IN THE CASE OF: BOARD DATE: 14 July 2022 DOCKET NUMBER: AR20220002757 APPLICANT REQUESTS: to be awarded the Purple Heart (PH). He also requests a personal appearance via video or telephone. APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: * DD Form 149 (Application for Correction of Military Record) * Human Resources Command (HRC) Awards Branch denial letter, 30 September 2021 * DD Form 214 (Certificate of Release or Discharge from Active Duty) * Narrative for PH * Orders 219-586, 7 August 2009 * Sworn Statements * Department of Veterans Affairs (VA) letter, 21 September 2015 * Post-Deployment Health Assessment (PDHA) * Medical records * Pictures FACTS: 1. The applicant did not file within the three-year time frame provided in Title 10, United States 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 he is asking the Board to consider the award of the Purple Heart for traumatic brain injury (TBI) received from an improved explosive device (IED) in Iraq in support of Operation Iraqi Freedom in June of 2010. He has been diagnosed with TBI, balance issues and migraine headaches by the Army and the DVA. a. He was diagnosed with a TBI and a concussion due to an IED in Iraq. He was not aware or the symptoms of a TBI and tried to do his duty a best as best he could with the headaches and slight balance issues. At the COP (combat outpost) he was posted to in Iraq he only had an aid station and no doctors, only medics. He was seen by the medics after the IED and showed signs of a TBI. b. Witness reports stated he had been helped out of the exploded vehicle and vomited after the IED. The MACE (Military Acute Concussion Evaluation) report shows he had headaches, nausea, and ringing in ears. He was put on a one-week quarters for TBI and given Motrin for the headaches. The IED happened so close to his unit’s return to the US he had no time to see a medical doctor. c. He reported on his post-deployment assessment he had been in an IED and had a concussion. He was sent to TBI clinics upon his unit’s return to the US in August 2010 and was told by a medical doctor in his unit he had a TBI and concussion. This was roughly two months after the incident and in the time afterwards, he was sent to sleep clinics and TBI clinics with other Army unit and all agree the IED was the cause of the TBI and concussion. d. His VA records also show a disability rating of 90% due in part to a TBI which is rated as service-connected disabilities. He still has headaches, balance issues and walk with a cane for balance. 3. Having had prior enlisted service in the U.S. Navy. He enlisted in the Texas Army National Guard (TXARNG) on 26 September 2002. He was discharged from the TXARNG on 10 August 2006 for failure to report to Active Duty. 4. He enlisted in the Regular Army on 22 August 2007. He served in Iraq from 7 August 2009 until 21 July 2010. He also served in Afghanistan from 17 March 2012 to 17 September 2012. 5. He was honorably discharged on 16 April 2013 for completion of required active service. His DD Form 214 shows he completed 5 years, 7 months, and 25 days of net active service this period. He was awarded or authorized: * Iraq Campaign Medal with two campaign stars * Army Commendation Medal (3d Award) * Army Achievement Medal (2d Award) * Meritorious Unit Commendation * U.S. Navy E Ribbon * Army Good Conduct Medal (3d Award) * National Defense Service Medal * Afghanistan Campaign Medal with 2 campaign stars * Global War on Terrorism Service Medal * Noncommissioned Officer Professional Development Ribbon * Army Service Ribbon * Overseas Service Ribbon * NATO Medal * Combat Action Badge 6. The applicant provided: a. A narrative for the PH, explaining the events in which he was injured. b. Sworn statements by describing the events that occurred on 10 June 2010. c. Orders 219-586, 7 August 2009, showing he was deployed in support of Operation Iraqi Freedom. d. DVA letter, 21 September 2015, showing his overall combined rating as 70% effective 17 April 2013 and changed to 90% effective 7 January 2015. e. PDHA and medical records that shows his documentation of concussion with loss of consciousness. f. Pictures showing the results from the IED. 7. On 30 September 2021, by letter, the U.S. Army Human Resources Command, Awards and Decorations Branch disapproved his request. An HRC official stated HRC remains unable to authorize the requested award for issuance. As stated multiple times in previous correspondence, in the absence of military medical documentation from immediately after or close to the event reflecting a diagnosis of and qualifying treatment for a qualifying injury (i.e., a concussion or mild TBI), we cannot verify whether you meet the regulatory criteria governing award of the Purple Heart. 8. By regulation (AR 600-8-22), to be awarded the Purple Heart, the regulatory guidance 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 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. 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 noted the absence of military medical documentation from immediately after or close to the event reflecting a diagnosis of and qualifying treatment for a qualifying injury for award of the Purple Heart. The Board determined the available evidence is insufficient to confirm the applicant incurred an injury that met the published criteria for award of the Purple Heart for a TBI. 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, United States 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) 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 begins its consideration of each case with the presumption of administrative regularity, which is that what the Army did was correct. a. The ABCMR is not an investigative body and decides cases based on the evidence that is presented in the military records provided and the independent evidence submitted with the application. The applicant has the burden of proving an error or injustice by a preponderance of the evidence. b. 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. 3. AR 600-8-22 (Military Award) 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. 4. Military Personnel (MILPER) Message Number 11-125, issued by the U.S. Army Human Resources Command, dated 29 April 2011, stated the Secretary of the Army had approved Army Directive 2011-07 (Awarding the Purple Heart). The directive 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 mild traumatic brain and concussive injuries that do not result in a loss of consciousness). The U.S. Army Human Resources Command has verified that award of the Purple Heart for a TBI injury is retroactive only to 11 September 2001. //NOTHING FOLLOWS// ABCMR Record of Proceedings (cont) AR20220002757 1 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1