IN THE CASE OF: BOARD DATE: 23 August 2023 DOCKET NUMBER: AR20220011884 APPLICANT REQUESTS: reconsideration of his previous request for entitlement for award of the Purple Heart. APPLICANT'S SUPPORTING DOCUMENT(S) CONSIDERED BY THE BOARD: * DD Form 149, Application for Correction of Military Record * Tab B - DA Form 4187, Personnel Action * Tab C - U.S. Army Human Resources Command (HRC) denial of original Purple Heart request with subsequent email traffic and Memorandum for Record * Tab D - U.S. Post Office delivery confirmation to the U.S. Army Review Board Agency (ARBA) of the original request for award of the Purple Heart * Tab E - Email correspondence with ARBA Inquiry Mailbox * Tab F - Narrative on Qualifying Incident * Tab G - Moderate Traumatic Brain Injury (TBI) diagnosis * Tab H - TBI diagnosis from Neurology/prescription for migraine medication * Tab I - Department of Veterans Affairs (VA) TBI Rating Decision Letter * Tab J - TBI diagnosis from primary care manager (PCM) * Tab K - Chain of Command endorsement letter * Tab L - Deployment Orders * Tab M - Officer Record Brief (ORB) * Tab N - Witness Statements * Tab O - Combat Badge Narrative of Qualifying Incident * Tab P - Area of Operations Assessments * Tab Q - Improvised Explosive Device (IED) Attack Overview * Tab R - Walter Reed TBI Study email correspondence * Tab S - Combat Outpost (COP) Photos * Tab T - Officer Evaluation Report (OER) * Tab U - End of Tour Award * Tab V - United Kingdom Award * Tab W - Migraine Log Excerpt * Tab X - Additional Medical History 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 AR20210005029 on 29 November 2021. 2. The applicant indicates his request is related to a TBI. He contends that his application for award of the Purple Heart should be approved because he meets the criteria for the award based on the following: a diagnosis of a moderate TBI, linked by the Brain Injury Rehabilitation Clinic diagnosis at a Brooke Army Medical Center (BAMC); a service-connected disability rating from the VA for a TBI with post traumatic encephalomalacia, hypogeusia, anosmia and tinnitus; and treatment in the form of the prescription medication Rizatriptan for service connected migraines; and treatment with Speech Pathology at the Brain Injury Rehabilitation Clinic at BAMC. The AHRC recently denied his application for the Purple Heart stating his medical record did not document diagnosis and treatment. He provides the following new argument, he states, in effect: a. If awarded the Purple Heart, the award should be backdated to reflect the date of injury/award – 4 August 2008. He contends that the Army Regulation (AR) 600-8-22, Military Awards, used to determine the validity of his entitlement for award of the Purple Heart should be the one in effect at the time of his injury (11 December 2006), not the current version used ex post facto by the ARBA during his initial application. b. In the Board’s denial of his original application the Record of Proceedings stated in paragraph 5, "the regulation stipulates the TBI, or concussion must have been severe enough to cause a LOC [loss of consciousness]; 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." This requirement listed in the current version of AR 600-8-22 and adds requirements that did not exist at the time of his injury. Therefore, the requirement should not be used when determining the validity of his request. c. There are two references listed in the Record of Proceedings - AR 600-8-22, and Army Directive 2011-07. The version of AR 600-8-22 used by the Board is dated 5 March 2019 and Army Directive 2011-07 is dated 2011. These references came into effect years after the date of his injury and cite additional requirements not in effect at the time of his injury, and therefore, should not have been used during consideration of his request by the Board. d. AR 600-8-200, Appendix 2, 11 December 2006, prescribes in: (1) Paragraph 2-8b(4) that the Purple Heart is awarded for being wounded, "As the result of an act of any such enemy of opposing Armed Forces." (2) Paragraph 2-8d that "A Purple Heart is authorized for the first wound suffered under conditions indicated above ... " One of the conditions listed under this line number is listed in the above line in this memorandum. (3) Paragraph 2-8g gives examples of "enemy-related injuries which clearly justify award of the Purple Heart" as "Injury caused by enemy placed mine or trap" in paragraph 2-8g(2) and specifically, "Concussion injuries caused as a result of enemy generated explosions" in paragraph 2-8g(5). (4) There are no further references to concussion injuries. 3. A review of the applicant's military record shows he served as a commissioned officer in the Regular Army from 31 May 2000 until he was honorably retired on 31August 2020. 4. He served in the following combat/overseas areas as an infantry officer: * Iraq, 28 March 2003 to 28 March 2004 * Iraq, 3 December 2005 to 3 December 2006 * Iraq, 6 June 2011 to 18 May 2012 * Djubouti, 21 May 2015 to 20 May 2016 5. On 2 April 2020, the HRC disapproved the applicant’s request for entitlement to the Purple Heart. The HRC official stated, "After a thorough review of the information provided and consultation with the U.S. HRC Office of the Surgeon General, the award of the PH for this particular event does not meet the statutory guidance outlined in AR 600-8-22, Military Awards, paragraph 2-8c. The medical documentation provided does not indicate diagnosis of and treatment for a qualifying injury." 6. The applicant provides: a. An undated narrative description of the incident (unknown author). The narrative states, in effect, on 4 August 2008, while returning to the COP in Iraq, a patrol from Company B, 2nd Battalion, 7th Cavalry Regiment was struck by an IED consisting of daisy-chained 155 mm artillery shells. The IEDs were located approximately five to ten meters to the south of the road and detonated directly next to High Mobility Multipurpose Wheeled Vehicle (HMMWV) bumper number B6 (the lead vehicle in the patrol) and HMMWV bumper number B2 (the trail vehicle in the patrol). The applicant’s vehicle sustained moderate damage with the ballistic glass on the TC side door (front- where the applicant was seated) shattered, and the TC side mirror and the mirror mount were destroyed. Additionally, the TC side of the HMMWV sustained multiple burn marks; however, the side armor was not penetrated by the blast. The applicant, and two other Soldiers received moderate TBIs in the form of concussions with alterations in level of consciousness accompanied by sustained extended periods of amnesia during the incident. These personnel were treated for concussions following the blast by medical personnel as thoroughly as the remote location allowed and were not sent on patrols again for a period of four days. All personnel who had not previously earned the Combat Infantryman Badge or Combat Action Badge were awarded their appropriate badges based of this IED attack. b. A Narrative – Combat Infantryman's Badges/Combat Action Badges, 8 August 2008, written by the applicant (company commander) wherein he described the IED incident and recommended that all the crewmembers involved receive either the Combat Infantryman Badge or the Combat Action Badge. He did not indicate any injuries occurred during the incident. He states, "After the blast [he] checked the status of two Soldiers to ensure no one was injured; however, he could not initially check the remainder of the patrol or radio the company QRF due to the ASIP radio being not functional after the blast. [He] and SPC R dismounted the M1114 HMMWV, bumper number B6 and conducted 5-meter, 25 meter and 200 meter searches, looking for secondary devices and potential triggermen. During these searches, [he] discovered the copper wire, which the triggerman used to initiate the detonation. " The 2nd Platoon arrived to provide additional security at the blast site. Members from the platoon joined the applicant and SPC R and continued with his squad to the IED initiation site. c i. Maps of the patrol area and the area of the IED explosions with labels. d. A DA Form 4187, 10 January 2020, which shows the applicant submitted a request for award of the Purple Heart for an incident on 4 August 2008, in Iraq when he sustained a mild TBI concussion caused by daisy chained 155 mm shells in an IED attack. His company commander and battalion commander recommended approval on 13 February 2020. e. An endorsement for entitlement for award the Purple Heart, 13 February 2020. This document shows that a general officer fully supported the award of the Purple Heart to the applicant. This officer indicated, in effect, that he believed without a doubt that the applicant sustained a concussion through proximity to the blast and witness statements describing the incident. Although there was no medical documentation of a neurology exam or diagnosis after the incident, a witness statement from the medic describes signs and symptoms consistent with a concussion, some loss of consciousness and recommendation for duty restriction. The statement further indicates that the applicant would have seen a healthcare provider for further diagnosis if on had been available. Further the neurology report from an MRI on 25 October 2019 suggests modest flare imaging in the frontal lobes compatible with TBI that could be connected to a TBI the applicant had ten years ago. f. A memorandum, 2 April 2020, from the HRC denying applicant’s request for award of the Purple Heart. g. Email correspondence which shows that on 8 April 2020 the applicant requested HRC clarify what additional documentation was needed for his application for entitlement of the Purple Heart. On 9 April 2020, the Project Director, Awards and Decoration Branch, responded stating per AR 600-8-22, paragraph 2-8 their office was unable to approve the Purple Heart for the 4 August 2008 IED blast. This official further stated: "Concussions qualify for the PH, so long as there is both diagnosis and treatment documented by a medical officer. The same is true for traumatic brain injuries (TBI), but the Soldier's record must reflect some corresponding diagnosis and/or treatment near the time of the enemy action in order to connect the TBI to enemy causation. Post-traumatic stress and other psychological conditions do not qualify for the PH. The PH may be awarded with little or no supporting documentation, so long as the approval authority is able to verify the injury and enemy causation (casualty reports are usually sufficient in a combat theater) and the injury/treatment is entered into the Soldier's medical record. Having stated the above, based on the documents submitted and available to this office, we acknowledge you were seen by a medic on site after the incident, that you did not have any physical injuries but did complain of post-incident amnesia. The medic stated that because of the environment, the Soldier could not be assessed further by a physician or unit PA. The first note in AHLTA after the incident was dated May 2009 while you were in theater; furthermore, you denied LOC, head injury, amnesia, and denied being diagnosed with a concussion. It was not until 2018 that the potential TBI sequelae was identified." g. A Memorandum for Record, Statement for Purple Heart Application, 22 June 2020. In this memorandum the applicant stated, in effect, that upon being denied the award of the Purple Heart he was informed by AHRC, that the diagnosis and treatment must be "near the time of the enemy action." This requirement is not found in AR 600-8- 22 or MILPER Message 11-125. The statutory time limits pertaining to award of military decorations does not apply to the Purple Heart. It may be awarded at any time after submission of documented proof that criteria have been met. He contends the diagnosis of a moderate TBI from the Brain Injury Rehabilitation Clinic and the treatment in the form of Rizatriptan for the chronic migraines, and ongoing treatment with Speech Pathology meet both the diagnosis and the treatment criteria. h. Statement for Purple Heart Application, 22 June 2020. In this memorandum the applicant stated, in effect, that the lack of radio and satellite communications caused all official message traffic, situation reports, and enemy contact reports to be delivered in person weekly by either the commander or first sergeant. However, there was no regulatory requirement to submit a casualty report as part of a request for award of the Purple Heart. The IED attack was entered into the battalion’s Command Post of the Future two weeks later, and once he was able to travel back to the FOB. On 5 August the applicant drafted memorandums for the Combat Infantryman Badge and Combat Action Badge for the Soldiers in the patrol. i. A Witness statement from the medic who treated the applicant’s injury on 4 August 2008. This individual confirmed that he arrived at the accident scene after the crew had dismounted and conducted a search for additional explosives. The crew was disoriented to the specific time and the applicant, and his crew complained of headaches, dizziness, tinnitus, blurry vision, photophobia, nausea, and neck pain. His assessment was probable concussion as the situation did not allow for further workup. He recommended the crew take Tylenol for pain and to initiate concussion protocol. The witness further stated, in effect, that his assessment and training at the time could not rule out more dangerous conditions such as intracranial bleed, TBI, cerebral contusions. Ideally a CT scan or MRI at that time would have been more helpful. He subsequently saw the vehicle involved in the explosion and it had notable damage to the passenger side including peppering of the armor and a destroyed side mirror. j. A statement from a senior medical officer who oversaw the medic that rendered aid to the applicant and endorsed the medic’s statement. The medical officer stated that due to the demands on leadership and operational tempo, it appears the applicant referenced in the medic’s letter may not have had a full work up at the time but clearly has a legitimate mechanism of injury and proper initial evaluation of his symptoms which were consistent with a concussion. k. Several additional witness statements reported that the applicant and another Soldier dismounted their vehicle after the blast and were found wandering down a side road following a copper wire. These witnesses indicated that the applicant had trouble hearing and he was disoriented after the blast. l. His sworn statement, 22 June 2020, wherein he indicated, in effect, that after the blast he did not remember speaking with anyone, with the exception the one Soldier who stated "Captain, they are trying to kill you." He also did not remember how he got back to the COP. After the blast he became extremely nauseated, disoriented, and developed a severe headache. At the time he was unaware of the signs or symptoms of TBI or concussion, and he did not remember being treated by the medic. As the company commander, it was his responsibility to ensure the safety of his crew and his Soldiers, and had he not been disoriented by the post blast concussion, his place would have been ensuring that his patrol had re-established security and calling on the resources of his company for assistance. He did not seek treatment until years later in 2018 when he provided another Soldier a statement in support of his VA claim. He found that the symptoms he suffered for 12 years were due to mild TBI and post- concussion syndrome. m. Medical records which show that between September 2019 and June 2020 the applicant: * underwent an MRI scan of his brain that showed only modest flare imaging changes in the frontal regions compatible with TBI, and this could possibly be due to the TBI he had 10 years ago but it did not merit further workup * was treated for memory problems, severe headaches, hearing difficulty, sensitivity to noise, change in smell, moderate dizziness poor coordination, nausea, blurred vision, sensitivity to light, poor concentration, slowed thinking, fatigue, sleep issues, feeling depressed/irritable, mild difficulty with decision making, and poor frustration * was diagnosed with post-concussional on 22 January 2018 * was diagnosis with post-traumatic headache, unspecified, not intractable on 1 October 2019 n. VA Rating Decision, 30 September 2020, which shows the VA determined his TBI with post traumatic encephalomalacia, hypogcusia, anosmia and tinnitus was to be service-connected and he was granted a disability rating of 40 percent, effective 1 September 2020. o. Documents from his military record which include deployment orders, ORB, performance evaluations, Bronze Star Medal certificate, handwritten notes detailing 15 incidents between February 2020 and June 2020, that he experienced migraine headaches, how long it took to feel relief after taking medication, and the symptoms. p. A copy of AR 600-8-22, 11 December 2006. 7. On 29 November 2021, the Board denied his request. The Board stated 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. In events involving TBI and other similar injuries, the applicant's record must show that the brain injury or concussion severe enough to cause either loss of consciousness or restriction from full duty due to persistent signs, symptoms, or clinical finding, or impaired brain function for a period greater than 48 hours from the time of the concussive incident. After reviewing the application and all supporting documents, the Board found insufficient medical evidence to meet the regulatory standard for the Purple Heart and thus recommended denying the request. 8. AR 600-8-22 contains the regulatory guidance pertaining to entitlement to the PH 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. 9. Army Directive 2011-07 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). This policy was retroactive to 11 September 2001. BOARD DISCUSSION: 1. After reviewing the application, all supporting documents, and the evidence found within the military record, the Board found that relief was not warranted. The Board carefully considered the applicant's record of service, documents submitted in support of the petition and executed a comprehensive and standard review based on law, policy and regulation. Upon review of the applicant’s petition and available military records the Board determined there is no medical record showing the applicant received wounds caused by enemy forces that required treatment by medical personnel. The burden of proof rest on the applicant and the applicant provided no new evidence to support his claim for award of the Purple Heart. The Board agreed there was insufficient evidence that showed the applicant’s name on the casualty listing or notification to his family that he had been wounded. Based on this the Board found that a reversal on the previous request for award of the Purple Heart is unwarranted. 2. 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. 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. After reviewing the application and all supporting documents, the Board found insufficient medical evidence to meet the regulatory standard for the Purple Heart and thus recommended denying the request. ? 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 AR20210005029 on 29 November 2021. 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 (AR) 600-8-22, Military Awards, 11 December 2006, states 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. a. 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 by medical personnel and records of medical treatment for wounds, or injuries received in action must have been made a matter of official record. b. When contemplating an award of this decoration, the key issue that commanders must take into consideration is the degree to which the enemy caused the injury. The fact that the proposed recipient was participating in direct or indirect combat operations is a necessary prerequisite, but is not sole justification for award. c. Examples of enemy-related injuries which clearly justify award of the Purple Heart include injury caused by enemy bullet, shrapnel, or other projectile created by enemy action, injury caused by enemy placed mine or trap, injury caused by vehicle or aircraft accident resulting from enemy fire, and concussion injuries caused as a result of enemy generated explosions. 3. This same regulation states for award of the Combat Infantryman Badge there are basically three requirements. 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. 4. AR 600-8-22, dated 5 March 2019, provides in- a. Paragraph 2-8f, some examples of enemy-related actions, which justify eligibility for the Purple Heart. The examples include concussions (and/or mild traumatic brain injury (mTBI)) caused as a result of enemy-generated explosions that in either loss of consciousness, or restriction from full duty due to persistent signs, symptoms, or clinical finding, or impaired brain function for a period greater than 48 hours from the time of the concussive incident. b. Paragraph 2-8j, the following nonexclusive examples of medical treatment for mTBI or concussion that meet the standard of treatment necessary for award of the Purple Heart - * Referral to neurologist or neuropsychologist to treat the diagnosed mTBI or concussion * Rehabilitation (such as occupational therapy, physical therapy, and so forth) to treat the mTBI 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 mTBI or concussion 5. Army Directive 2011-07 (Awarding the PH), 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 AR 600-8-22 to reflect the clarifying guidance. This policy was retroactive to 11 September 2001 in compliance with Under Secretary of Defense (Personnel & Readiness) Memorandum, Subject: Department of Defense Baseline Standard for award of the Purple Heart medal for mTBI's and concussion injuries not resulting in a LOC, dated 25 April 2011. a. Approval of the PH 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 PH 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 PH 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 PH: (1) Diagnosis of concussion or mild TBI; (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 MRI scan). g. The following nonexclusive list provides examples of medical treatment for concussion that meet the standard of treatment necessary for award of the PH: (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. 6. AR 15-185 (ABCMR) prescribes the policies and procedures for correction of military records by the Secretary of the Army, acting through the ABCMR. The ABCMR will decide cases on the evidence of record. It is not an investigative body. //NOTHING FOLLOWS// ABCMR Record of Proceedings (cont) AR20220011884 1 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1