IN THE CASE OF: BOARD DATE: 16 March 2022 DOCKET NUMBER: AR20210014731 APPLICANT REQUESTS: a. reconsideration of his previous request for award of the following and correction of his DD Form 214 (Certificate of Release or Discharge from Active Duty) for the period ending 6 February 2013 to show these awards: * Purple Heart * Combat Infantryman Badge (CIB) * Combat Action Badge (CAB) b. a personal appearance hearing before the Board. APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: * DD Form 149 (Application for Correction of Military Record under the Provisions of Title 10, U.S. Code, Section 1552) * Self-authored Statement, 14 May 2021 * Eyewitness Statement, 21 January 2021 * Excerpt from Field Manual 3-24 (Insurgencies and Countering Insurgencies) FACTS: 1. Incorporated herein by reference are military records which were summarized in the previous consideration of the applicant's case by the Army Board for Correction of Military Records (ABCMR) in Docket Number AR20190010213 on 21 May 2020. 2. The applicant states that Soldiers who meet the criteria for awards and decorations should be given those awards and decorations. a. He believes the sole issue of contention is that the people trying to kill/capture/ injure U.S. forces in Afghanistan are not considered enemy personnel. The previous Board's discussion and reason for his denial mentions "the individuals outside the compound" and refers to them as "protestors and students." Furthermore, the board states they "found insufficient evidence to determine them to be enemy forces."? b. He provides new information that includes a statement from an eyewitness, who was one of his primary interpreters at the Adraskan National Training Center to train Afghanistan National Police on counterinsurgency operations. His eyewitness states the Taliban fighters were involved in the attacks on 24 February 2012 at the training center. They were dressed in police uniforms and pretending to be students. The eyewitness confirms that the Taliban were also involved in attacking U.S. forces from outside the base. c. He and his interpreter had direct interaction with the Afghanistan Police instructors and students. Because of that work, they knew each of these individuals personally. This is how they knew the individuals involved in the attack were not instructors. In addition, the attack happened on a Friday and Fridays in Afghanistan are like Sundays in the United States. The Afghan instructors were not even on the base when the attack occurred (they were off base on pass) and showed up later. d. However, there were police students involved in the attack, but were being used as cover by the attacking Taliban and also to attempt to incite U.S. personnel to resort to violence. This tactic is covered in U.S. doctrine in Field Manual 3-24. Field Manual 3-24 specifically states that an insurgent tactic is to use raids or attacks on facilities "to demonstrate to...inability to secure critical facilities." Field Manual 3-24 also states that demonstrations can be used "to incite violent responses by counterinsurgents." In the instance of the attacks of 24 February 2012, the Taliban combined both tactics. This clarifies that the Taliban, an enemy of the United States, were involved in and conducted the attack on U.S. forces at Adraskan National Training Center on 24 February 2012. During the attack, at least six individuals were killed and he witnessed two of these individuals being shot who were only 50 feet from him. e. He was the only combat arms trained U.S. service member present on the base. He was the only one with formal counterinsurgency training. Therefore, he was the only one to make the determination of the identity of the attacking parties. The attackers were both inside and outside the compound. They were responsible for his traumatic brain injury (TBI) that is the basis for his Purple Heart request. f. He believes the Board disregarded consideration of his presence during a rocket attack, which occurred on 7 October 2011, and that this event is regarded as qualifying for award of the CIB or CAB. He previously sought award of the CAB; however, being an infantry officer, receiving hostile fire pay, and being engaged and actively involved by the enemy, both in ground combat and by direct fire, substantiates only award of the CIB. g. The U.S. Army Human Resources Command (HRC) website posts the following questions and answers regarding award of the CIB: Q10: Is an Infantry/Special Forces (SF) Soldier assigned as an advisor to an Iraqi Infantry unit authorized to earn the CIB since he is not assigned to an Army Infantry unit? A10: Yes. The Soldier is eligible to earn the CIB. Infantry and SF personnel assigned as advisors, trainers, or liaisons with formed Afghan or Iraqi Infantry/SF units or Iraqi specialized Infantry type units of brigade, regiment, or smaller size, or assigned as advisors to a foreign Infantry/SF unit comparable to the above Infantry units may earn the CIB as long as the basic criteria are met. h. His duties had him working as a trainer/adviser for both Afghanistan Police and Army units. Furthermore, the Afghanistan Police units could certainly be considered an "infantry-type" unit...as he doesn't know many police agencies who patrol with rocket- propelled grenade launchers and crew served weapons. 3. The applicant was appointed as a commissioned officer in the Pennsylvania Army National Guard and executed his oath of office on 17 August 2002 in the Aviation Branch. He subsequently transferred to the Infantry Branch. 4. He transferred to the Massachusetts Army National Guard and executed another oath of office on 23 July 2008. 5. He was promoted to the rank/grade of first lieutenant/O-2 effective 23 October 2009. 6. HRC Orders A-02-103192, 14 February 2011, ordered him to active duty in a contingency operation – active duty for operational support status in support of Operation Enduring Freedom to fill a Worldwide Individual Augmentee System tasking for duty as a regional instructor in Kabul, Afghanistan, for a period of 400 days with a reporting date of 17 April 2011 and an ending date of 20 May 2012. 7. He was honorably released from active duty and transferred to the control of his assigned Massachusetts Army National Guard troop program unit on 6 February 2012. He completed 1 year, 9 months, and 20 days of net active duty including 10 months and 9 days of foreign service during this period. His DD Form 214 shows in: * item 11 (Primary Specialty) – 11A Infantry – 1 year and 10 months * item 14 (Military Education) – Counterinsurgency Leaders Course, 1 week, 2011 * item 13 (Decorations, Medals, Badges, Citations, and Campaign Ribbons Awarded or Authorized) – no Purple Heart, CIB, or CAB * item 18 (Remarks), in part – * SERVED IN A DESIGNATED IMMINENT DANGER PAY AREA * SERVICE IN AFGHANISTAN 20110530-2012 0408 [30 MAY 2011-8 APRIL 2012] * PERIOD FROM 20110417 TO 20130206 [24 APRIL 2012 TO 6 FEBRUARY 2013] IAW 10 USC 12322 [IN ACCORDANCE WITH TITLE 10, U.S. CODE, SECTION 12322]; PURPOSE: TO PARTICIPATE IN RESERVE COMPONENT WARRIORS IN TRANSITION MEDICAL RETENTION PROCESSING PROGRAM FOR COMPLETION OF MEDICAL CARE AND TREATMENT 8. Joint Force Headquarters, Massachusetts National Guard, Orders 131-014, 10 May 2016, honorably separated him from the Army National Guard effective 29 May 2016 and transferred him to the Retired Reserve. The additional instructions list his assignment/loss code as placement on the Permanent Disability Retired List. 9. His National Guard Bureau Form 22 (National Guard Report of Separation and Record of Service) shows the authority and reason for his separation as resignation. He was transferred to the Retired Reserve in the rank of first lieutenant effective 29 May 2016. He completed 10 years, 10 months, and 9 days of total service for pay purposes. 10. A review of his Army Human Resource Record (AHMRR) failed to reveal evidence showing he was awarded the Purple Heart or recommended or approved for award of the CIB or CAB for his service in Afghanistan. 11. The HRC letter, 15 May 2017, responded to the applicant's Congressional representative's request on behalf of the applicant concerning award of the Purple Heart, CIB, and CIB. The Chief, Awards and Decorations Branch, stated: I understand [Applicant's] desire to obtain recognition for his service; however, I stand by my previous response of May 4, 2017, not to authorize issuance of the Purple Heart or a Combat Badge. Although [Applicant] may have been mobilized in support of a stability operation, to include, but not limited to, national assistance, insurgency support, riot control, arms control, and civil support operations, the Purple Heart is only authorized to Soldier's [sic] wounded as a result of enemy action. The Afghan civilians who initiated the civil disturbance on February 24, 2012, are not considered a hostile foreign force with whom the United States is engaged in armed hostilities. Further, Combat Badges are not authorized for participation in stability operations because such operations are not combat related. 12. He provided medical documents in support of his claim of a TBI showing: a. His rated disabilities, undated, notes his medical condition listed as headache syndromes (previously rated as post-concussive headaches, claimed as TBI) was assigned a 10-percent disability rating. His claim of TBI with cognitive dysfunction was not rated service connected. b. The neuropsychological assessment, 7 November 2012, noted the applicant's head injuries as: "In 2011 while under a rocket attack [the applicant] was knocked off his feet from the concussive force of a blast. [On] 24 Feb[ruary] 2012 [the applicant was] struck in the head multiple times by rocks from Afghan nationals. [Applicant] reported being struck in the back of the head and the temporal lobe areas repeatedly. He has no recollection of moving to safety or back to the operations center." The diagnosis lists post-concussion syndrome, predominantly neurocognitive and affect features, and sleep disturbance. The prognosis states the applicant's TBI has not caused cognitive deficits to such a degree as to render him unable to function in the military environment. 13. On 21 May 2020, the ABCMR denied his request for award of the Purple Heart and CAB. The Board determined the overall merits and evidence of the case were insufficient to grant relief. 14. He additionally provided: a. an eye-witness statement from his former interpreter/linguist/cultural adviser, 21 January 2021, wherein he notes the applicant, a counterinsurgency officer, was assigned to the Counterinsurgency Training Center in Kabul. The applicant was sent to the Adraskan National Training Center to train Afghan National Police on counterinsurgency operations. An attack occurred on 24 February 2021 involving a large group who appeared to be police students and local citizens; however, they were Taliban dressed in police uniforms and pretending to be students; and b. an excerpt from Field Manual 3-24 wherein he highlighted a potential indicator of insurgent approaches of "infiltration and subversion of host-nation government and security forces in urban areas" and highlighted an example of insurgent attacks of "demonstrations can be used to incite violent response by counter-insurgents and also to display the popularity of the insurgent cause." BOARD DISCUSSION: 1. After reviewing the application, all supporting documents, and the evidence found within the applicant's military records, 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 careful 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 Board considered the applicant’s 10-percent disability rating. Although his claim of TBI with cognitive dysfunction was not rated service connected. 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. 2. The Board found 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 nor the Combat Infantryman Badge based on the insufficient evidence found in the applicant’s service records. The Board agreed there is insufficient evidence to amend the previous Board’s decision and denied relief. 3. 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. 4. 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 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 to amend the decision of the ABCMR set forth in Docket Number AR20190010213 on 21 May 2020. 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 15-185 (Army Board for Correction of Military Records) 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. The applicant has the burden of proving an error or injustice by a preponderance of evidence. The ABCMR may, in its discretion, hold a hearing (sometimes referred to as an evidentiary hearing or an administrative hearing) or request additional evidence or opinions. 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. 2. Title 10, U.S. Code, section 948(a) (Definitions), provides the following definitions: a. Privileged Belligerent: The term "privileged belligerent" means an individual belonging to one of the eight categories enumerated in Article 4 of the Geneva Convention relative to the treatment of prisoners of war. b. Unprivileged Enemy Belligerent: The term "unprivileged enemy belligerent" means an individual (other than a privileged belligerent) who: * has engaged in hostilities against the United States or its coalition partners * has purposefully and materially supported hostilities against the United States or its coalition partners * was a part of al Qaeda at the time of the alleged offense under this chapter c. Hostilities: The term "hostilities" means any conflict subject to the laws of war. 3. Title 38, U.S. Code, sections 1110 and 1131, in part, permit the Department of Veterans Affairs (VA) to award compensation for a medical condition that was incurred in or aggravated by active military service. The VA, in accordance with its own policies and regulations, awards compensation solely on the basis that a medical condition exists and that said medical condition reduces or impairs the social or industrial adaptability of the individual concerned. The VA can evaluate a veteran throughout his or her lifetime, adjusting the percentage of disability based upon that agency's examinations and findings. 4. 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 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 treatment by a medical officer, and the medical treatment must have been made a matter of official record. The Purple Heart differs from all other decorations in that an individual is not "recommended" for the decoration; rather, he or she is entitled to it upon meeting specific criteria. When contemplating eligibility for the Purple Heart, the two critical factors commanders must consider is the degree to which the enemy or hostile force caused the wound and whether the wound was so severe that it required treatment by a medical officer. (1) 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 below. 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 Purple Heart 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. (2) The key issue commanders must take into consideration when contemplating an award of this decoration 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 sole justification for award. (3) When considering award of the Purple Heart for a mild TBI or concussion that did not result in the loss of consciousness, the chain of command will ensure the diagnosed mild TBI 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. (4) The following nonexclusive list provides examples of medical treatment for mild TBI or concussion that meet the standard of treatment necessary for award of the Purple Heart: * referral to neurologist or neuropsychologist to treat the diagnosed mild TBI or concussion * rehabilitation (such as occupational therapy, physical therapy, and so forth) to treat the mild TBI or concussion * restriction from full duty for a period of greater than 48 hours due to persistent signs, symptoms, or physical finding of impaired brain function due to the mild TBI or concussion (5) 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. b. The CIB was designed to enhance morale and the prestige of the "Queen of Battle." The badge was intended as an inducement for individuals to join the infantry while serving as a morale booster for infantrymen serving in every theater. (1) There are basically three requirements for award of the CIB. The Soldier must be an infantryman satisfactorily performing infantry duties, he must be assigned to an infantry unit during such time as the unit is engaged in active ground combat, and he must actively participate in such ground combat. (2) On or after 18 September 2001: (a) A Soldier must be an Army infantry or SF officer (career management field or area of concentration 11 or 18) in the grade of colonel/O-6 or below, or an Army enlisted Soldier or warrant officer with an infantry or SF military occupational specialty, who has satisfactorily performed duty while assigned or attached as a member of an infantry, ranger, or SF unit of brigade, regimental, or smaller size during any period such unit was engaged in active ground combat, to close with and destroy the enemy with direct fires. (b) A Soldier must be personally present and under fire while serving in an assigned infantry or SF primary duty in a unit engaged in active ground combat to close with and destroy the enemy with direct fires. Improvised explosive devices, vehicle- borne improvised explosive devices, and the like are direct fire weapons. While no fixed, qualifying distance from an explosion of these devices can be established, commanders should consider the entirety of the combat situation when considering award of the CIB. (c) The special provision authorized for the Global War on Terrorism is listed in this paragraph. The CIB may be awarded to recognize those U.S. Army infantry and SF Soldiers embedded in formed Afghan National Army or Iraqi infantry and/or SF units, or Iraqi specialized infantry-type units of brigade, regimental, or smaller size, or assigned as advisors to a foreign infantry and/or SF comparable to the above infantry units, as tactical advisors, trainers, or liaisons, during the time that the supported infantry and/or SF unit engages in active ground combat to close with and destroy the enemy with direct fires. Qualified Soldiers must have been personally present and have participated in the combat operations. c. The CAB was approved on 2 May 2005 to provide special recognition to Soldiers who personally engaged or are engaged by the enemy. The CAB is intended to serve as a companion to the CIB and Combat Medical Badge to recognize the greatly expanded role of non-infantry Soldiers in active ground combat. (1) 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, 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. (2) The specific eligibility requirements include: (a) The CAB may be awarded to any Soldier. (b) A Soldier must be personally present and under hostile fire while performing satisfactorily in accordance with the prescribed rules of engagement in an area where hostile fire pay or imminent danger pay is authorized. For all named conflicts beginning after the effective date of this publication, a Soldier must also be performing in an offensive or defensive act while participating in combat operations, engaging or being engaged by the enemy. A Soldier must be performing their assigned duties associated with unit’s combat mission in an area where hostile fire pay or imminent danger pay is authorized. The requirement for hostile fire pay or imminent danger pay does not apply to cases determined to be eligible under the conditions described in paragraph 3-8c. (c) A Soldier must not be assigned or attached to a unit that would qualify the Soldier for the CIB and/or Combat Medical Badge. For example, an infantryman (MOS 11B) assigned to corps staff is eligible for award of the CAB. However, an infantryman assigned to an infantry battalion is not eligible for award of the CAB. 5. Army Directive 2011-07 (Awarding the Purple Heart), 18 March 2011, provided clarifying guidance to ensure the uniform application of advancements in medical knowledge and treatment protocols when considering recommendations for award of the Purple Heart for concussions (including mild TBI 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 Purple Heart 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 Purple Heart 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 the Soldier 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, U.S. 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 SF medics). Basic corpsmen and medics (such as combat medics) are not physician extenders. e. When recommending and considering award of the Purple Heart 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 the Purple Heart: (1) diagnosis of concussion or mild traumatic brain injury; (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 tomography or magnetic resonance imagining scan). g. The following nonexclusive list provides examples of medical treatment for concussion that meet the standard of treatment necessary for award of the Purple Heart: (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. //NOTHING FOLLOWS// ABCMR Record of Proceedings (cont) AR20210014731 1 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1