IN THE CASE OF: 
BOARD DATE: 30 January 2023 
DOCKET NUMBER: AR20220004679 

APPLICANT REQUESTS: award of the Purple Heart and a personal appearance before the Board via video or telephone. 
APPLICANT'S SUPPORTING DOCUMENT(S) CONSIDERED BY THE BOARD: 
. 
DD Form 149 (Application for Correction of Military Record) 

. 
self-authored statement 

. 
Permanent Order 353-615, Headquarters, 1st Infantry Division, Fort Riley, KS, 19 December 2006 

. 
Permanent Order 255-011, Headquarters, Multi-National Division (Center), Camp Victory, Iraq, 12 September 2007 

. 
4 DA Forms 2823 (Sworn Statement), from 11 December 2020 to 22 July 2021 

. 
memorandum, Army Human Resources Command (AHRC), Subject: Award of the Purple Heart..., 5 January 2021 

. 
Standard Form (SF) 600 (Medical Record -Chronological Record of Medical 

Care), 19 January 2021 . SF 600 (re-creation), 8 February 2022 

. 
Memorandum, AHRC, Award of the Purple Heart..., 24 March 2022 

. 
Officer Record Brief (ORB), 26 April 2022 

. 
Purple Heart reference document, AHRC website, 18 October 2021 

. 
United States Court of Appeals, Haselwander v. McHugh, 19 December 2014 


FACTS: 
1. 
The applicant did not file within the 3-year time frame provided in Title 10, U.S. Code, 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, in effect, 


a. On 15 May 2007, his 3-3 National Police Training Team was enroute from Samarra, Iraq, to the National Police Battalion Headquarters at Uvanni, when his vehicle was hit by an Improvised Explosive Device (IED). He was the gunner in the lead vehicle of the convoy. A large chunk of asphalt, approximately 40 pounds, hit his Kevlar, ricocheted off the turret of the HMMWV and landed on top of him inside the turret. 
b. 
The convoy continued on to the national Police Combat Outpost at Uvanni. He was helped from the vehicle by a teammate and evaluated by the medic, Staff Sergeant (SSG) A. He reported difficulty hearing, blurry vision, tunnel vision, a severe headache, and everything looked very bright. SSG informed him this seemed like a typical response to the event and assured him he would be better soon. He spent time in darkened rooms and limited his activities as much as possible. SSG continued to assure him everything would return to normal, but he should seek follow-up medical care when he returned home on leave. His symptoms dissipated, and he was able to resume normal activities after about three weeks. 

c. 
He has been diagnosed with tinnitus and hearing loss "consistent with blast damage," light sensitivity, recurring migraines, and he has been treated at Traumatic Brain Injury (TBI) clinics at multiple duty locations. His medical records indicate his ongoing conditions are associated with TBI and will require follow-up care for the rest of his life. 

d. 
His mild Traumatic Brain Injury (mTBI) and concussion were not properly diagnosed or documented at the time of injury due to the high operational tempo (OPTEMPO) of his mobile training team and the small combat outpost where he was stationed. 

e. 
AHRC denied his request for award of the Purple Heart, citing that the only existing medical documentation is after the time period of injury which subordinates the entire process for post facto award of the Purple Heart. The decision by ARHC mirrors a case vacated by the Federal Court of Appeals for the D.C. Circuit Court in Haselwander 

v. 
McHugh, Secretary of the Army (CADC Number 12-5297, 19 December 2014). The Court found that the HRC Review Board [sic] "misapprehends its powers and duties as a record correction body when it denies an application because the applicant's record is incomplete…void in Haselwander's medical records is the very error that he seeks to have corrected so that he can secure the Purple Heart to which he is entitled." The argument that medical records from the time of incident do not support award of the Purple Heart is the exact reason the application packet for award of the Purple Heart "after the fact" exists. 

f. 
Subsequent reviews of his condition by medical officers, included on an SF 600, state the provided treatment at the time was insufficient and additional treatment should have been rendered at the time of injury. All elements for award of the Purple Heart have been satisfied as outlined in Army Regulation (AR) 600-8-22 (Military Awards). In accordance with paragraph 2-8j, "When considering award of the Purple Heart for mTBI 


or concussion that did not result in the loss of consciousness, 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 great than 48 hours…" which would have been the finding if a medical officer was available to assess and treat his condition. 
3. 
The applicant, after having previous enlisted service in the Regular Army, accepted an appointment as a Reserve Commissioned Officer of the United States Army on 18 May 2002, he was subsequently ordered to active duty. 

4. 
Permanent Order 353-615, Headquarters, 1st Infantry Division, Fort Riley, KS, 19 December 2006 shows he was directed to proceed on a temporary change of station for deployment to Iraq, in support of Operation Iraqi Freedom (OIF). 

5. 
Permanent Order 255-011, Headquarters Multi-National Division (Center), Camp Victory, Iraq, 12 September 2007, shows he was awarded the Combat Action Badge for actively engaging or being engaged by the enemy on 15 May 2007. 

6. 
Three DA Forms 2823, dated 11 December 2020 to 23 December 2020, were completed by the applicant and two members of the National Police Training Team. They state, in effect, their convoy was hit by an IED on 15 May 2007. The applicant was hit by a large piece of asphalt. He was briefly assessed by a medic and continued with high OPTEMPO missions. 

7. 
An additional DA Form 2823, dated 22 July 2021, was completed by the medic who assessed the applicant's condition immediately following the IED attack on 15 May 2007. Sergeant First Class (SFC) A states, in effect, an IED was detonated by the first truck in their convoy. A large chunk of asphalt came down into the turret, striking the applicant's head. SFC A immediately went to check out the applicant when they arrived in Uvanni. He did not lose consciousness, insisted he was all right and was acting irritated. He reported his neck hurt and his ears were ringing. Three days later, SFC  took the applicant to fly out for leave. The applicant asked for aspirin multiple times, put his head down and closed his eyes any chance he could. SFC suggested he might have a concussion and recommended he see a physician when he got home. 

8. 
Memorandum, AHRC, Awards and Decorations Branch, 5 January 2021, shows the applicant's request for award of the Purple Heart was returned without action. The applicant provided AHRC an SF 600, dated 3 December 2021. AHRC acknowledged receipt of the SF 600 and stated, "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." AHRC requested an SF 600 from or near the events of 15 May 2007 before they could process the applicant's request. 

9. 
The applicant provides an SF 600, dated 19 January 2021, which shows he was seen for the purpose of completing medical documentation for his Purple Heart packet. The provider notes, the applicant was involved in an IED blast on 15 May 2007. A large block of concrete impacted his head, resulting in altered consciousness, tunnel vision and headache. The symptoms merit the Department of Defense (DoD) criteria for concussion. A review of his electronic health record resulted in no available records pertaining to the incident. 

10. 
The applicant provides an SF 600, recreated to reflect the events that took place on 15 May 2007. 


a. 
The SF 600, version 8/2018, is electronically signed by the medic who examined the applicant after the IED blast. The date in the signature block is illegible. The medic's entries provide the same information previously provided in his sworn statement, dated 22 July 2021. 

b. 
An additional handwritten entry, dated 8 February 2022, completed by a Nurse Practitioner, 45th Medical Group, Active Duty Clinic, states the applicant should have been sent to a Military Treatment Facility to see a physician for further evaluation for symptoms of concussion. 


11. 
Memorandum, AHRC, Awards and Decorations Branch, 24 March 2022, shows the applicant's request for award of the Purple Heart was disapproved. AHRC stated, the recommendation did not meet statutory guidance, "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." Post-deployment medical documentation cannot be utilized to satisfy the request. 

12. 
His DD form 214 shows he was retired from the Army on 31 August 2022, by reason of sufficient service for retirement. 

13. 
The applicant's military record does not contain, nor does he provide any evidence he was awarded the Purple Heart. 

14. 
The applicant provides a Purple Heart reference from the AHRC website, dated 18 October 2021, with the regulatory guidance and criteria for award of the Purple Heart in accordance with AR 600-8-22. 

15. 
He provides Case Number 12-5297, United States Court of Appeals, D.C. Circuit, Haselwander v. McHugh, Secretary of the Army, decided 19 December 2014. 


a. The Appellant was a Veteran of the U.S. Army, who served during the Vietnam War. He was wounded and knocked unconscious when an enemy rocket exploded near his sleeping quarters. He was picked up by medical personnel and treated for shrapnel wounds. He was called back to duty and no medical documentation was ever completed. As a result, his records do not show he was wounded in hostile action. 
b. 
The Appellant filed an application with the ABCMR to correct his records so he could receive the Purple Heart which he was never awarded due to the lack of medical documentation in his records. He provided corroborating references and photographs taken at the time he was wounded. The Board rejected his application, stating he failed to show he had been treated for a wound sustained by enemy action. He requested reconsideration, providing a letter from another Veteran wounded and treated at the same time. The Board denied his request for reconsideration due to insufficient evidence. 

c. 
He sought review in District Court. His motion was denied. He requested an appeal on the basis that he provided undisputed evidence that he was injured in an enemy attack and treated by Army medical staff. His records should be corrected, and he should be awarded the Purple Heart. 

d. 
It was determined that the Appellant provided the Board the necessary corroborating information to correct his medical records. The Board is sanctioned "to determine, insofar as possible, the true nature of an alleged injustice and to take steps to grant thorough and fitting relief." The Board "reasonably should have understood" the error in his records. The Senior Circuit Judge ordered that the judgement by the District Court be reversed and that the decision by the Board be vacated. 


16. AR 600-8-22, the regulatory guidance pertaining to the award of the PH, requires all elements of the award criteria to be met. There must be proof a wound was incurred as a result of enemy action, the wound required treatment by a medical officer; and the medical personnel made such treatment a matter of official record. Additionally, when based on a TBI, the TBI or concussion must have been severe enough to cause a loss of consciousness (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: 
1. 
The applicant's request for a personal appearance 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 before the Board is not necessary to serve the interest of equity and justice in this case. 

2. 
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 contentions, the military record, and regulatory guidance. The Board considered applicable regulatory guidance on the award of the Purple Heart in the instance of traumatic brain injury and agreed that the applicant received injuries as a result of enemy-generated explosion. However, in the Board found no documentation showing, nor was any provided to show applicant received treatment by a medical officer as required by regulation. Based on the preponderance of evidence available for review, the Board determined the evidence presented insufficient to warrant a recommendation for relief. 


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 determined 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, U.S. Code, 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. 
Army Regulation 600-8-22 prescribes Army policy, criteria, and administrative instructions concerning individual and unit military awards. 


a. 
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. 

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 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. 

c. 
When contemplating an award of the Purple Heart, 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 Purple Heart include concussion injuries caused as a result of enemy-generated explosions resulting in a mild (m) 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 do not justify award of the Purple Heart include PTSDs, hearing loss and tinnitus, 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. 

f. 
When recommending and considering award of the Purple Heart 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. 


3. AR 15-185 (Army Board for Correction of Military Records), paragraph 2-11 states applicants do not have the right to a hearing before the ABCMR. The Director of the ABCMR may grant a formal hearing whenever justice requires. 
//NOTHING FOLLOWS//