IN THE CASE OF: BOARD DATE: 2 March 2022 DOCKET NUMBER: AR20210014507 APPLICANT REQUESTS: in effect, entitlement to the Purple Heart (PH), award of the Combat Action Badge (CAB), and a personal appearance hearing before the Board. APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: * 2 DD Forms 149 (Application for Correction of Military Record) * 2 Self-Authored Statements * 2 Letters * Electronic mail (email) * DD Form 214 (Certificate of Release or Discharge from Active Duty) * DA Form 3349 (Physical Profile) * Certificate of Retirement * Orders 153-071 dated 2 June 2009 * DA Form 4836 (Oath of Extension of Enlistment or Reenlistment) * Orders A-05-404336 dated 6 May 2014 * Enlisted Record Brief * DA Form 2-1 (Personnel Qualification Record) * Rated Disabilities * 2 Sworn Statements * Military Consent for Release of Personal Records by Executive Agencies * X-ray * Naab Road Surgical Group, Assessment dated 14 October 2020 * Note dated 28 October 2020 * Department of Medical Imaging Computed Tomography (CT) Lumbar Myelogram with Contrast dated 22 October 2020 FACTS: 1. The applicant states, in effect, magnetic resonance imaging (MRI) was unable to be performed on his lower spine because North West Radiology said there was a bullet or something similar located in his hip area. He had to go back to the neurosurgeon who sent him to another surgeon to see about removing the fragment. He was subsequently sent to the hospital for a different test which identified it as a ballistic fragment. While on and off Forward Operating Base (FOB) Salerno, Afghanistan, he was constantly under attack by rockets and small arms fire which makes his injury a combat injury. 2. Evidence present in his Official Military Personnel File shows he served in the Army National Guard. He was deployed to Afghanistan for the period 5 August 2009 to 2 July 2010. On 1 December 2014, he retired honorably in the rank of staff sergeant. 3. On 3 May 2021, the U.S. Army Human Resources Command (AHRC), informed the applicant that they were unable to take favorable action concerning his desire to obtain the PH and CAB. With respect to the PH, they could not utilize the forwarded documentation, such as post-deployment medical documentation and Department of Veterans Affairs (VA) rating decisions, to justify award eligibility. They had not yet received military medical documentation confirming the diagnosis of and treatment for qualifying injuries from the time of the event. Therefore, without significant evidence to the contrary, they could not verify he met the regulatory criteria for award of the PH. 4. The AHRC further noted the particular event referenced by the applicant did not meet the regulatory guidance for award of the CAB. In accordance with Army Regulation 600-8-22 (Military Awards), paragraph 8-8, the CAB is not intended to recognize an individual for unit battle participation or deployment to a combat zone. The CAB is designed to recognize the non-infantry Soldier, whose daily mission, similar to infantry, is to close with and destroy the enemy. The retroactive request considered by their office did not demonstrate he fulfilled the basic regulatory criteria: a) Personally present and under hostile fire while performing satisfactorily in accordance with the prescribed rules of engagement; b) Performing assigned duties associated with the unit's combat mission at the time of the event. Moreover, requests for retroactive award of the CAB will not be made except where evidence of injustice is presented. Based on the limited information provided, they could not presume that an injustice had taken place with respect to his situation. They place trust in the wartime commanders to make such decisions because they have firsthand knowledge of their Soldiers on the ground. 5. The applicant provides a/an: a. Self-authored statement dated 28 January 2021, wherein he states he believes he was shot. He claims x-rays show a ballistic fragment. In early November 2009, he was in the process of cleaning the tops of the supply conex when the unit came under rocket attack. The last thing he remembers before awakening on the ground was that his pants were cut in the rear and there was a little blood. After the all clear, he went to the medical treatment facility and was told it looked like a sharp rock had cut it and he should take some muscle relaxers and was given fluids. He noticed it hurt to walk and his head was distorted but he thought it might have been from the fall. b. Sworn statement from Specialist dated 28 January 2021, who claims he remembers the rocket attack and seeing the applicant limping and holding his hip and back. He spoke with the applicant and noticed a rip/hole in the back of his pants. He advised the applicant to seek medical attention. c. Sworn statement from dated 28 January 2021, who claims from what he could remember, the applicant was on top of a conex. He yelled down that he was in the middle of something when the alert went out. He assumed the applicant got down but 5- 10 minutes later he witnessed the applicant limping and shaking his head as if dazed. The applicant complained about the back of his thigh and subsequently made his way to the medics to get checked out. d. DA Form 3349 dated 23 September 2013, which imparted upon him a permanent profile for chronic radiating neck and low back pain, blacking out, and long term opioid use. He was not a surgical candidate for neck and back issues. He no longer met retention standards and was referred to the medical evaluation board. e. 2-pages of unknown origin applying to his rated service-connected disabilities. f. X-ray. g. Assessment from a member of the Naab Road Surgical Group, dated 14 October 2020, which appears to state the applicant had a possible metal fragment imbedded in his right flank while in Afghanistan. h. Department of Medical Imaging assessment dated 22 October 2020, which shows the applicant underwent a CT lumbar myelogram with contrast. A rounded hyperdensity was noted within the right lower quadrant which appeared to represent a ballistic fragment. Impression noted as ballistic fragment approximating the posterior margin of the cecum. i. Note of unknown origin dated 28 October 2020, which appears to note a metallic fragment on CT scan. 6. 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 7. The CAB is not intended to recognize Soldiers who simply serve in a combat zone or imminent danger area. Battle participation credit alone is not sufficient; the unit must have engaged or been engaged by the enemy. The applicable regulation states, in pertinent part, that in order to qualify for the CAB, a member must be performing assigned duties in an area where hostile fire pay or imminent danger pay is authorized; he/she must be personally present and under hostile fire while performing satisfactorily in accordance with the prescribed rules of engagement; and he/she must not be assigned or attached to a unit that would qualify the Soldier for the Combat Infantryman Badge or Combat Medical Badge. 8. Army Regulation 15-185 (ABCMR) states an applicant is not entitled to a hearing before the ABCMR. Hearings may be authorized by a panel of the ABCMR or by the Director of the ABCMR. BOARD DISCUSSION: 1. After reviewing the application, all supporting documents, and the evidence found within the military record, the Board found that relief was not 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 regulation. Upon review of the applicant’s petition, available military records and HRC advisory, the Board determined there is no medical record showing the applicant received wounds caused by enemy forces that required treatment by medical personnel. The governing regulation provides that for award of the Purple Heart, evidence provided must indicate he suffered, as a result of hostile action, a concussion or TBI so disabling as 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 incident. The applicant has no medical documentation showing a loss of consciousness nor that shows he was restricted from duty for a period equaling 48 hours or more. Furthermore, the Board determined the applicant did not meet the criteria for award on the Combat Action Badge based on the insufficient evidence found in the applicant’s service records. 2. Per the regulatory guidance on awarding the Purple Heart, the applicant must provide or have in his service records substantiating evidence to verify that he was injured, 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. 3. 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 : : : 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 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 traumatic brain 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 600-8-22 state the requirements for award of the CAB are branch and military occupational specialty immaterial. Assignment to a combat arms unit or a unit organized to conduct close or offensive combat operations, or performing offensive combat operations, is not required to qualify for the CAB. However, it is not intended to award the CAB to all Soldiers who serve in a combat zone or imminent danger area. The CAB may be awarded to any Soldier. Paragraph 8-8 stated specific eligibility requirements include: a. Soldier must be performing assigned duties in an area where hostile fire pay or imminent danger pay is authorized. b. Soldier must be personally present and actively engaging or being engaged by the enemy, and performing satisfactorily in accordance with the prescribed rules of engagement. c. Soldier must not be assigned or attached to a unit that would qualify the Soldier for the Combat Infantryman Badge/Combat Medical Badge. For example, an 11B (Infantryman) assigned to Corps staff is eligible for award of the CAB. However, an 11B assigned to an infantry battalion is not eligible for award of the CAB. d. In addition to Army Soldiers, the CAB may also be awarded to members of other U.S. Armed Forces and foreign military personnel assigned to a U.S. Army unit, provided they meet the above criteria. e. Award of the CAB is authorized from 18 September 2001 to a date to be determined. Award for qualifying service in any previous conflict is not authorized. f. Second and subsequent awards of the CAB are as follows: (1) Only one CAB may be awarded during a qualifying period. (2) Second and subsequent award of the CAB will be indicated by super- imposing one and two stars respectively, centered at the top of the badge between the points of the oak wreath. g. Retroactive awards of the CAB are not authorized prior to 18 September 2001. 3. 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 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. 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) AR20210014507 1 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1