IN THE CASE OF: BOARD DATE: 30 September 2022 DOCKET NUMBER: AR20220004088 APPLICANT REQUESTS: through counsel, in effect, reversal of the U.S. Army Human Resources Command denial of his entitlement to the Purple Heart (PH). APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: * DD Form 149 (Application for Correction of Military Record) * DD Form 214 (Certificate of Release or Discharge from Active Duty) * Officer Record Brief * Orders – Active Duty to U.S. Army Reserve, May – September 2013 * Involuntary Discharge or Involuntary Transfer Memorandum of Non-Selection * Orders – Promotion to Major – June 2004 * Officer Evaluation Report 2006 * Line of Duty Investigation Packets, 2015, 2016 (Not Provided) * Awards – Bronze Star Medal, Combat Action Badge, Army Commendation Medal * Prior Submission to U.S. Army Human Resources Command (AHRC) (Not Provided) * Informal Physical Evaluation Board (IPEB) Proceedings * Medical Records – Armed Forces Health Longitudinal Technology Application (AHLTA) Summary of Traumatic Brain Injury (TBI) visit * Medical Records * 2 Physician Letters * 14 Photographs * Department of Veterans Affairs (VA) Rating Decision, 25 June 2018 * Statement of Support * 2 Sworn Statements 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. Counsel states, in effect: a. The applicant was injured physically and suffered a traumatic brain injury (TBI) in 2006 during an explosion while on convoy operations in Iraq while engaged in combat operations in support of Operation Iraqi Freedom. While eligibility was extended to service members suffering TBI in 2011, he only first learned of it during a conversation with a senior officer in 2016. After realizing his eligibility and speaking with his spouse, he began the laborious process of demonstrating his entitlement and applying through his chain of command to the U.S. Army Human Resources Command (AHRC). After years of bureaucratic demands and rejections, he was finally referred to this Board. However, his cognitive injuries and family demands slowed the process. After it became apparent that he was unable to successfully complete the application on his own, he sought the assistance of an attorney. As will be more clearly detailed herein, the applicant believes that his case should be heard in the interest of justice and that this Board is his only recourse, having exhausted all available administrative remedies. b. While assigned to the 4th Battalion, 11th Field Artillery Regiment at Fort Wainwright, the applicant was deployed to Mosul, Iraq in September 2005. As a Platoon Leader and later Fire Support Officer (FSO), he was actively engaged in combat operations, not only in targeting and FSO duties, but in leading troops through combat operations. He received a Combat Action Badge for engaging the enemy in September 2005 and a Bronze Star Medal for exceptionally meritorious service from 15 August 2005 - 15 August 2006, during Operation Iraqi Freedom 05-07. c. Near the end of his deployment in Iraq, the applicant was riding in a Stryker vehicle on 11 September 2006, when the up-armored vehicle was struck by an Improvised Explosive Device (IED). The vehicle was launched in the air and tossed to the opposite side of the road. Along with being struck by fragments coming through the hatch, the applicant was flipped 180 degrees inside the vehicle, striking his head with a resulting several minutes of loss of consciousness (LOC). He was later dragged out of the vehicle by a fellow Soldier while still unconscious. The attack was complex, and a second IED struck the vehicle in the front of the convoy, resulting in multiple casualties. Upon coming to, he was extremely disoriented and has only partial memory of the remainder of the day. As there was no medical doctor on the convoy, he was given a cursory check by the convoy medic on site who opened up his vest to see if he had any injuries to his torso and limbs, but little more was possible. As there were more critical injuries, and he was still ambulatory, the applicant began assisting with recovery operations. Once back on base, he was seen at the combat army surgical hospital where he received stitches to the three-inch laceration to the back of his head. Later, when the bandages required changing, the company medic cleaned and replaced his bandages while he was in Chief office. As photos illustrate, although he did not consider it particularly serious, the applicant suffered a severe laceration from the blast which required stitches. He does not have any memory of receiving the physical wound or of striking his head. d. In addition to the laceration, the blow to the head caused a TBI. In 2006, the military had little understanding of the effects of blast injuries, and the applicant had no further medical care, follow up or documentation of his TBI injury. He soon re-deployed to Fort Wainwright, Alaska with his unit. By January 2007, he had been transferred to the 1st Theater Support Command at Fort Bragg and rapidly deployed to Kuwait, again in support of combat operations and with little medical care. e. The applicant spent the remainder of his active-duty time at Fort Bragg, North Carolina, assigned to the 18th Fires Brigade of the 82nd Airborne Division, and ended his term of service on 1 September 2013, after non-selection for promotion to Major. He transferred into the U.S. Army Reserves and received orders to the 430th Transportation Company in Baltimore, Maryland. The next year he was selected for promotion to Major and promoted on 30 May 2014. f. The applicant was rated by the Veterans Administration at 100 percent (with conditions related to combat upon completion of his active-duty time with the Warrior Transition Unit (WTU), and while the laceration had quickly healed and faded in 2006, the medical issues from his active-duty time continued to plague him in his Reserve capacity. On 18 July 2016, he was given active duty orders to the WTU at Fort Campbell, Kentucky for care and a Medical Evaluation Board and transferred shortly thereafter to Walter Reed, closer to his home in. He remained at Walter Reed for nearly two years for inpatient and outpatient care, as his evaluation continued. His treatment at Walter Reed was the first time he received comprehensive care and evaluation for TBI. His line of duty investigation eventually found his injuries from the IED blast to be in the line of duty and service-connected. g. The applicant was medically separated from the Reserves in 2018. His conditions, including TBI and post-traumatic stress disorder (PTSD) related to the IED injuries have also been recognized and rated by the VA as 100 percent, total and permanent, with unemployability. h. The after-effects from the blast have been long lasting. While the laceration itself has healed and remains only as a small lump of scar tissue under his hair, the TBI from the blast continues to affect his daily life. After the military, he began work at a large human resources company, but was terminated as he had difficulty focusing due to the TBI and could not sit at a desk for the hours required for normal office work. Since 2006, he has suffered from periodic migraines and is prescribed and takes medication for them. He has remained out of the work force since 2016, and also receives Social Security Disability. i. The applicant suffered his TBI and wound in Iraq in 2006, prior to the military authorizing a PH for TBI in 2011. He did not personally learn of the change in policy for TBI until 2016, during a chance conversation with his former commander and mentor who was familiar with his service in Iraq. During that conversation, he was informed that he should be eligible for the PH for his TBI and that he should apply. In August 2017, AHRC rejected his packet as it did not contain the required two sworn statements and medical records from the time of the incident documenting the injury. In 2018, after contacting a deployment colleague who verified the incident, AHRC denied his second submission. j. Iraqi combat operations had only begun in 2003, and conditions were still primitive in 2006. With the exception of one large base in Baghdad, Iraq, most service members were located on small "forward operating bases" or "combat outposts" with little technology, sanitation or even electricity. Moreover, in 2006 the change in regulation acknowledging concussive injuries as eligible for a PH had not even been proposed. Medical staff either in the field or at medical garrisons such as Landstuhl, Germany, were not well versed in the seriousness of the injury and required treatment, much less the requirement that the injury, treatment and surrounding circumstances be documented for administrative purposes. TBI, while accepted and recognized today, took time to both accept, and for medical providers, to understand, adapt and document. When the applicant was injured in 2006, neither medical providers nor the regulation understood or acknowledged the seriousness of his injury, nor did combat medics bother documenting the field care and treatment of lacerations. The military has since acknowledged this fact, and a PH can be awarded without documentation of medical treatment immediately following, provided the injury would have required medical treatment had care been available. k. It is undisputed that the applicant suffered both a wound to the flesh and a TBI with LOC and subsequent brain damage on 11 September 2006. It is also abundantly clear that the blast injury had a profound effect on him including persistent signs, symptoms, clinical findings, and impaired brain function more than 48 hours after the incident. Indeed, he has felt effects for many years from this injury and will continue to throughout his lifetime. 3. The applicant entered active duty in the Regular Army on 23 February 2003. Evidence shows he served in Iraq for the period 15 August 2005 to 25 November 2006, Kuwait from 5 July 2007 to 21 February 2008 and Kuwait from 5 December 2011 to 15 June 2012. On 1 September 2013, he was honorably released from active duty. The DD Form 214 he was issued shows he was awarded or authorized the: * Iraq Campaign Medal with 2 campaign stars * Bronze Star Medal * Army Commendation Medal * Army Achievement Medal (2nd Award) * Valorous Unit Award * National Defense Service Medal * Global War on Terrorism Service Medal * Army Service Ribbon * Overseas Service Ribbon (3rd Award) * Combat Action Badge * Parachutist Badge 4. In August 2017, AHRC rejected his request for the PH as it did not contain the required two sworn statements and medical records from the time of the incident documenting the injury. In 2018, he resubmitted his request; however, AHRC continued to reject his packet as it did not contain the required amount of sworn statements and documented medical records immediately following the blast. 5. The applicant provides: a. 44 pages of Medical Records and encounter data from 21 March 2016 to 8 December 2017, pertaining to his history and treatment for TBI. b. Letters from three physicians at the VA Medical Center dated 17 June 2015 and 25 April 2016, who attest the applicant is receiving outpatient treatment for PTSD, alcohol dependence, depressive disorder, insomnia with sleep apnea, mTBI, knee pain and migraines. c. IPEB Proceedings which shows the PEB convened on 25 January 2018, and found the applicant physically unfit. The Board recommended a rating of 100 percent with permanent disability retirement. The applicant concurred and waived a formal hearing in his case. The Board found following conditions to be unfitting: * PTSD with TBI * Lumbar Spine Strain with Lumbosacral Spondylosis without Myelopathy * Fibromyalgia * Right Upper Extremity Neuropathy * Left Upper Extremity Neuropathy * Right Lower Extremity Neuropathy * Left Lower Extremity Neuropathy d. 14 photographs presumably of the applicant receiving treatment for a laceration to his head. e. Army Combat-Related Special Compensation Decision Letter dated 17 November 2018, which approved the applicant’s claim in accordance with program guidance. Verified as combat-related were PTSD with TBI, fibromyalgia and tinnitus. f. VA Rating Decision dated 25 June 2018. Service connection for 98 different conditions were evaluated. Among the conditions receiving service connection is PTSD with TBI, which is rated as 70 percent disabling and migraine headaches also claimed as TBI with residual headaches, currently 30 percent disabling. g. Letter from his spouse, an Army Medical Officer, who states, in effect, after his deployment, he never spoke about his time in Iraq. He is very short with his words and isn't a great communicator anymore, he is very moody these days but was worse when he got home. She told him if he didn't see someone, she would divorce him. She couldn't take the rollercoaster of emotions that he put her through on a daily basis. ln addition to his mood swings, he would toss and turn throughout the night as if he was having nightmares. Every time she woke him up, he would always say that he didn't have a dream or seemed clueless why she woke him up, although he clearly was experiencing something. It would always be a gentle rub because she wasn't sure how he'd respond. He eventually saw someone or at least he told her he did through OneSource. She felt like things got a little better, so she believed him. Over the years, she has stuck by him but it has been difficult when dealing with his moods. As a nurse she understands PTSD, but it can be a lot at times. From his injury, he gets the worse back spasms where he's unable to walk. She remembers getting a call that he was found in the parking at Ft. Lee or the time she had to leave him in the basement until he could walk, because she couldn't get him up the stairs. h. Sworn statement from Chief Warrant Officer Four (Retired) dated 31 August 2021, who states, in effect, he remembers the day his vehicle was hit by an IED. He was in the same convoy but a different vehicle from the applicant. After the IED explosion the vehicles had to halt. He was worried because he didn't see the applicant for a while. In the chaos of the first and second explosion, it took a while to locate him. Later, he witnessed Soldiers retrieve the applicant from his vehicle and provided him first aid. The next day he met the applicant and he was really subdued. He requested the medic come by the office and change the applicant’s bandage on the wound he received on his head during the IED explosion. He took pictures of the applicant getting his wound dressed by the medic. The applicant did not believe it was serious but later he was diagnosed with a TBI. i. Sworn statement from Sergeant First Class (Retired) dated 28 June 2016, who states, in effect, on 11 September 2006, his platoon was executing a joint combat patrol in Iraq. The applicant was in the lead vehicle riding in the rear driver side air-guard hatch as the fire support officer and pulling security. The vehicle was struck by a command-detonated explosively formed projectile IED which lifted the vehicle several feet into the air and peppered with fragmentation and cement debris which entered both air-guard hatches. Within the vehicle, six Soldiers were thrown in and around the interior of the vehicle by the blast and overpressure. The applicant’s body was flipped 180 degrees upside down striking his head against the air-guard hatch and IVC ramp. The applicant lost consciousness, was disoriented and complained of head pain and headaches. He was assessed by the platoon medic who recommended he return to base as soon as the situation allowed for a follow-up assessment. The applicant was subsequently reassessed and sent to the battalion aid station where he was examined and treated for head trauma. 6. 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. BOARD DISCUSSION: 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. a. 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. b. The evidence of record shows on 11 September 2006, the applicant’s Stryker vehicle was struck by an IED in Iraq. The vehicle was launched in the air and tossed to the opposite side of the road. Along with being struck by fragments coming through the hatch, the applicant was flipped 180 degrees inside the vehicle, striking his head with a resulting several minutes of loss of consciousness (LOC). He was later dragged out of the vehicle by a fellow Soldier while still unconscious. Once back on base, he was seen at the combat army surgical hospital where he received stitches to the three-inch laceration to the back of his head. The multiple sworn statements corroborate the events that occurred and the validity of his combat injury. Notwithstanding the denial decision of the HRC Awards and Decorations Branch, the Board found sufficient evidence exists to support awarding him the PH. 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 awarding him the Purple Heart for wounds received in action on 11 September 2006 in Iraq. 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 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. 3. 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. 4. 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 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) AR20220004088 1 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1