the Purple Heart due to his elbow injury from his COP being attacked, while in Afghanistan. i. A sworn statement from the applicant, dated 18 December 2020, which states: (1) On the night of 13 July 2010, their Command Outpost was attached around 2145. The attack was led with an explosion and then followed by small arms fire and rocket propelled grenades (RPG). (2) He was located outside the S6 ten when he was grabbed by a lieutenant colonel (LTC) and a sergeant first class to conduct a counter-attack. They moved along the back of the tent are near a hard building. An RPG came in and hit the building knocking another Soldier and himself several feet back. (3) The other Soldier took shrapnel to his body and landed on top of the applicant. The applicant braced his fall with his left arm bearing all of his weight after the force of the blast knocked him to the ground. He did not think anything of it and kept fighting through the attack. (4) After the firefight was over, he continued to feel pain in his left elbow but did not seek medical attention. Over the next few weeks, he began to lose mobility in his army. He had to deal with the excessive pain as his elbow would lock in place over the next few months. (5) Upon his return from deployment, he continued to seek medical help but was told there was nothing the doctors could do at the time. He was also denied the ability to go to Airborne school because he lost more than 15 percent mobility in his arm. (6) After several years, he was finally able to receive proper medical attention at Fort Carson, Colorado. He had elbow surgery in January 2019, to ease the pain and improve mobility; however, he has since begun to regress and he is losing mobility. j. A sworn statement and letter of support from a LTC, Retired, dated 5 April 2021, which states in effect: (1) The LTC confirms and support, as written, the Purple Heart Narrative for the applicant. He furthermore confirms that on the night of 13 July 2010, there were numerous injuries sustained throughout the unit that may not have been recorded. These injuries were sustained due to hostile enemy actions, during an attack on the unit headquarters in Kandahar, Afghanistan. During this battle, the Medical Platoon sustained numerous injuries and one paratrooper was killed in action (KIA). Due to these injuries and the nature of the attack that severely impacted Headquarters connectivity, it is likely that adequate records were lost or not properly maintained. (2) The LTC acknowledges being present when the applicant and the other Soldier began their maneuver to support the counterattack on the enemy who had breached their compound. He was only a few feet behind the applicant when the RPG impacted the Afghan National Police Barracks. The RPGs that hit the building killed at least two Afghan National Police members and the LTC felt sparks and debris when the RPGs impacted. There is not doubt the applicant would have felt significant impact from his position in front of the LTC. (3) Finally, the LTC fully supports the efforts to award the applicant the Purple Heart for injuries sustained on 13 July 2021. The applicant's actions demonstrated the highest levels of courage and sacrifice. It is highly likely that injuries sustained, at this time, were not properly recorded. The LTC takes full responsibility for this. It is entirely reasonable and appropriate to now award the applicant the Purple Heart as a result of the injuries caused by enemy actions, while he was maneuvering to defend his unit Headquarters. k. A portion of an Award Recommendation, dated 5 May 2021, which states based on the sworn statements made by the Soldiers at the unit headquarters, the commanding general recommended approval of the Purple Heart for the applicant. The attack on the facility was more than sufficient to potentially caused bodily harm to any Soldier who was engaged by the enemy on 13 July 2010. l. A Narrative to Accompany Award of the Purple Heart for the applicant, which reiterates the attack on the COP and the actions of the applicant during the attack. It includes his actions, upon his return to Fort Bragg, to have his injury take care of and his subsequent surgery in Fort Carson, Colorado and his loss of mobility to his left elbow. m. Pictures of the COP after the enemy attack. n. A letter from HRC, dated 12 May 2021, which states, in effect: (1) The request for award of the Purple Heart to the applicant for injuries received while deployed in support of Operation Freedom's Sentinel [sic] was disapproved. (2) After a thorough review of the information provided and consultation with the US Army HRC Office of the Surgeon General, the forwarded recommendation for award of the Purple Heart does not meet the statutory guidance outlined in Army Regulation (AR) 600-8-22 (Military Awards) paragraph 2-8g.c, "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." (3) If the applicant believed the determination to be unjust, he had the right to appeal to the Board for correction of his records. o. On 4 June 2021, a captain (CPT) completed an memorandum subject: Appeal for denial of the Purple Heart for the applicant, which states in effect: (1) The applicant was denied the Purple Heart due to lack of treatment for an injury sustained in combat on 13 July 2010. He did not receive treatment immediately after the injury, but he did receive surgical treatment for the injury in 2019. These records were not included in the original packet. (2) Per sworn statements, the applicant sustained a fall on an outstretched upper extremity after and RPG exploded in front of him in combat on 13 July 2010 resulting in damage to the left elbow joint. He subsequently developed traumatic arthritis, pain, and loss of function of the left elbow joint as a result of the combat trauma. He required surgical intervention in January 2019 in an attempt to restore function and reduce pain of the left elbow. It was the CPT's professional opinion as a physician and Brigade level surgeon that the initial injury to his left elbow from combat action resulted in development of traumatic arthritis of the left elbow joint, which later required surgical treatment to restore function and reduce pain. (3) Based on sworn statements by fellow Soldiers, his battalion commander, and treatment records that were not included in the initial request for the Purple Heart, the applicant meets the criteria for the Purple Heart award outlined in AR 600-8-22, paragraph 3 (a) injury was the result of an enemy or hostile act; (b) the injury required treatment by medical officials (c) the records of medical treatment have been made a matter of official Army records. (4) The CPT asks reconsideration of awarding the Purple Heart to the applicant based on the inclusion of evidence of treatment for injuries sustained in combat. Treatment evidence as inadvertently not included in the initial packet resulting in denial of the Purple Heart award request. 4. On 24 January 2006, the applicant enlisted in the Regular Army for 4 years. He held military occupational specialty 25U (Signal System Support Specialist). 5. He had immediate reenlistments on 29 February 2008 for 6 years and on 17 October 2017 for an indefinite period of time. 6. On 24 June 2009, TCS orders were published showing the applicant was to report for duty in support of Operation Enduring Freedom for 365 days on 9 August 2009. 7. He served in Afghanistan from 28 August 2009 to 2 September 2009 and again from 12 February 2012 to 10 September 2012. 8. On 31 January 2022, the applicant was honorably retired from the Army. His DD Form 214 (Certificate of Release or Discharge from Active Duty), does not show award of the Purple Heart. 9. By regulation (AR 15-185), 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. 10. By regulation (AR 600-8-22), to be awarded the Purple Heart, the regulatory guidance 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. BOARD DISCUSSION: 1. After reviewing the application, all supporting documents, and the evidence found within the military record, the Board found that relief was warranted. The Board carefully considered the applicant's record of service, documents submitted in support of the petition and executed a comprehensive and standard review based on law, policy and regulations. Upon review of the applicant’s petition and available military records, the Board determined there was sufficient evidence to grant award of the Purple Heart. The Board agreed the statements from his battalion commander who had first hand knowledge and was there with the applicant during the hostile action is sufficient for the Board to make an fair and equitable decision. Evidence show the applicant was seen by medical doctors for injuries sustained due to hostile enemy actions, during an attack on the unit headquarters in Kandahar, Afghanistan. Based on this, the Board determined the applicant met the criteria for award of the Purple Heart and granted relief. 2. 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. BOARD VOTE: Mbr 1 Mbr 2 Mbr 3 X X X GRANT FULL RELIEF : : : GRANT PARTIAL RELIEF : : : GRANT FORMAL HEARING : : : DENY APPLICATION BOARD DETERMINATION/RECOMMENDATION: 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 amending his DD Form 214 for the period ending 31 January 2022 to show award of the Purple Heart. 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, United States 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 (ABCMR) 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, which is that what the Army did was correct. a. The ABCMR is not an investigative body and decides cases based on the evidence that is presented in the military records provided and the independent evidence submitted with the application. The applicant has the burden of proving an error or injustice by a preponderance of the evidence. b. 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. 3. Army Regulation 600-8-22 (Military Awards) prescribes Army policy, criteria, and administrative instructions concerning individual and unit military awards. a. The Purple Heart is awarded in the name of the President of the United States to any member of an Armed Force of the United States under the jurisdiction of the Secretary of the Army, who, after 5 April 1917, has been wounded, killed, or who has died or may hereafter die of wounds received, under any of the following circumstances: (1) In any action against an enemy of the United States. (2) In any action with an opposing armed force of a foreign country in which the Armed Forces of the United States are or have been engaged. (3) While serving with friendly foreign forces engaged in an armed conflict against an opposing armed force in which the United States is not a belligerent party. (4) As the result of an act of any such enemy or opposing Armed Forces. (5) As the result of an act of any hostile foreign force. (6) After 7 December 1941, pursuant to Title 10, United States Code, section 1129, as a result of friendly fire provided the member was killed or wounded in action by friendly weapon fire while directly engaged in armed conflict, other than the result of an act of an enemy of the United States, unless (in the case of a wound) the wound is the result of the willful misconduct of the member. (7) On or after 7 December 1941, to a member who is killed or dies while in captivity as a Prisoner of War under circumstances establishing eligibility for the Prisoner of War Medal, unless compelling evidence is presented that shows the member’s death was not the result of enemy action. b. 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. 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. (1) Treatment of the wound will be documented in the member’s medical and/or health record. (2) Award may be made for a wound treated by a medical professional other than a medical officer provided a medical officer includes a statement in the member’s medical record that the severity of the wound was such that it would have required treatment by a medical officer if one had been available to provide treatment. (3) 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 (to include Special Forces medics). Medics (such as combat medics – military occupational specialty 68W) are not physician extenders. (4) A medical officer is defined as a physician with officer rank. The following are medical officers: (a) An officer of the medical corps of the Army. (b) An officer of the medical corps of the U.S. Navy. (c) An officer in the U.S. Air Force designated as a medical officer in accordance with Title 10, United States Code, Section 101. c. Examples of enemy-related injuries which clearly justify award of the Purple Heart are as follows: * Injury caused by enemy bullet, shrapnel, or other projectile created by enemy action. * Injury caused by enemy emplaced trap, mine or other improvised explosive device. * Injury caused by chemical, biological, or nuclear agent released by the enemy. * Injury caused by vehicle or aircraft accident resulting from enemy fire. * Smoke inhalation injuries from enemy actions that result in burns to the respiratory tract. * Concussions (and/or mild traumatic brain injury (mTBI)) caused as a result of enemy-generated explosions that result in 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. d. Examples of injuries or wounds which clearly do not justify award of the Purple Heart are as follows: * Frostbite (excluding severe frostbite requiring hospitalization from 7 December 1941 to 22 August 1951). * Trench foot or immersion foot. * Heat stroke. * Food poisoning not caused by enemy agents. * Exposure to chemical, biological, or nuclear agents not directly released by the enemy. * Battle fatigue, neuro-psychosis and post-traumatic stress disorders. * Disease not directly caused by enemy agents. * Accidents, to include explosive, aircraft, vehicular, and other accidental wounding not related to or caused by enemy action. * Self-inflicted wounds, except when in the heat of battle and not involving gross negligence. * First degree burns. * Airborne (for example, parachute/jump) injuries not caused by enemy action. * Hearing loss and tinnitus (for example: ringing in the ears, ruptured tympanic membrane). * 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. * Abrasions or lacerations (unless of a severity requiring treatment by a medical officer). * Bruises or contusions (unless caused by direct impact of the enemy weapon and severe enough to require treatment by a medical officer). * Soft tissue injuries (for example, ligament, tendon or muscle strains, sprains, and so forth). //NOTHING FOLLOWS// ABCMR Record of Proceedings (cont) AR20210013645 1 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1