IN THE CASE OF: BOARD DATE: 30 September 2022 DOCKET NUMBER: AR20220003416 APPLICANT REQUESTS: through counsel, in effect, reversal of the U.S. Army Human Resources Command denial of his entitlement to the Purple Heart (PH). He also requests a personal appearance hearing before the Board. APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: * DD Form 149 (Application for Correction of Military Record) * 17-page Brief in Support of Application with Exhibits A – W, minus H * Exhibit A: Applicant's Statement * Exhibit B: DD Form 214 (Certificate of Release or Discharge from Active Duty) * Exhibit C: Buddy Statement (Sergeant (SGT) * Exhibit D: Buddy Statement (Specialist (SPC) * Exhibit E: Applicant's Deployment Record * Exhibit F: Combat Action Badge (CAB) * Exhibit G: Enlisted Record Brief (ERB) * Exhibit H: Missing * Exhibit I: Applicant's Medical Documents * Exhibit J: Applicant's Department of Veterans Affairs (VA) Documents * Exhibit K: DA Form 199 (Informal Physical Evaluation Board (PEB) Proceedings) * Exhibit L: Army Board for Correction of Military Records (ABCMR) Record of Proceedings, Docket Number AR20140010453 * Exhibit M: Applicant's Application for the PH, 24 February 2020 * Exhibit N: U.S. Army Human Resources Command (AHRC) Opinion, 12 May 2020 * Exhibit O: ABCMR Record of Proceedings, Docket Number AR20170009006 * Exhibit P: ABCMR Record of Proceedings, Docket Number AR20170008863 * Exhibit Q: * Exhibit R: Extract of Army Regulation 600-8-22 (Military Awards) * Exhibit S: AHRC Denial, 8 July 2020 * Exhibit T: AHRC Surgeon General Opinion * Exhibit U: Freedom of Information Act (FOIA) Request, 23 July 2020 * Exhibit V: ABCMR Record of Proceedings, Docket Number AR20190002061 * Exhibit W: ABCMR Record of Proceedings, Docket Number AR20080001504 FACTS: 1. Counsel states, in effect: a. On 21 July 2013, while on a routine patrol during his deployment in Afghanistan, the applicant was injured by an improvised explosive device (IED), which detonated directly under his Mine Resistant Ambush Protected vehicle (MRAP). The applicant was temporarily rendered unconscious for a period of thirty seconds, suffering a traumatic brain injury (TBI) as a result of the IED explosion. The applicant required treatment immediately following the IED blast, and the months after he returned from his deployment, he began to notice continuous symptoms consistent with a TBI. During the Integrated Disability Evaluation System (IDES) process, he was diagnosed with a TBI resulting from an enemy action. Further, the VA assigned him a 10 percent disability rating for his TBI. The applicant applied for the PH with AHRC on 24 February 2020. He offered evidence showing that each of the criteria was met; however, they denied his request on 12 May 2020, because his TBI was not of significant severity to warrant a PH. b. At the start of his deployment, the applicant did not have a pre-existing brain injury. Throughout his deployment, he would "ruck march over 100 miles collectively" as his "work involved either dismounted patrols or mounted patrols through the terra in southern Afghanistan, Kandahar province." In July of 2013, he was conducting a mounted patrol, when the MRAP he was operating hit an IED buried by the enemy in a culvert. The IED explosion lifted the entire back end of his MRAP, which first caused his face to smash into the Driver's Vision Enhancer (DVE) on the dashboard and then thrust him backward. The blast resulted in a temporary loss of consciousness (LOC) (approximately thirty seconds), a concussion, and a TBl. On 21 July 2013, immediately following the IED blast, he required treatment at Forward Operating Base (FOB) Pasab. His treatment was documented by a health record in which the treating emergency physician similarly described the incident, writing that his "Convoy stopped to clear culvert with mine hound" but a few seconds after passing over the culvert "an IED went off'' under [the applicant's vehicle and caused him to "lurch forward and hit his head on the DVE." c. After conducting a neurological exam, the physician made his command aware of his conditions and recommended restriction to quarters for 48 hours. Two soldiers who served with the applicant in Afghanistan further corroborate the circumstances of the IED blast. SGT lived in the same tent as the applicant and was "exposed to IED blasts and enemy gunfire" alongside him. He recalls the occasion when [the applicant's] vehicle "was struck by an IED." The applicant's teammate, SPC likewise "affirm[ed] that while he was deployed with [the applicant] in Kandahar, Afghanistan in 2013," the applicant "was subjected to an IED blast while riding inside of a military vehicle in July 2013." Although both Soldiers' witness statements were given for the purpose of corroborating a back injury sustained by [the applicant] in the same incident, both of them confirm that he was involved in an IED blast while deployed in July 2013. d. On 4 April 2016, his Primary Care Manager requested initiation of a Medical Evaluation Board (MEB) after tests showed the applicant did not meet retention standards for degenerative disk disease. The applicant executed a VA Disability Evaluation Board Claim on 4 May 2016. Accordingly, a Compensation and Pension Examination (C&P Exam) was conducted on 24 May 2016 and signed as complete on 5 June 2016. The C&P exam was outsourced to a QTC examiner rather than a VA medical professional and specifically conducted by a family practitioner. He attached separate disability benefits questionnaires (DBQs) for each diagnosis to include TBI. e. On 23 May 2016, Dr. completed one of the DBQs entitled "Initial Evaluation of Residuals of TBI," affirming the applicant's previous diagnosis of a TBI due to the 21 July 2013 IED incident. The medical history section of this evaluation contains a specific account of the IED explosion incident, including that he suffered "[LOC] for about 30 seconds, [his] last memory before blast is driving after clearing the inside of the culvert, then seeing a line being pulled up in the sand to the left; next memory is sitting there in the truck after the blast, recognizing there must have been a blast .. ; then was dazed for a couple hours; had a headache over the right side of his head, and his face was bleeding." The medical history section goes on to recount the medical care he required immediately after the blast. "He was taken to a medic, given a Military Acute Concussion Evaluation (MACE), was put on rest, did not need sutures. No mission for about a week. He was having headaches, light sensitivity and was hard to sleep and very thirsty for that week." Finally, the DBQ explains the continuing symptoms the applicant "noticed months after he returned from deployment in December 2013. These symptoms included mild memory loss, mildly impaired visual spatial orientation, mild headaches, one or more neurobehavioral effects, occasionally impaired comprehension or expression, and a functional impact on work ability. f. The applicant separated from the Army in 2016 following a finding by the PEB that he was unfit for duty due to lumbar degenerative disc disease. His IDES Narrative Summary indicated a diagnosed TBI. Following his separation, he filed an original disability claim with the VA that was received on 31 December 2016. The VA issued a Rating Decision on 10 January 2017 that assigned service connection for 11 conditions, including TBI with an evaluation of 10 percent, Post-Traumatic Stress Disorder (PTSD) with an evaluation of 50 percent, and post-traumatic headaches with an evaluation of 30 percent. Significantly, the VA rated his TBI and headaches separately from his PTSD, and not as symptoms. g. AHRC denied his request for the PH on 12 May 2020, because his injury "was not of significant severity to warrant award of the PH. This opinion begins with the language "[w]hen considering award of the PH for a mild Traumatic Brain Injury (mTBI) or concussion that did not result in the LOC ... " Thus, the AHRC opinion indicates that he never experienced LOC and goes on to state, "[t]here is no indication ... that [the applicant] was restricted from full duty for 48 hours due to persistent signs or symptoms" of his TBI. After being denied access initially, [the applicant] submitted a FOIA request for and received the AHRC Surgeon General's opinion. This opinion states: "In [the applicant's] case, there is a diagnosis of a TBI on 22 July 2013, but there was no LOC. While [the applicant] was placed on quarters for 48 hours, it was NOT due to persistent signs or symptoms." h. Counsel states the requirements for the PH as established in Executive Order 110116 and Army Regulation 600-8-22. Generally speaking, each approved award of the PH must exhibit each of the three following factors: (1) a "[w]ound, injury, or death must have been the result of enemy or hostile act. .. "; (2) "[t]he wound or injury must have required treatment by medical officials"; and (3) "[t]he records of medical treatment must have been made a matter of official Army records." Regarding the second factor, enemy-related actions which justify eligibility for the PH include: "[i]njury caused by enemy emplaced trap, mine or other improvised explosive device" or "[c]oncussions (and/or mTBI caused as a result of enemy-generated explosions that result in either LOC or restriction from full duty…for a period greater than 48 hours from the time of the concussive incident." i. Further, the AHRC Adjutant General Directorate guidance requires the presence of "both diagnostic and treatment factors ... documented in the Soldier's medical record by a medical officer." Examples of signs, symptoms, and medical conditions that meet the standards for award of the PH include "[d]iagnosis of concussion or mild brain injury"; "[a]ny period of loss or a decreased level of consciousness"; "[a]ny loss of memory for events immediately before or after the injury"; or "neurological deficits ... headaches, nausea, difficulty with understanding or expressing words, sensitivity to light, and so forth." Similarly, examples of medical treatment that meet the standard for award of a PH include "Referral to neurologist or neuropsychologist to treat the injury"; "Rehabilitation ... to treat injury"; or "[r]estriction from duty for a period of greater than 48 hours due to persistent signs, symptoms, or physical finding or impaired brain function. j. The applicant's TBI occurred "in [an] action against an enemy of the United State "and was a "concussion injur[y] caused as a result of enemy generated explosions." The ABCMR has determined that permanent orders showing that a servicemember was awarded the Combat Action Badge (CAB) for engaging or being engaged by the enemy are "sufficient as a basis for granting the applicant award of the PH." The applicant received permanent orders dated 17 December 2013, showing that he was awarded the CAB for "personally engaging, or being engaged by the enemy" on 21 July 2013. In addition to the permanent orders, the medical record dated 21 July 2013 diagnosed him with a "concussion s/p IED blast" and "[injury from terrorist explosion improvised explosive device]." Thus, there is a record showing the applicant was deployed and was engaged by enemy action. k. AHRC lists several non-exclusive criteria that justify award of the PH. They include: "[d]iagnosis of concussion or mTBI"; "[a]ny period of loss or a decreased level of consciousness"; "[a]ny loss of memory for events immediately before or after the injury"; or "[n]eurological deficits (weakness, los of balance, change in vision, praxis (that is) difficulty with coordinating movements), headaches, nausea, difficulty with understanding or expressing words, sensitivity to light, and so forth that may or may not be transient." The record demonstrates that he experienced several of these criteria that meet the standard for award of the PH. First, the applicant was diagnosed with a concussion and mTBI. He received medical treatment on the same day as the IED incident, where he was diagnosed with a "concussion." Later medical records diagnose him with a TBI. He experienced a period of loss or decreased level of consciousness. Although his early medical treatment after the TBI does not note a LOC, his personal statement as well as the DBQ for TBI completed during the IDES process indicated a LOC immediately after the IED explosion that lasted approximately 30 seconds. Third, the applicant experienced loss of memory for events immediately before and after the injury. His last memory before the blast was seeing a line of sand being pulled up on the left side of his vehicle, and his first memory after the blast was sitting in his vehicle realizing there must have been a blast. There was a gap between these two events during which the blast occurred. Fourth, he experienced documented neurological deficits in the years after the IED blast, such as headaches, occasionally impaired communication and expression, and mildly impaired visual spatial orientation. These neurological deficits were brought on by the TBI he suffered on 21 July 2013, according to his DBQ from May 2016. Furthermore, the VA decision to service-connect him for his post-traumatic headaches and TBI lends additional support to the existence of neurological deficits following his injury. l. The record also demonstrates examples of medical treatment that meet the standard necessary for awarding the PH. The applicant received treatment from the emergency physician at FOB Pasab, who noted that he would "strongly consider mTBI clinic referral if [the] patient fail[ed] to make clinical progress." Additionally, the emergency physician restricted him from duty for 48 hours. Subsequently, he sought treatment at the Army Health Clinic at Schofield Barracks, where the counselor noted a positive TBI screen and that further evaluation was needed. Finally, the medical history summary in the DBQ for TBI confirms that he required medical treatment that satisfies the requirements for a PH. m. The AHRC erred when it denied his application for the PH. The ABCMR has found an applicant to be entitled to the PH in cases factually similar to his application. In AR20190002061, a Veteran suffered a mTBI caused by an enemy-detonated IED. The Veteran was diagnosed with a concussion, placed on limited duty, treated with medication following the event, had reoccurring headaches, and was awarded the CAB for his involvement in this IED explosion. The Veteran was able to provide a letter from a senior combat medic, who stated the Veteran reported being unconscious during the event and manifested concussive-like symptoms. The Veteran also provided witness statements which indicated that the Veteran was diagnosed with a probable concussion and put on light duty for 48 hours. The ABCMR specifically noted that the Veteran did not seek medical care immediately, but he consistently noted his injuries in records since the incident. After reviewing all the evidence, the Board determined there was sufficient evidence to grant relief and agreed that the Veteran was entitled to the PH by a preponderance of the evidence. The ABCMR does not require evidence in excess of what is provided in the applicant's application. In AR20080001504, a Veteran who was driving an Army vehicle was struck by an enemy-detonated IED, which caused a concussion and chronic headaches following the explosion. Yet, there was "no evidence in [the Veteran's] records that he was wounded or treated for wounds as a result of hostile action and the treatment was made a matter of official record." Furthermore, the Veteran was unable to provide any post-IED screening for the Board's review. Nonetheless, the Board concluded that" ... [a] sworn statement, staff duty journal reports, and other official documents are sufficient to establish that the applicant sustained concussion wounds while he served in Iraq." The Board unanimously agreed that the Veteran was entitled to the PH and granted full relief. n. While it is true that the medical officer's report of an injury is significant when determining a Soldier's PH eligibility, when the Soldier's medical history is missing certain aspects of his injury, statements made by other Soldiers that corroborate an injury will be sufficient. When a Soldier's official medical records for the injury are missing information, "undisputed, credible evidence" to support his claim can be used. In a Soldier requested a PH from the ABCMR after he had shrapnel in his leg from an enemy attack. The ABCMR denied the Soldiers request, stating that there was no evidence showing the Soldier was injured. The Soldier submitted a request for reconsideration, adding two Soldier interviews that corroborated his injury, documents that showed his platoon was attacked, and a picture of him injured shortly after the attack. The ABCMR denied his second request stating there was a lack of evidence. The United States Court of Appeals overturned the Board's decision, finding that the totality of the Soldier's evidence supported the receipt of a PH. o. In the applicant's case, eligibility for the PH award hinges on the presence of one of two requirements: (1) a restriction from duty for more than 48 hours due to persistent signs/symptoms of impaired brain function, or (2) a LOC due to the explosion. The AHRC opinion denies the existence of both the restriction of duty for more than 48 hours and a LOC. The AHRC Surgeon General's opinion acknowledges that he was restricted from duty for 48 hours, but the decision goes on to state that this was not due to persisting TBI symptoms. At the same time, the AHRC did recognize the occurrence of a head injury event as well as TBI symptoms such as headaches. However, the AHRC's determination that [the applicant] never lost consciousness will be the focus of attention. p. The AHRC erred when it determined that he did not lose consciousness following the IED explosion. The AHRC made this determination on the basis of his inability to remember his LOC during his initial evaluation; accordingly, his evaluation noted there was no LOC. However, much like the Veteran in AR20190002061 who did not even seek medical care after the explosion, [the applicant] has consistently reported a LOC due to the IED explosion since that time. His testimony of his LOC can be dated back to 2016, in both his DBQ responses and his sworn statement. Furthermore, the fact that his LOC is based on his own testimony does not preclude his entitlement to the PH. The only evidence provided by the Veteran in AR20190002061 regarding his LOC came from his own testimony, and the Board found the Veteran entitled to the PH. The evidence provided by [the applicant] is sufficient to show, by a preponderance of the evidence, that he is entitled to the PH. First, his sworn testimony reports that he lost consciousness for a period of thirty seconds. Second, the witness statements. Third, his DBQ during his separation through the IDES process in 2016 reports a LOC due to the IED explosion. Fourth, the VA's decision to service-connect him for both his TBI and headaches further supports his contention that his head trauma resulted in a temporary LOC. The Veteran in AR20080001504, whom the Board found entitled to the PH, did not provide the level of specificity that [the applicant] is able to provide to substantiate his claim that he was rendered unconscious by the explosion. q. Even though the applicant did not recall his LOC until later, his medical records still indicated that he was injured in the IED blast. He also had two Soldiers corroborate that he was injured and that the incident occurred. In a Soldier was able to show his injury occurred by producing witness statements testifying the attack occurred, even though his medical documents did not show the extent of his injuries. The court found the witnesses in to be credible and the ABCMR had no reason to doubt otherwise. The applicant's witnesses are credible, and their corroboration of his story should justify him receiving a PH. He was able to show through multiple pieces of official and lay evidence that he was injured in action against an enemy of the United States and that his injuries and treatment qualify him for a PH. Thus, the AHCR erred when it made the determination to deny his PH application. r. The evidence provided in his application for the PH award exhibits each of the three factors necessary for approval. First, the applicant's personal statement, accompanying "buddy statements," service treatment records, and previously earned CAB award all demonstrate that [the applicant], a servicemember of the U.S. Army, was wounded by an enemy act on 21 July 2013. Second, his service treatment and PEB evaluation records demonstrate that this injury was of a severity that required treatment by medical officials. "(C]oncussions (and/or mTBI) caused as a result of enemy - generated explosions that result in ... LOC" justify eligibility for the PH award. Third, his service treatment and PEB evaluation records reveal that his concussion, his resulting LOC, and his TBI were made a matter of official Army records. Further corroborating his injury, the VA has since service-connected him for his TBI, assigning a 10 percent disability rating. For all of these reasons, the AHRC erred when it determined to deny him the PH. As a former member of the US Army who fulfills each of the eligibility criteria (source of injury, severity of injury, and official Army records documentation), he respectfully requests that the ABCMR award him the PH. 2. The applicant enlisted in the Regular Army on 14 May 2012. Evidence shows he served in Afghanistan for the period 22 April 2013 to 21 November 2013. On 30 December 2016, he was honorably discharged due to combat related disability. The DD Form 214 he was issued shows he was awarded or authorized the: * Afghanistan Campaign Medal with campaign star * Army Commendation Medal * Army Achievement Medal (2nd Award) * Army Good Conduct Medal * National Defense Service Medal * Global War on Terrorism Service Medal * Army Service Ribbon * Overseas Service Ribbon * Combat Action Badge 3. On 12 May 2020, the Chief, USAHRC, Awards and Decorations Branch (ADB) informed the applicant's representative that his office was unable to authorize award of the PH. Based upon a thorough review of all available military medical documentation, the command determined that the applicant's diagnosis of a concussion following an IED blast on 21 July 2013, was not of significant severity to warrant award of the PH. He further stated, when considering award of the PH for an mTBI or concussion that did not result in the LOC, they must be able to conclusively determine whether such a diagnosed injury resulted in a disposition of "not fit for full duty" by a medical officer for a period of greater than 48 hours based on persistent signs, symptoms, or findings of functional impairment resulting from the concussive event. The following nonexclusive list provides examples of medical treatment for a mTBI or concussion that meets the standard of treatment necessary for award of the PH: referral to neurologist or neuropsychologist to treat the diagnosed mTBI or concussion; rehabilitation (such as occupational therapy physical therapy, and so forth) to treat such an injury; 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. Combat theater and unit command policies, or medical protocols, mandating rest periods, light duty, or "down time", and/or the administration of pain medication (for example, acetaminophen, aspirin, or ibuprofen) in the absence of persistent symptoms of impairment following concussive incidents do not constitute qualifying treatment for a concussive injury. They acknowledge [the applicant] was diagnosed with a concussion during a follow-up visit on 22 July 2013, and placed on quarters for 24-48 hours. There is no indication, however, that he was restricted from full duty for 48 hours due to persistent signs or symptoms. Accordingly, as it does not appear he received qualifying treatment, we cannot verify he meets the regulatory criteria for award of the PH. 4. The applicant provides his Enlisted Record Brief as well as a/an: a. Personal statement dated 11 October 2016, in which he claims, he deployed to Afghanistan in April 2013, with no pre-existing back injury. During his deployment, he ruck marched over 100 miles collectively. Most of his work involved either dismounted patrols, or mounted patrols through the terrain in southern Afghanistan, Kandahar Province. Summer 2013, he was driving an MATV while on patrol to an ANA COP. On the trip, he hit an IED. The IED was in a culvert, and just as his vehicle drove over, the IED exploded lifting the back end of his vehicle. His face hit the DVE and was thrust backward, causing his lower back to be pitched through a combination of the Army he was flexed and his plate slammed into his lower back lumbar region. Several weeks after the event, his lower back was in excruciating pain, though he continued to work. He knows without a doubt, that this is the absolute cause of his back pain. On his DA Form 199 it states that the origin of his back condition came as a result of playing basketball at Fort Gordon. This is not true or accurate. He has been told by his Physical Evaluation Board Liaison Officer, and his attorney, that there is no reference in the Armed Forces Health Longitudinal Technology Application (AHLTA) to a basketball injury involving his back during that timeframe. Furthermore, he has no recollection of having a basketball related injury of any kind. He respectfully asked the PEB to award because his back injury is "based on an injury incurred in the line of duty in combat with an enemy of the U.S. and as a direct result of armed conflict or caused by an instrumentality of war." b. Undated statement from SGT who claims, in effect, that he was deployed to Afghanistan and worked with and lived in the same tent with the applicant. They went on numerous patrols and missions outside the wire and were exposed to IED blasts and enemy gunfire. On one occasion the applicant's vehicle was struck by an IED. After the incident the applicant started complaining about back pain. Upon returning to duty station he continued to complain until he was placed on permanent medical profile. c. Undated statement from SPC who claims, in effect, he was deployed with the applicant. He states the applicant was subjected to an IED blast while riding in a military vehicle in July 2013. On several occasions he was required to carry loads over 100 pounds through difficult terrain. The applicant made note of his back pain while deployed. SPC did not witness anything which would cause him to believe [the applicant's] back issues were related to playing basketball in April 2013. d. Memorandum dated 4 November 2013, which notes the applicant deployed as part of 163rd Military Intelligence Battalion arriving in theater on 28 April 2013 and redeploying out of theater on 16 November 2013. e. Permanent Orders Number 351-002, 17 December 2013, announcing award of the CAB to the applicant for an incident on 21 July 2013, for personally engaging, or being engaged by the enemy. f. 10 pages of medical records. MACE for injury from terrorist explosion IED on 21 July 2013. Description of incident states the convoy stopped to clear a culvert with mine hound after it was cleared, they continued on patrol. Applicant was in the third vehicle, a few seconds after passing over the culvert, IED went off and the vehicle lurched forward causing the applicant to hit his head on the DVE. Form notes no alteration of consciousness, no LOC and no post-traumatic amnesia. Received 28/30 MACE, normal neurological results. Disposition of 48 hours quarters and daily follow-up. The attending physician notes a very mildly symptomatic concussion with no LOC; quarters with duty restriction 24-48 hours with daily follow-up; Motrin/Tylenol. On 16 April 2016, he self-referred to Tripler Army Medical Center for PTSD and anxiety. Positive TBI/Concussion screen – further evaluation indicated. Released without limitations and a diagnosis of chronic PTSD. g. VA Rating Decision, 10 January 2017, service-connecting him for PTSD, bilateral plantar fasciitis and pes planus, post-traumatic headaches, lumbar degenerative disc disease, facial scars, left knee strain, metatarsalgia, right knee strain and shin splints, and tinnitus. Service connection for TBI was granted with an evaluation of 10 percent. h. DA Form 199, 14 November 2016, notes the IPEB convened on 30 August 2016, at Joint Base Lewis McChord. The Board found the applicant physically unfit for lumbar degenerative disc disease and recommended a rating of 20 percent and that he be separated with severance pay. The applicant did not concur and demanded a formal hearing with personal appearance and regularly appointed counsel. i. ABCMR Record of Proceedings 20140010453, 29 May 2015, which shows the Board voted to grant full relief for entitlement to the PH for a Soldier wounded in action on 20 November 2008. Permanent orders showed this applicant was awarded a CAB for actively engaging or being engaged by the enemy on 20 November 2008. It notes the award was sufficient as a basis for granting her the PH. j. ABCMR Record of Proceedings 20170009006, 9 September 2019, which shows the Board voted to grant a formal hearing as the evidence presented did not demonstrate the existence of a probable error or injustice. Therefore, the Board determined the overall merits of the case were insufficient as a basis for correcting the records of the individual concerned. k. ABCMR Record of Proceedings 20170008863, 7 January 2019, which shows the Board voted to grant full relief for entitlement to the PH and Combat Infantryman Badge. Item 40 (Wounds) of his DA Form 20 (Enlisted Qualification Record) listed a gun shot wound to the right buttocks and item 41 (Awards and Decorations) listed the PH based on Special Orders dated 18 April 1968. l. decided on 19 December 2014, in which a Veteran brought action against the Secretary of the Army, seeking review pursuant to Administrative Procedure Act of a decision of the ABCMR denying his request for the PH. granted summary judgment to the Army. The Veteran appealed. The Court of Appeals held that the Veteran sufficiently presented his request for correction to the ABCMR, so as to permit judicial review, and the ABCMR’s denial of the request for correction was arbitrary and capricious. m. Extract of Army Regulation 600-8-22, 5 March 2019, pertaining to the PH. n. Medical Opinion, 7 May 2020, reference medical evaluation for awarding the PH due to combat TBI on 21 July 2013. Physician opined that the TBI condition WAS related to combat actions on 21 July 2016, but WAS NOT of significant severity to warrant a PH. Per Army Regulation 600-8-22, paragraph 2-8f (6), the TBI must have been the result of enemy generated explosions that resulted in either a LOC or restriction from full duty due to persistent signs and symptoms of impaired brain function for a period greater than 48 hours from the time of the incident. In this case, there is a diagnosis of a TBI on 22 July 2013, but there was no LOC. While the Soldier was placed on quarters for 48 hours, it was NOT due to persistent signs or symptoms. He was seen in the Theater Clinic on 21 July 2013. The Soldier reported that he hit his head on the DVE as a result of the blast. The Soldier denied LOC or post-traumatic amnesia. His MACE was 28/30. His physical exam was unremarkable. He was not diagnosed with a concussion but was placed on quarters for 48 hours. A physician saw the Soldier on 22 July 2013. The Soldier again denied LOC but did report a mild headache that had resolved. His neurologic exam was unremarkable. The diagnosis was listed as a concussion that was "very mildly symptomatic - no LOC." He was restricted to quarters with duty restrictions for "24-48 hours" with daily follow-up. There is no indication, however, that the Soldier was given quarters for 48 hours because of continuing TBI symptoms. The Soldier evidently did not follow-up because there were not any other notes in AHLTA for him during the deployment. Through 3 August 2016, the applicant was seen multiple times in the clinic, but not for any sequelae or issues related to TBI. o. FOIA request, 23 July 2020. p. ABCMR Record of Proceedings 20190002061, 15 March 2019, which shows the Board voted to grant full relief for entitlement to the PH to an individual. After review of the application and all evidence, the Board determined there was sufficient evidence to grant relief. This applicant's contentions, medical record, and witness statements were carefully considered. Based upon the preponderance of evidence, the Board agreed this applicant was entitled to the PH. q. ABCMR Record of Proceedings 20080001504, 22 April 2008, which shows the Board voted to grant full relief for entitlement to the PH to an individual. The evidence of record showed he was injured in an IED blast in Iraq; the incident and medical treatment was made a matter of official medical record; and the IED could not have been placed in the road by other than a hostile enemy. 5. Army Regulation 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. 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. 6. 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. 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. 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 applicant’s contentions, the military record, and regulatory guidance were carefully considered. 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. In the applicant’s case, although there was a TBO diagnosis, there is insufficient evidence of a concussion severe enough to cause a loss of consciousness. Additionally, although the applicant may have been placed on quarters for 48 hours, there is insufficient evidence the reason for this placement was due to persistent signs or symptoms. The Board determined he does not meet the criteria for award of the PH in this case. 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. Army Regulation 600-8-22 prescribes Army policy, criteria, and administrative instructions concerning individual and unit military awards. a. The PH 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 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 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 PH, 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 PH 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 PH include PTSDs, 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 PH 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. 2. 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 PH 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 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 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 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. 3. Army Regulation 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 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) AR20220003416 1 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1