IN THE CASE OF: BOARD DATE: 25 August 2022 DOCKET NUMBER: AR20210015870 APPLICANT REQUESTS: * correction of his service record to reflect he was awarded the Purple Heart * personal appearance before the Board APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: * DD Form 149 (Application for Correction of Military Record) * Headquarters (HQs), U.S. Army Civil Affairs and Psychological Operations Command (USACAPOC) (Airborne) Orders Number 12-020-00049 * Transition Support Group – Faryab (TSG-F) International Security Assistance Force in Afghanistan (ISAF-A) Incident Report * Contact Report for 25 July 2012 * DA Form 2823 (Sworn Statement) from First Lieutenant (1LT) B- S- * DA Form 2173 (Statement of Medical Examination and Duty Status) * ISAF TSG-F Sworn Statement from R- J- * DA Form 2823 from Major (MAJ) D- S- (the applicant) * DD Form 214 (Certificate of Release or Discharge from Active Duty) service ending 17 March 2013 * 426th Civil Affairs (CA) Battalion (BN) Memorandum dated 12 January 2014, Subject: Request Approval of the Purple Heart Medal for MAJ D-S- (the applicant) * HQs and HQs Company (HHC), 351st CA Command Memorandum dated 26 February 2017, Subject: Request Approval for the Purple Heart Medal for Lieutenant Colonel (LTC) D-S- (the applicant) * HQs, 351st CA Command Memorandum dated 7 April 2017, Subject: Legal Review – DA Form 4187 (Personnel Action), Purple Heart Award LTC D-S- (the applicant) * DA Form 4187 Purple Heart * U.S. Army Human Resources Command (HRC) Memorandum dated 10 July 2017, Subject: Award of the Purple Heart for LTC D- S- (the applicant) * Office of S- L- Digital Privacy Release Form requesting assistance * Officer Record Brief * Explanation of Incident * Medical Records FACTS: 1. The applicant did not file within the three-year time frame provided in Title 10, United States Code (USC), 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 he met all the medical and legal requirements to be awarded the Purple Heart for injuries sustained in combat; however, the paperwork submission was improperly handled at multiple unit levels over a number of years. HRC denied his request to be awarded the Purple Heart stating medical records were not submitted with his application, which was incorrect. The documents were submitted but were lost in two submissions. The documents clearly link his injuries with enemy engagement and the fire fight with the right palm, hand, and wrist injury. This injury continues to be a problem even after surgery and extensive physical therapy. The medical records, supporting documents, and legal opinion indicate the incident met the legal requirements to be awarded the Purple Heart. 3. A review of the applicant's service record shows: a. On 18 February 1999, the applicant completed his oath of office and was appointed as a Reserve commissioned officer. b. Officer Record Brief shows the applicant was deployed to: * Iraq for 9-months ending on 7 August 2005 * Afghanistan for 9-months ending on 29 July 2009 * Afghanistan for 13-months ending on 10 February 2013 c. On 19 February 1999, Orders Number C-02-905278, issued by the U.S. Total Army Personnel Command, the applicant was appointed and assigned to the U.S. Army Reserve (USAR) Troop Program Unit, effective 18 February 1999. d. On 30 August 2000, the applicant completed his oath of office and was appointed a Reserve commissioned officer. e. The applicant was ordered to active duty on 4 July 2008 in support of Operation Enduring Freedom. He was honorably released from active duty on 20 August 2009. DD Form 214 shows the applicant completed 1-year, 1-month, and 17-days of active service. f. On 20 January 2012, Orders Number 12-020-00049, issued by HQs, USACAPOC, ordered the applicant to active duty in support of Operation Enduring Freedom, effective 21 February 2012. g. The applicant was honorably released from active duty on 17 March 2013. DD Form 214 shows the applicant completed 1-year and 27-days of active service. It also shows the applicant served in Afghanistan during the period of 26 March 2012 through 5 January 2013. h. On 8 April 2015, Orders Number 15-098-00003, issued by USACAPOC, ordered the applicant to active duty in support of Operation Enduring Freedom, effective 11 July 2015. i. The applicant was honorably released from active duty on 13 August 2016. DD Form 214 shows the applicant completed 1-year, 1-month, and 3-days of active service. j. On 22 July 2019, Orders Number HR-9203-00033, issued by HRC, ordered the applicant to active duty for operational support (ADOS), effective 3 August 2019. k. On 4 October 2019, Orders Number HR-9277-00025, issued by HRC, the applicant was ordered to ADOS, effective 15 October 2019. l. The applicant was honorably released from active duty on 31 January 2020. DD Form 214 shows the applicant completed 1-year, 1-month, and 3-days of active service. m. On 20 August 2021, Orders Number 21-232-00026, issued by HQs, 63rd Readiness Division, assigned the applicant to the USAR Control Group (Retired Reserve) due to maximum age, effective 31 October 2021. n. On 9 March 2022, Orders Number C03-291595, issued by HRC, placed the applicant on the retired list, effective 11 October 2021. 4. The applicant provides: a. ISAF-A incident report for 25 July 2012 which shows in the area of Hazara Qeslaq the TSG-F unit was conducting a foot patrol, when the unit navigated a corner, a single armed person with an AK-47 shot at them from approximately two meters away. The unit returned fire and withdrew to their vehicles. When they got back to the vehicles, the unit lost sight of the armed person. The unit continued patrolling in vehicles in the area, a two person team dismounted, when an armed person was observed raising an AK-47. The team reacted by returning fire and again withdrew to their vehicles and were supported by suppressive fire. b. TSG-F contact report for 25 July 2012, stated two members of the team dismounted and moved west along a compound wall, when they observed a man raising an AK-47 towards the team which was covered by the corner of the wall. The team reacted before the subject fired towards their location. The team returned fire and withdrew towards their vehicles to a safe distance. They were supported by suppressive fire. Once the situation was calm, the area was searched, and the incident was reported. The two team members that dismounted were Lieutenant (LT) S- and Major (MAJ) S- (the applicant). During the incident the applicant fell, at which time the other member of the team thought he was shot, but he was able to get up. c. DA Form 2823 from B-S- which stated on 25 July 2012, Team 3 conducted a mounted convoy to the Almar Bazar in Afghanistan to conduct a site inspection of culvert projects in the area. He and the applicant dismounted to conduct the inspection when they observed an Afghan person pointing an AK-47 in their direction and then fired from approximately 2-meters away. The team returned fire and moved back when the applicant stumbled. They mounted their vehicles and left the area. He checked his equipment and person and found a bullet hole at the back of his right boot and a layer of skin was broken and the heel was bruised. He did not seek medical attention. d. DA Form 2173 which shows the applicant was treated at the aid station at Camp Marmal on 25 July 2012 for bruising, inflammation, soreness and aches of soft tissue and joints which he sustained when he fell while seeking cover from direct fire. He injured his left elbow and forearm, left rib cage, left knee, right wrist and palm, and right ankle. e. Sworn statement from R-J- of the incident that occurred on 25 July 2012, which stated the applicant, LT B- S-, and himself dismounted their vehicles in the area of Dewana Khana, when they observed a man pointing an AK-47 in their direction approximately 2 to 3-meters away. The man began to fire, and the team moved back and returned fire to get to the safety of their vehicles. Once the situation was under control, they continued mounted patrol of the area. f. DA Form 2823 from the applicant, he was a part of a team which conducted a site inspection of culvert projects in the Almar District. He and LT B- S- dismounted their vehicles to conduct a foot patrol towards the inspection site when they were within 2 to 3-meters of an intersection he observed the barrel of an AK-47 pointed in their direction as if prepared to fire. The applicant began to fire, and they moved back towards their vehicles to avoid the insurgent fire. The applicant tripped over a large rock or stone with his right foot and fell hard to the ground. During which time, he could hear the rounds of the AK-47 whizzing past him and he returned fire from the seated position until he was able to get back to his feet. When they mounted their vehicle, LT S- noticed the applicant had blood running from the bridge of his nose under his left eye from a gash on the bridge of his nose sustained during the enemy engagement from a rock or his eye protection falling on his nose. After the incident was reported they continued patrolling the area. Upon returning to base, he noticed he sustained numerous injuries of his left forearm and elbow which was swollen, bruised and tender, also his left knee was swollen and bruised, left rib cage was tender with a sharp constant pain, right ankle was swollen and tender and bruised right palm. He decided to rest. On 27 July 2012, the pain from his injuries had gotten worse, but the aid station did not open until after he had to return to Camp Marmal. Upon his return to Camp Marmal, he went to the aid station for treatment of his injuries, and he was prescribed Motrin and Naproxen; however, no report was written. On 1 August 2012, he returned to the aid station for a follow up to his injuries and obtain a copy of the medical report for his line of duty. He was prescribed Tylenol and Naproxen and was recommended he rest and no physical training for a couple of weeks. He returned to the aid station on 21 August 2012, for follow up treatment as his left elbow, right knee and elbow were still sore but was getting better. His right hand, palm and wrist were x-rayed, and he was prescribed Tylenol and Naproxen. He returned to the aid station on 30 August 2012, the doctor told him the injury of his right palm may take up to 8-weeks to heal as the injury was probably ligament and/or tendon damage. The doctor prescribed ibuprofen and completed the line of duty paperwork for the medical records. g. 426th CA BN memorandum dated 12 January 2014 from Lieutenant Colonel (LTC) R- S-, which recommended the applicant receive the Purple Heart. The former BN commander submitted a request for the Purple Heart for the applicant while in theater but was denied as the surgeon did not have sufficient information to properly evaluate and approve the award. Since returning from theater, he had received substantial medical treatment for his right hand injury which was sustained during a fire fight that occurred on 25 July 2012. h. HHC, 426th CA BN memorandum dated 28 February 2017 from MAJ C- B-, which recommended the applicant receive the Purple Heart. The former BN commander submitted a request for the Purple Heart for the applicant while in theater but was denied as the surgeon did not have sufficient information to properly evaluate and approve the award. Since returning from theater, he had received substantial medical treatment for his right hand injury which was sustained during a fire fight that occurred on 25 July 2012. i. HQs, 351st CA Command memorandum dated 7 April 2017, stated the legal review was found to be legally sufficient and no objections to the further processing for the request to award the applicant the Purple Heart. The Command Judge Advocate reviewed the facts and circumstances of the narrative which indicated the applicant met the statutory guidelines and was entitled the Purple Heart. k. DA Form 4187, the applicant requested the award of the Purple Heart for injuries he received in action caused directly by the enemy on 25 July 2012 in the Almar District, Afghanistan when he was assessing a CA project. He received and returned small arms fire with an enemy combatant within 2 to 3-meters. During the contact, he tripped on a large rock and fell, injuring his left forearm, left rib cage, right hand and palm, and a gash on the bridge of his nose. These injuries were sustained as a direct result of combat action with the enemy. His commander recommended approval of the request and was endorsed by his BN commander. l. HRC memorandum dated 10 July 2017, Subject Award of the Purple Heart for LTC D- S- (the applicant), the request for the Purple Heart was disapproved stating the award of the Purple Heart for the event did not meet the statutory guidance as outlined in Army Regulation (AR) 600-8-22 (Military Awards). The lack of supporting medical documentation at or near the date of enemy action reflecting a diagnosis or indication of a qualifying injury made it impossible to connect an injury to the incident. m. Unauthored document which stated the applicant was deployed to Afghanistan as a member of the 426th CA BN in support of Operation Enduring Freedom from 2012 through 2013. He served as the Regional Command North CA Detachment Commander. On 24 July 2012, he traveled from Camp Marmal to the Norwegian Provincial Reconstruction Team (PRT) in Faryab Province, Afghanistan to conduct a 5-day battlefield circulation. On 25 July 2012, he departed the Maimanah PRT to conduct site inspections of culvert projects, during which he conducted foot patrol. They were engaged by an enemy fighter with an AK-47 from approximately 2 to 3-meters away, which they returned fire to get back to their vehicles. The applicant tripped on a rock and fell hard on his right hand and forearm. He sought treatment at the PRT and received ongoing treatment at Camp Marmal upon return to base. n. Twenty-six pages of medical records dated during the period of 1 August through 28 December 2012. BOARD DISCUSSION: 1. After reviewing the application, all supporting documents, and the evidence found within the military record, the Board found relief is not warranted. The Board found the available evidence sufficient to consider this case fully and fairly without a personal appearance by the applicant. 2. The Board found insufficient evidence indicating the applicant incurred an injury as a result of hostile action that required treatment by a medical officer as defined in Army Regulation 600-8-22. Based on a preponderance of the evidence, the Board determined HRC’s determination that the evidence does not support award of the Purple Heart was not in error or unjust. 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. Title 10, USC, 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. AR 15-185 (ABCMR) prescribes the policies and procedures for correction of military records by the Secretary of the Army, acting through the ABCMR. Paragraph 2–11 states, 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. AR 600-8-22 (Military Awards), prescribes Department of the Army policy, criteria, and administrative instructions concerning individual and unit military awards. Paragraph 2–8 (Purple Heart) states, while clearly an individual decoration, 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. 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. a. Treatment of the wound will be documented in the member’s medical and/or health record. b. 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. c. 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. d. 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 United States Navy. * An officer in the United States Air Force designated as a medical officer in accordance with Title 10, United States Code, section 101. //NOTHING FOLLOWS// ABCMR Record of Proceedings (cont) AR20210015870 1 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1