IN THE CASE OF: BOARD DATE: 4 March 2022 DOCKET NUMBER: AR20210014041 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) * Self-Authored Statement * Extract, Army Regulation 600-8-22 (Military Awards) * Letter, U.S. Army Human Resources Command (AHRC), dated 18 February 2020 * Letter, AHRC Advisory, dated 23 December 2021 * Applicant Response to AHRC Advisory, dated 12 January 2022 * DD Form 214 (Certificate of Release or Discharge from Active Duty) * Orders: DR-227-0115, dated 15 August 2013 * Order Number: DR-227-0115 (N), dated 15 August 2013 * 3-Page Table of Contents * Medical Record, dated 28 July 2013, page 191 * Medical Record, dated 26 July 2013, page 194 * Medical Record, dated 27 July 2013, page 196 * DA Form 2823 (Sworn Statement) * Enlisted Record Brief (ERB) FACTS: 1. The applicant states, in effect: a. In accordance with the applicable regulation, he is entitled to the PH due to receiving a concussion from a rocket attack while deployed to Afghanistan. He was diagnosed with a concussion/traumatic brain injury (TBI) and treatment was performed by a qualifying medical officer. b. On 26 July 2013, at approximately 0930 hours on Forward Operating Base Arian, Afghanistan, insurgents attacked his position with indirect fire using 107mm rockets. The advanced warning alarm sounded so he ran to the nearest bunker for shelter. The first rocket hit on the west side of the bunker approximately 5 meters away. After the explosion he heard a fire mission come down from fire direction control. As the gunnery sergeant, he advanced toward the M119A2 where 1st Section "Hot Gun" was preparing to begin a counter fire mission. 1st Section loaded a round, then the incoming alarm sounded again. c. He was just outside an open face bunker when a rocket hit approximately 8-10 meters in front of him. He remembers seeing the blast and feeling the shock from it. He remembers rocks coming toward his face in slow motion in what seemed to be minutes. He remembers seeing the rocks fall all at once in real time. Realizing he was still alive, he began to pat himself down for wet spots. He believes the alarm sounded again and another rocket hit outside near them but he is unsure how close it was. d. He was dazed and somewhat confused. He remembers the pressure he felt, the headache, and his ears continuously ringing on and off. After the all clear, he was full of adrenaline as he surveyed the damage pacing and smoking one cigarette after another. After a few hours he was told to get checked at the aid station. An overall screening for TBI was positive and he was given meds and told to rest. He performed a follow up the next day with the physician's assistant (PA). The PA submitted paperwork for a PH to his chain of command and the brigade surgeon; however, he never received the award. 2. Having 4 years, 11 months and 9 days of total prior active service, the applicant enlisted in the Regular Army on 23 August 2007. Evidence shows he served in the designated imminent danger pay areas of Iraq from 28 February 2010 to 5 February 2011 and Afghanistan from 12 January to 5 October 2013. 3. The applicant provides the following documents: a. page 194, Medical Record, dated 26 July 2013, which shows a primary diagnosis of a concussion without LOC. Note written on 27 July 2013, states the history provided by the applicant noted he was brought to the aid station at 1300 hours and a full neurological and MACE was performed. At the time he reported tinnitus, dizziness, and pressure on the right side of his head. MACE was 28/Red/B. b. page 196, Medical Record, written on 27 July 2013, notes exam consistent with mTBI, mandatory 24-hour rest period. Exam consistent with headache from mTBI/concussion. Overall unremarkable gross neurological exam. Prescription for acetaminophen. c. page 191, Medical Record, written on 28 July 2013, which notes the applicant was seen for a 24-hour reevaluation for TBI which occurred on 26 July 2013. MACE today is 28/Green/A and the applicant reported that he was asymptomatic. MACE rating of 30/Green/A also present. Notes history of concussion/TBI, highest level of severity-mild. Further notes PH paperwork was submitted to applicant's chain of command and brigade surgeon. Released without limitations. d. The applicant provides a DA Form 2823, from Staff Sergeant dated 29 September 2013, who essentially corroborates the applicant's statements pertaining to a rocket attack on 26 July 2013, and notes the applicant showed signs of TBI while at the aid station. 4. On 8 November 2018, he was honorably discharged for disability with severance pay, noncombat related. 5. On 18 February 2020, the AHRC disapproved his request for entitlement to the PH for injuries received while deployed to Afghanistan. The AHRC official stated, [the applicant] was diagnosed with a concussion with no loss of consciousness (LOC), for which he was prescribed acetaminophen and given 24-hour bed rest. When considering award of the PH for a mild TBI (mTBI) or concussion that did not result in the LOC, 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. 6. On 23 December 2021, the Agency received a comprehensive advisory opinion regarding the applicant's request for the PH. The Chief, Awards and Decorations Branch opined, ''based upon review of the documentation provided and previously furnished to us, we recommend [the applicant's] application for award of the PH not be granted administrative relief. Per available clinical records (copies enclosed), [the applicant] was evaluated and given a mandatory 24-hour rest period for a diagnosed concussion (with no LOC) following a rocket attack on 26 July 2013. The following day he was prescribed acetaminophen. In accordance with Army Regulation 600-8-22, 2-8g(13), injuries that do not justify eligibility for the PH include mTBI or concussions that do not 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. Moreover, Paragraph 2-8, j(2) states that 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. On 28 July 2013, [the applicant] was released without limitations after being seen for a follow-up examination. Accordingly, we are unable to verify [the applicant] meets the regulatory criteria for award of the PH.'' 7. On 12 January 2022, the applicant responded to the advisory opinion rendered by the AHRC. He claims the opinion states he does not qualify because of the 24-hour restriction from duty the medical provider wrote on his report after the first time he saw him. The first Military Acute Concussion Evaluation (MACE) was 28/Green/B on 26 July 2013. On 27 July 2013 he was given another MACE and it was 28/Red/B. He was sent back for another 24 hours of no duty. On 28 July 2013, he was given another MACE and it was 30/Green/A. This is documented on his medical records and he was under a medical officer care from 1300 hours on 26 July - 1645 hours on 28 July 2013. He took a MACE each of those days. AHRC thinks he was given down time via command policy; however, his records clearly show he was not. AHRC only saw the 24-hour restriction and not the whole medical picture which lasted well over the 48 hours. 8. The applicant provides 3 pages of a Table of Contents pertaining to his Medical Record, ERB, deployment orders, and an extract of Army Regulation 600-8-22, in which the applicant highlights to qualify as medical treatment, rest period must have been directed by a medical officer or medical professional after diagnosis of an injury such as diagnosis of concussion or mTBI. 9. 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 LOC; 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: 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. Based upon a preponderance of the evidence, the Board determined there is insufficient evidence that shows the applicant is entitled to the Purple Heart for a concussion and/or TBI. The Board agreed the evidence does not show a loss of consciousness nor restriction from all duties for 48 hours or more immediately after the event. 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 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 mTBI 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 LOC). 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 computerized axial tomography (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) AR20210014041 1 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1