IN THE CASE OF: BOARD DATE: 13 July 2022 DOCKET NUMBER: AR20210014578 APPLICANT REQUESTS: correction of his service record to reflect he was awarded the Purple Heart. APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: * DD Form 149 (Application for Correction of Military Record) * Headquarters (HQs), U.S. Army Garrison, Fort Bragg Orders Number 292-053 * Task Force Tiger Forward Support Company Memorandum for Record, Subject: Lokai Combat Logistics Patrol (CLP), Forward Support Company 27th Engineer Battalion, Indirect fire (IDF) Incident Vicinity Command Observation Post (COP) Jaghatu, dated 7 May 2010 * HQs, 372nd Engineer Brigade Permanent Orders Number 205-66 * U.S Army Human Resources Command (HRC) Permanent Orders Number 027-16 * Department of Veterans Affairs (VA) website of disability rating * DD Form 214 (Certificate of Release or Discharge from Active Duty) service ending 30 December 2016 * VA Summary of Benefits letter, dated 7 January 2017 * DA form 199 (Informal Physical Evaluation Board (PEB)) Proceedings, dated 29 January 2018 * U.S. Army Physical Disability Agency (USAPDA) Orders Number D075-08 * HRC Combat Related Special Compensation (CRSC) Claim approval, dated 19 June 2019 * Applicant's statement of injury, dated 23 August 2019 * HRC Purple Heart denial letter, dated 8 September 2021 FACTS: 1. The applicant states in effect, on 10 April 2010 in Jaghatu, Afghanistan, his convoy came under attack by the enemy with approximately four mortar rounds. One of the mortars landed in close proximity to him and the blast threw him from his vehicle. He landed on his back while wearing approximately 60 pounds of gear, slamming his head on the ground. He saw stars and blacked out for some seconds. He does not remember how he got back into his vehicle, but the medic that was riding with him checked him out while he was in the vehicle. The medic told him he sustained a concussion. He was taken off missions for a week by his first sergeant. He was restricted from full duty due to persistent signs and symptoms that impaired his judgement and decision making for about 1-week after the incident. As many Soldiers have done, he continued to do his job and defend freedom. He was awarded the Combat Action Badge for the incident. After the deployment, he served as a recruiter for 3 and one-half-years, in Korea for 1-year, and at Fort Hood, TX, for 2-years. He was medically retried due to injuries and disease that he sustained in combat. He is suffering from neurological deficits such as weakness, loss of balance, change in vision, praxis which causes difficulty with coordination, headaches, understanding or expressing words, and sensitivity to light. He was awarded a 100 percent disability rating by the VA and receives a combined 100 percent disability CRSC. The only medical records he was able to provide were since returning from his deployment, as he was in a remote isolated area and the notes from the medic were not available most likely due to the lack of resources at COP Jaghatu. He did provide a memorandum that was written by his company commander shortly after the incident. He requests to be awarded the Purple Heart for the incident in Afghanistan which has caused his current medical conditions. 2. A review of the applicant's service record shows: a. The applicant enlisted in the Regular Army (RA) on 19 April 1996. b. The applicant reenlisted in the RA on 1 July 1998. c. The applicant was honorably released from active duty on 30 June 2001 and assigned to the U.S. Army Reserve (USAR) Control Group (Reinforcement). d. The applicant's service record is void of any evidence of his discharge from the USAR. After a beak in service, the applicant enlisted in the USAR on 13 July 2007. e. The applicant's service record is void of any evidence of this discharge from the USAR. The applicant enlisted in the RA on 13 May 2008. f. On 19 October 2009, HQs, U.S. Army Garrison, Fort Bragg Orders Number 292-053, shows 27th Engineer Battalion deployed in a temporary change of station status to Afghanistan in support of Operation Enduring Freedom on or about 8 December 2009. The manifest shows the applicant's name. g. On 24 July 2010, Permanent Orders Number 205-66, issued by HQs, 372nd Engineer Brigade, the applicant was awarded the Combat Action Badge for engaging the enemy on 29 April 2010. h. The applicant's Noncommissioned Officer Evaluation Report for the period of 1 September 2009 through 31 August 2010 in the area of responsibility and accountability he was rated successful and his rater stated the applicant ensured Soldiers followed all safety measures on and off missions which resulted in zero injuries or casualties during the entire deployment. i. On 27 January 2011, Permanent Orders Number 027-16, issued by HRC, the 27th Engineer Battalion was awarded the Meritorious Unit Commendation for exceptional meritorious service during the period of 13 December 2009 through 5 December 2010. j. The applicant reenlisted in the RA on 9 October 2012. k. The applicant's service record is void of the results from the PEB. On 31 October 2016, Orders Number 305-0148, issued by HQs, III Corps and Fort Hood, the applicant was placed on the Temporary Disability Retired List (TDRL), effective 31 December 2016, with 90 percent disability which was based on injury or disease received in the line of duty as a direct result or armed conflict or caused by an instrumentality of war and was combat related. l. The applicant was honorably retired from active duty on 30 December 2016 and assigned to the USAR Control Group (Retired Reserve) with a temporary disability. m. On 29 January 2018, the informal PEB found the applicant physically unfit for retention and recommended he be placed on the Permanent Disability Retired List (PDRL) with 90 percent disability for: * post-traumatic stress disorder with 70 percent disability * paralysis of right radicular group with 40 percent disability * paralysis of left radicular group with 20 percent disability * paralysis of left common peroneal nerve with 20 percent disability * paralysis of right common peroneal nerve with 20 percent disability The PEB determined the following medical conditions not to be unfitting: * trigeminal neuralgia right sided * benign paroxysmal positional vertigo * traumatic brain injury * memory loss post-concussion * communication disorder cognitive post-concussion * bilateral tinnitus post-concussion * headaches post-concussion * blurred vision during headaches * myokymia right eyelid * atypical wall chest pain * laceration of right thumb with residual pain in right thumb * degenerative disc disease of lumbar spine * bilateral lower extremities with radicular symptoms * right shoulder strain * left shoulder rotator cuff tendinitis * keratosis pilaris symptomatic * erectile dysfunction * right ankle sprain recurrent * bilateral knee strain * gastroesophageal reflux disease * onychomycosis right toenails * allergic rhinitis seasonal * cervical strain * bilateral sensorineural hearing loss * sleep impairment n. On 16 March 2018, Orders Number D075-08, issued by USAPDA, the applicant was removed from the TDRL and placed on the PDRL, effective 16 March 2018, with 90 percent disability based on injury or disease received in the line of duty as a direct result of army conflict or caused by an instrumentality of war and combat related. 3. The applicant provides: a. Task Force Tiger Memorandum for Record, dated 7 May 2010, which states the applicant was involved in an IDF incident in the vicinity of COP Jaghatu, the convoy was staged on the northern portion inside the berm of the COP when four rounds of an IDF were walked across the staging area. All of the vehicles of the CLP were within 5 to 35 meters of at least one mortar round during the attack. The commander assessed that all the vehicles were within danger of the impacts with minimal damage to two of the vehicles. All of the vehicles were able to leave the COP under their own power. b. VA website shows unknown person was receiving 100 percent service-connected disability for: * Left knee strain 10 percent rating * Cervical strain (neck pain) 20 percent rating * Bilateral sensorineural hearing loss 20 percent rating * Idiopathic peripheral neuropathy of left lower extremity (left hip pain) 20 percent rating * Myokymia right eyelid and peripheral neuropathy face 10 percent rating * Left shoulder rotator cuff tendonitis 20 percent rating * Anosmia 10 percent rating * Tinnitus 10 percent rating * Degenerative disc disease of the lumbar spine with lumbosacral strain 20 percent rating * Headaches with blurred vision 30 percent rating * Right knee strain 10 percent rating * Idiopathic peripheral neuropathy of the right lower extremity 20 percent rating * Idiopathic peripheral neuropathy of the right upper extremity 40 percent rating * Post-traumatic stress disorder 70 percent rating * Dermatophytosis on toenails and keratosis pilaris 10 percent rating * Idiopathic peripheral neuropathy of the left upper extremity 20 percent rating * Right ankle lateral collateral ligament sprain 10 percent rating * Gastroesophageal reflux disease 10 percent rating * Right shoulder strain 20 percent rating c. VA letter, dated 7 January 2017, informed the applicant of his 100 percent service connected disability. He was considered to be totally and permanently disabled due solely to his service connected disabilities. d. HRC letter, dated 19 June 2019, informed the applicant his claim for CRSC was awarded a 100 percent disability for the same conditions mentioned in the VA webpage. e. VA disability rating decision, dated 30 August 2017, shows the applicant's disabilities subject to compensation for: * Post-traumatic stress disorder and traumatic brain injury with memory loss, communication disorder cognitive. and benign paroxysmal positional vertigo (also claimed as depression, anxiety, insomnia. head injury, dizziness and cognitive disorder), 50 percent from 31 December 2016, 70 percent from 23 August 2017 * idiopathic peripheral neuropathy of the right upper extremity (dominant) (also claimed as right hand pain with right thumb cut) 40 percent from 31 December 2016 * headaches with blurred vision 30 percent from 31 December 2016 * left shoulder rotator cuff tendonitis (claimed as left shoulder rotator cuff sprain) 20 percent from 31 December 2016 * right shoulder strain (dominant) (claimed as right shoulder sprain) 20 percent from 31 December 2016 * cervical strain (claimed as neck pain) 20 percent from 31 December 2016 * degenerative disc disease of the lumbar spine with lumbosacral strain 20 percent from 31 December 2016 * bilateral sensorineural hearing loss 20 percent from 31 December 2016 * idiopathic peripheral neuropathy of the left upper extremity 20 percent from 31 December 2016 * idiopathic peripheral neuropathy of the right lower extremity 20 percent from 31 December 2016 * idiopathic peripheral neuropathy of the left lower extremity 20 percent from 31 December 2016 * right ankle lateral collateral ligament sprain 20 percent from 31 December 2016 * cervical strain (claimed as neck pain) 20 percent from 31 December 2016 * degenerative disc disease of the lumbar spine with lumbosacral strain 20 percent from 31 December 2016 * bilateral sensorineural hearing loss 20 percent from 31 December 2016 * idiopathic peripheral neuropathy of the left upper extremity 20 percent from 31 December 2016 * idiopathic peripheral neuropathy of the right lower extremity 20 percent from 31 December 2016 * idiopathic peripheral neuropathy of the left lower extremity 20 percent from 31 December 2016 * right ankle lateral collateral ligament 10 percent from 31 December 2016 * right knee strain 10 percent from 31 December 2016 * left knee strain 10 percent from 31 December 2016 * tinnitus 10 percent from 31 December 2016 * anosmia 10 percent from 31 December 2016 * gastroesophageal reflux disease 10 percent from 31 December 2016 * dermatophytosis on toenails, and keratosis pilaris 10 percent from 31 December 2016 * myokymia, right eyelid 10 percent from 31 December 2016 f. DA Form 199, dated 22 September 2016, the informal PEB found the applicant physically unfit for retention and recommended the applicant be placed on the TDRL with 90 percent disability for: * post-traumatic stress disorder 50 percent * right upper extremity peripheral neuropathy 40 percent * left upper extremity peripheral neuropathy 20 percent * left lower extremity peripheral neuropathy 20 percent * right lower extremity peripheral neuropathy 20 percent g. Applicant's statement of injury, dated 23 August 2019, stated on 29 April 2010, he was the vehicle commander for a CLP on a convoy which departed Forward Operating Base (FOB) Shank (unit home base) enroute to COP Jaghatu to deliver supplies. Upon arrival to COP Jaghatu the vehicles lined up in convoy order and were given the order to dismount by the convoy commander in order to check their vehicles and provide security. The applicant felt an impact and then heard a blast at which time he seen dirt fly into the air. The convoy commander directed the applicant to get accountability of all the personnel and everyone to get back into the vehicles. The applicant ran to his vehicle when two more mortars landed in close proximity to him. He felt the impact and could smell the gun powder as he placed his foot onto the step plate. The mortar impacted approximately 25 to 30 meters to his left and the blast threw him from the vehicle and landed on his back. He was unconscious for a few minutes, but he remembers being dazed and seeing white spots. He does not recall how he was able to get back into his vehicle, but the medic was flashing a light in his eyes and told him he sustained a concussion. The applicant's vehicle was one of two vehicles that sustained damage. He was taken to a medic on the COP and was diagnosed with traumatic brain injury and he injured his back, shoulders, and knees. About a month later, he began to feel more and more diminished and felt awful. He had numbness in his legs and arms and headaches and lacked sleep. The applicant sought medical treatment and after extensive tests by neurology, he was diagnosed with peripheral neuropathy in all of his extremities, lower lumbar degenerative disc disease, and post-traumatic stress disorder. The applicant has difficulty waking and moving up stairs and his speech is also affected. h. HRC letter, dated 8 September 2021, stated the applicant could not be awarded the Purple Heart as the documentation provided could not be used to support his retroactive Purple Heart request. It was extremely difficult to conclusively link a post deployment medical diagnosis to an incident that took place years prior. Without military medical documentation from immediately after or close to the event, confirming the applicant had been diagnosed with and treated for a qualifying injury, the award could not be approved. i. Ninety-seven pages of various medical documents that begins about 20 January 2012. 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 and available military records the Board determined there is no medical record showing the applicant received wounds caused by enemy forces that required treatment by medical personnel. 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. The Board agreed there was insufficient evidence that showed the applicant’s name on the casualty listing or notification to his family that he had been wounded. Based on this, the Board denied relief. 2. In events involving TBI and other similar injuries, the applicant’s record must show that the 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. After reviewing the application and all supporting documents, the Board found insufficient medical evidence to meet the regulatory standard for the Purple Heart and thus recommended denying the request. 3. Prior to closing the case, the Board did note the analyst of record administrative notes below, and recommended the correction is completed to more accurately depict the military service of the applicant. 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: Except for the corrections addressed in the Administrative Note(s) below, the Board found 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. ADMINISTRATIVE NOTE(S): Reference the enclosed request for correction of military records from the subject individual to correct his DD Form 214 (Certificate of Release or Discharge from Active Duty) for the period ending December 30, 2016, by adding the Meritorious Service Medal. A review of the records listed below (enclosed) is sufficient to substantiate correction of the DD Form 214 without action by the Board. * DD Form 214, service ending December 30, 2016 * Enlisted Record Brief (ERB) * DA Form 4980-12 (Meritorious Service Medal Certificate) Headquarters, 1st Cavalry Division Permanent Orders Number 010-001 REFERENCES: 1. Army Regulation 600-8-22 (Military Awards), prescribes policies and procedures for military awards and decorations. Paragraph 2-8 (Purple Heart), the Purple Heart 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. 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. Some examples of enemy-related actions which justify eligibility for 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 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 2. Department of Defense Instruction 1348.33 (Department of Defense (DOD) Military Decorations and Awards Program), establishes policy, assigns responsibilities, and provides procedures for administering the DOD Military Decorations and Awards Program. Section 19: Use of Unofficial Sources of Information to Determine Eligibility for Military Decorations. 19.3. Affidavits (sworn, signed, and notarized) sourced from outside DOD are unofficial sources of information authorized for use in determining eligibility for military decorations. There are two categories of affidavits: a. Primary Affidavits. Affidavits from individuals, other than the award nominee, who personally witnessed (i.e., were with the Service member during the event and saw what the Service member did), or have first-hand knowledge of (e.g., were communicating with the Service member over the radio during the event) the Service member's service, actions, or condition. b. Supporting Affidavits. Such affidavits are from subject matter experts (SMEs) who can provide salient contextual information regarding the Service member's service, actions, or condition. Affidavits from SMEs will be limited to the SME's area of expertise. Supporting affidavits that express opinions as to whether the Service member should receive a decoration, or which level of decoration, will not be accepted and not used to make any award determination. //NOTHING FOLLOWS// ABCMR Record of Proceedings (cont) AR20210014578 1 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1