IN THE CASE OF: BOARD DATE: 26 May 2023 DOCKET NUMBER: AR20220008420 APPLICANT REQUESTS: a personal appearance hearing before the Board via video or phone, and entitlement to the Purple Heart. APPLICANT'S SUPPORTING DOCUMENT(S) CONSIDERED BY THE BOARD: * DD Form 149 (Application for Correction of Military Record) and signature page * DD Form 214 (Certificate of Release or Discharge from Active Duty), 16 August 1996 * Permanent Orders 328-3, Headquarters, 3rd Infantry Division and Fort Stewart, 23 November 2004 * Permanent Orders 5-2, Headquarters, 3rd Infantry Division and Fort Stewart, 5 January 2005 * Permanent Orders Number 205-97, Headquarters, 3rd Infantry Division, 24 July 2005 * Statement, 25 March 2022 * Memorandum for Record, 30 March 2022 * DA Form 199 (Informal Physical Evaluation Board (PEB) Proceedings), 6 April 2022 * Officer Record Brief, 15 April 2022 * Memorandum for Record, 18 April 2022 * DA Form 4187 (Personnel Action), 21 April 2022 * Memorandum, U.S. Army Human Resources Command (AHRC), 6 June 2022 * Applicant Statement, 15 June 2022 * DD Form 214, 29 June 2022 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. According to the memorandum from AHRC denying his request for the Purple Heart, "[the applicant's] primary wounds at the time of the event were abrasions, bruises and contusions, hip pain, and anxiety; it does not appear he was treated for mild traumatic brain injury (mTBI). Further, we cannot utilize post-deployment medical documentation." The memo fails to mention headaches, nausea, unbalance, ringing in the ears, and unconsciousness which are direct symptoms of TBI which are addressed in statements enclosed, the treating physician and a Soldier who witnessed the event. b. However, "the key issue that [the Board] must take into consideration is the degree to which the enemy caused the injuries." He was treated by the battalion surgeon for wounds inflicted by the enemy by mortar rounds that landed directly on his position (Criteria 1) while engaged in direct fire with the enemy during which time, he was knocked unconscious (Criteria 2). He waited approximately 36 hours before seeing the battalion surgeon for his hip, back, neck injuries and headaches, nausea, dizziness, ringing in the ears which are all symptoms of TBI. (TBI Purple Heart Guidance was released in 2011). He was given 48 more hours, to the 36 hours from the time of the incident, (Total approximately 84 hours from time of incident (Criteria 2)) to get back into the fight. Numerous times a week, he was medicated, and monitored by the battalion surgeon for his headaches, back, neck, and hip pain. He has had his hip replaced, neck fusion twice, TBI, and ulnar nerve transposition twice due to the 26 April 2005 event. 3. The applicant retired honorably from the Regular Army in the rank/grade of lieutenant colonel (LTC)/O-5 on 29 June 2022. The narrative reason for his separation is disability, combat related. Evidence shows he served in Bahrain from 22 January 2002 to 15 December 2002; Iraq from 30 January 2005 to 18 January 2006; and Afghanistan from 9 January 2008 to 10 February 2009. 4. On 6 June 2022, the AHRC disapproved his request for entitlement to the Purple Heart for injuries received while deployed in support of Operation Iraqi Freedom (OIF). The AHRC official stated, "after a thorough review of the information provided, the forwarded recommendation for award of the Purple Heart does not meet the statutory guidance outlined in Army Regulation 600-8-22 (Military Awards), paragraph 2-8g: the Purple Heart cannot be awarded for "mTBI that does not result in loss of consciousness or restriction from full duty for a period greater than 48 hours due to persistent signs, symptoms, or physical finding of impaired brain function." Per the provided documentation, [the applicant's] primary wounds at the time of the event were abrasions, bruises and contusions, hip pain, and anxiety; it does not appear he was treated for mTBI. Further, we cannot utilize post deployment medical documentation, such as the provided Informal PEB Proceedings, to justify a retroactive award of the Purple Heart." 5. The applicant provides a copy of his Purple Heart packet dated 20 April 2022, in which he was recommended for the Purple Heart for wounds/injuries received in action caused directly by the enemy on 26 April 2005 near Taji, Iraq. He claims to have received concussion injuries to the head, neck, torso, hip and a mTBI caused as the result of enemy mortar explosions. The packet includes a/an: a. Statement from dated 25 March 2022, wherein he states, he served as the task force surgeon. The applicant was first seen late April for hip pain and headaches. During examination, he showed signs of anxiety and had abrasions and contusions along his right torso, hip, and thigh. A slight limp was noticed in his right leg when he walked. He was involved in enemy attack a few days earlier on or about 26 April 2005. He was medicated with Motrin and received 48 hours quarters due to headaches. The applicant was seen on follow-up weekly from May through August 2005. His hip pain increased, medications increased to opioids for pain management, headaches were intermittent, and his anxiety was treated with Diazepam. The applicant follow-up hip pain continued to increase, and he was recommended for redeployment; however, the patient was a commander, and he requested all efforts be made to manage in theater. Started Demerol injections monthly from September through December 2005. Opioids at 8-10 3/325 Percocet daily. Consulted with Orthopedics at the combat support hospital in November 2005. Continued treatment until redeployment in January 2006 and referred to Fort Gordon, GA, Orthopedics in February 2006. Orthopedics recommended to continue to treat conservatively as long as possible due to applicant's young age. Hip replacement needed, but as last option. Continue to manage with primary care manager at Fort Stewart, GA. b. Statement from LTC dated 30 March 2022, wherein he claims, on 26 April 2005, the applicant was in command of a combat logistics patrol escorting approximately 20 large logistics vehicles with critical supply parts from Logistics Support Area Anaconda (Ballad) to FOB Prosperity (Baghdad). (1) He was in the lead gun-truck and the applicant was in the following gun-truck providing command and control. The patrol was planned to occur through the middle of the night with a departure time of approximately 0100 hours. (2) The patrol was engaged by a squad size element (12 enemy personnel) in a complex attack about 10 miles north of Taji. The enemy forces engaged from the patrols right (west) using a train track berm as cover. The attack was initiated with small arms fire and an IED that detonated a few feet in front of his High Mobility Multipurpose Wheeled Vehicle (HUMMWV). The patrol immediately executed actions on contact maneuvers with my HUMMWV turning into the enemy and returning fire. The applicant's HUMMWV maneuvered around him and set up to expand their support by fire and laydown an overwhelming amount of suppressive fire while the remaining convoy maneuvered out of the kill zone. (3) The applicant dismounted his vehicle to coordinate for attack aviation air support and position the Bradley Fighting Vehicles. He witnessed multiple mortar rounds (2-3) impact near the applicant's vehicle. The explosive blast of the impacts was such that his HUMMWV door was violently slammed into him, crushing him between the door and vehicle's frame. Undeterred and determined to defend the convoy, the applicant pushed through his injuries and continued engaging the enemy. Once the entire convoy was approximately 1 km down the road, the gun-trucks and Bradley's broke contact and re-joined the convoy. (4) Upon returning to FOB Prosperity, the applicant led the patrol though an after-action review (AAR) at battalion with the S2. On the walk back to the company command post following the AAR, he noticed the applicant was having difficulty hearing. The applicant told him the blast and over-pressure from the mortar explosions really rattled his head and that he had a pounding headache and a constant high pitch buzz in his ears. Later in the day after, catching a few hours of sleep, he noticed the applicant walking with a slight limp that bothered him increasingly as the day went on. He said he felt like he had one hell of a bruise in his hips and side from the heavy armored door slamming into him from the blast. He also mentioned that he had some serious soreness in his back that prevented him from getting any rest. By the following day, his injuries were really bothering him and show no signs of subsiding. That is when he decided to check in with the task force doctor and see if there was anything that could be done to relief his pain and keep him in the fight through the deployment. c. Statement dated 18 April 2022, wherein the applicant claims, a Medical Evaluation Board convened on 6 April 2022 and concluded his right hip, neck, and TBI were the direct result of armed conflict with the enemy based on the events that occurred on 26 April 2005 based on statements and his medical records. Medical records from OIF Ill are missing from his medical records. (1) On 26 April 2005, he was leading a convoy of approximately 30 vehicles and 75 personnel from Balad, Iraq to Baghdad, Iraq. At about 0100 hours, the convoy was attacked near Taji, Iraq by IEDs and small arms fire. The convoy security element separated from the convoy main body and established blocking positions. As the commander, he moved with the security element and established a blocking position along with three other HMMWVs and two M2 Bradley IFVs. (2) Due to near zero illumination, identifying the enemy's locations was initially difficult so he dismounted his HMMWV and moved toward the side of the vehicle in the direction of the enemy. (3) He began to fix on the enemy positions using direct fire with .50 caliber machine guns, a MK19 grenade launcher, and M240 machine guns while coordinating for attack aviation support. One M2 could not identify the enemy from their position and the other was unable to engage due to a weapon malfunction. Fire superiority was quickly established as the enemy began to engage his position with mortar fire. He saw and heard multiple explosions 50 meters or less south of his position before his position was hit. He only saw the flash from the explosion that hit his position; he never heard the explosion(s). Disoriented, he found himself being dragged from the side of the HMMWV by Sergeant by his Improved Outer Tactical Vest then checking him for wounds as he was regaining consciousness. The explosion had blown him into the HMMWV knocking him unconscious. After a few moments, he was able to regain situational awareness and continue the fight. (4) The engagement resulted in more than 10 medals awarded to include four for valor. Approximately 75 percent of the convoy members received combat infantryman badges or combat action badges for their actions. Vehicles and equipment were damaged; however, none of his Soldiers were injured during the engagement. Eight enemy combatants were killed, with an unknown amount wounded. With just over two months in country, this was the most direct action the battalion had seen during OIF Ill. Upon return to FOB Prosperity in Baghdad, his whole body ached from the explosion but, most concerning was his right hip, and he was experiencing some nausea with headaches. He did not have any shrapnel wounds, but he had bruising and some cuts on his right side from his ribs to his hip and thigh. Range of motion in his back and neck were limited due to pain, and he was unbalanced due to headaches and anxiety. He did not seek medical attention until approximately 36 hours after the event on 28 April 2005. When he spoke to Captain (CPT) , Task Force Surgeon, about the pain in his right hip, back/neck, headaches, and about anxiety. He did not tell him in detail about the explosions only that his unit was attacked. This was the first direct-action combat the unit had seen during the OIF Ill deployment and as a commander, he did not want any reason he could be medically redeployed. (5) Motrin, Tylenol, and a little bed rest quickly turned to Percocet and Diazepam for anxiety. Over the next eight months, he saw CPT weekly or less about hip/back pain, headaches, and anxiety. He attempted numerous times to redeploy him due to his hip injury, but he was able to talk him out of going to his commander about it. Throughout the 2005 deployment, his company executive officer, who was also present on the day of the ambush, carried him to the battalion aid station for Demerol injections for hip pain. After a brief period, he was taking 8-10 Percocet and 2-4 Diazepam daily during OIF Ill. Upon redeployment, pain was managed with opioids and multiple non- surgical options were attempted between 2006 and the dates of each surgery. His hip was replaced in 2010 after a five-year opioid pain management plan that peaked at 180 mgs of OxyContin daily. His neck was fused twice, once in 2018 and in 2019. He was medically separated in part due to his hip, neck, and TBI injuries. d. Permanent Orders Number 205-97 dated 24 July 2005 awarded him the Combat Action Badge for actively engaging or being engaged by the enemy on 26 April 2005. e. A DA Form 199 shows a PEB, which convened on 6 April 2022, found the applicant physically unfit with a rating of 90 percent and that his disposition be permanent disability retirement. The PEB found the disability disposition is based on disease or injury incurred in the line of duty in combat with an enemy of the United States and as a direct result of armed conflict or caused by an instrumentality of war and incurred in the line of duty during a period of war. The disability did result from a combat-related injury under the provisions of 26 United States Code 104 or 10 United States Code 10216. 6. The applicant further provides a four-page statement dated 15 June 2022, wherein he claims, in part: a. His wounds sustained on 26 April 2005 were the direct result of the enemy. His battalion surgeon conducted an initial exam, then almost daily for nine months he treated and monitored his wounds in Iraq. How he was medicated in 2005 could not happen in today's environment. The 2005 environment was different. It was a war with Soldiers under stop loss, fought with "dumpster-armored" HMMWVs, opioid treatment plans, lost paper medical records, and without TBI screening plans. b. His commanding general approved his Purple Heart nomination based on Army Regulation 600-8-22 guidance and the statements surrounding the events of 26 April 2005 when his combat injuries were initially sustained by the enemy. In his opinion, AHRC Awards Branch did not consider all regulatory guidance nor conduct a thorough review of his Purple Heart nomination packet before disapproving. Circumstances were not taken into consideration and a premature disapproval for mTBI was made. c. The AHRC disapproval is primarily focused on mTBI Purple Heart criteria. Only the battalion surgeon's initial exam conducted approximately 36 hours after the event is mentioned in the one-page decision memo. The AHRC memo fails to mention a need for a hip replacement as a result of enemy engagement as stated in the battalion surgeon's statement nor does the memo address the continued care or medication received from May 2005 – January 2006 which results in a total hip replacement as a direct result of injuries caused by "patient was involved in enemy attack" from doctor _'s statement. The supporting eyewitness account statement from LTC also isn't mentioned in the AHRC Memo; "I personally witnessed multiple mortar rounds (2-3) impact within 10-15 meters of his vehicle as he dismounted his vehicle to engage enemy forces. The explosive blast of the impacts was such that his HUMMWV door was violently slammed into him, crushing him between the door and vehicle's frame." d. Army Regulation 600-8-22 is improperly quoted as the justification for disapproval where AHRC quotes the regulation in the attached memo (Decision), "mTBI that does not result in loss of consciousness (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." That is not what the regulation states, AHRC omits a very key part of the regulation criteria, "from the time of the concussive incident." In the applicant's specific incident, he saw his battalion surgeon approximately 36 hours after the "concussive incident" at which time he gave him 48 hours quarters due to continuing headaches and pain from injuries sustained as a result of the enemy attack. Additionally, TBI symptoms like "headaches, nausea, unbalanced, ringing in the ears, unconsciousness" are symptoms of TBI in statements, including the battalion surgeons', but not mentioned in AHRC's memo. If fact, the AHRC memo states, "it does not appear he was treated for mTBI" although "headaches, nausea, unbalanced, ringing in the ears, unconsciousness" are repeatedly mentioned in statements. Headaches is the specific reason stated for the 48 hours quarters as well as follow on treatment and exams are included in the battalion surgeon's statement. Doctor also addresses headaches again in follow-on treatment, "patient follow up-saw patient weekly May-Aug. Hip pain has increased, meds increased to opioids for pain management, headaches are intermittent, anxiety treated with Diazepam." e. The AHRC memo also states, "Further, we cannot utilize post-deployment medical documentation, such as the provided Informal Physical Evaluation Board Proceedings, to justify a retroactive award of the Purple Heart." He could not find an Army Regulation that states you cannot utilize post-deployment medical documentation, such as the provided Informal PEB Proceedings, to justify a retroactive award of the Purple Heart as indicated. Directly from Army Regulation 600-22-8, paragraph 2-8g: The Purple Heart application will include the following documents: "Alternatively, other official documentation may be used to corroborate the narrative;" The DA Form 199 is official documentation, and it clearly corroborates his combat related injuries. It clearly articulates three injuries, TBI, total hip replacement, and two neck fusions that are a direct result of enemy actions from the 26 April 2005 event and the medical treatment he has received from that date to the present, to include three surgeries. It is difficult to understand how this medical information cannot be utilized. f. If the Purple Heart truly differs from all other decorations, evidence shows criteria has been met and the Purple Heart should not be disapproved because original medical records have been lost. There is no question the wounds sustained were the result of enemy action and they were treated by a medical officer. Per Army Regulation 600-8- 22, "It is not intended that such a strict interpretation of the requirement for the wound to be caused by direct result of hostile action be taken that it would preclude the award being made to deserving personnel. Commanders must take into consideration the circumstances surrounding a wound. Note the following examples: an individual injured as a result of a vehicle accident caused by enemy fire, the decision will be made in favor of the individual and the award will be made." g. He also provides numerous quotes for reference culled from the three statements in the Purple Heart nomination packet. 7. Army Regulation 600-8-22 contains the regulatory guidance pertaining to entitlement to the Purple Heart and requires all elements of the award criteria to be met. There must be proof a wound was incurred as a result of enemy action, that the wound required treatment by medical personnel, and that the medical personnel made such treatment a matter of official record. Additionally, when based on a TBI, the regulation stipulates the TBI, or concussion must have been severe enough to cause a 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. 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 warranted. The applicant's contentions, the military record, and regulatory guidance were carefully considered. 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. Based upon a preponderance of evidence, the Board determined that he met the criteria for award of the Purple Heart. 2. 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 :X :X :X GRANT FULL RELIEF : : : GRANT PARTIAL RELIEF : : : GRANT FORMAL HEARING : : : DENY APPLICATION BOARD DETERMINATION/RECOMMENDATION: The Board determined the evidence presented is sufficient to warrant a recommendation for relief. As a result, the Board recommends that all Department of the Army records of the individual concerned be corrected by amending his DD Form 214 for the period ending 29 June 2022 by awarding him the Purple Heart. 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 that 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 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 clearly do not justify award of the Purple Heart include post-traumatic stress disorders, hearing loss and tinnitus, mTBI or concussions that do not either 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. Army Directive 2011-07 (Awarding the Purple Heart), dated 18 March 2011, provides 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 mTBI and concussive injuries that do not result in a LOC). 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 they 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, United States 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 Special Forces 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 award of the Purple Heart: (1) Diagnosis of concussion or mTBI; (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 axial tomography) or magnetic resonance imaging 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. 4. 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) AR20220008420 1 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1