IN THE CASE OF: BOARD DATE: 14 February 2023 DOCKET NUMBER: AR20220004105 APPLICANT REQUESTS: reversal of the Awards and Decorations Branch, U.S. Army Human Resources Command denial of his request to be awarded the Purple Heart. APPLICANT'S SUPPORTING DOCUMENT(S) CONSIDERED BY THE BOARD: * DD Form 149 (Application for Correction of Military Record) * Bronze Star Medal Certificate and narrative * Combat Infantryman Badge (CIB) orders and Report of Action * DA Form 4187 (Personnel Action) (request for Purple Heart) * three DD Forms 214 (Certificate of Release or Discharge from Active Duty) * U.S. Army Human Resources Command (HRC) Awards and Decorations Branch Purple Heart denial letter, 14 March 2022 * unit mobilization orders * DA Forms 2A and 2-1 (Personnel Qualification Records Parts I and II) * Department of Veterans Affairs (VA) Rating Decision * VA Health Summary FACTS: 1. The applicant states: a. On 21 March 2004, he and Major (MAJ) had departed on a convoy from an Iraqi Army outpost (a former prison compound at Tal Afar) to Mosul. The convoy consisted of three sports utility vehicles (SUV) and two U.S. Army infantry advisors with Iraqi Army Soldiers. Each of the SUVs had three to four Iraqi Soldiers with MAJ leading the convoy in the first SUV and him being in the rear unit and in the front right seat of his SUV. The convoy had no armored units. An operation order for the convoy was given before the mission with landmarks and checkpoints as part of the mission. b. After arriving to the outskirts of Mosul, it was realized by the lead vehicle (MAJ ) that they had taken the wrong route and were about to cross the Tigris river at a bridge that was not part of the original route. The lead vehicle made a U-turn right before entering the bridge with the second vehicle following suit. He had his window down and had his head out the window to stop oncoming traffic. As the Iraqi Army driver for his SUV began to make the U-turn, an improvised explosive device (IED) went off on the left side of the bridge. He was thrown back into the vehicle from the concussive blast. He could remember how hard the blast was but not much more after that. He knows that the driver of his vehicle took off to get out of the kill zone and had rejoined the rest of the convoy. c. A striker unit that was to the front of his SUV had sustain damage from the IED and reported to have flat tires. His SUV had shrapnel damage to the rear of the vehicle. He could not remember where we went afterwards and did not know where the convoy ended up. He believes they went back to the Iraqi Army Tall afar outpost (The remote outpost where they just had a handful of advisors and no medics or medical facility). It is hard to remember anything after the attack. After the IED he began to have migraines but due to not having any medical care at their remote outpost, he was not able to see a medic for his headaches until a month later. d. He went to the medic tent at the U.S. base at Tal Afar and complained of the headaches. He was given aspirin. He did not go back and the headaches and memory loss have continued to this day. The convoy only had one other U.S. Soldier, MAJ . He is the one who did the write-ups for the Combat Infantryman Badge (CIB) and Bronze Star Medal for the attack. The attack was well documented with a salute report submitted by MAJ . He went to the VA in reference to his migraines, hearing problems, and constant depression and they did an evaluation and advised him to be evaluated for traumatic brain injury (TBI). He was diagnosed with a TBI and he has been receiving treatment for the TBI and for the other permanent disabilities. e. The VA has been very good. This year, a person who represents veterans advised him that the Army is now awarding the Purple Heart for TBI. Therefore, he applied for the Purple Heart but in March 2022, his request was denied. What strikes him in the denial was the reason for denial. The officer who denied the award stated that he should have sought more medical treatment after he complained of migraines. He does not think anyone knew of what they did and the fact that TBI at that time was not even recognized as a wound and was not even given an ounce of credit at the time. f. The IED attack was in 2004. He is sure that if he would have told a medic that he was having migraines, they would have put him through a whole TBI protocol. When he got injured there was absolutely none of that. Furthermore, they had no medics or a medical facility at Tal Afar. They were in a remote area of Iraq with a few advisors and an Iraqi battalion. For months they did not even have communications with their home base in Baghdad, let alone any other logistics. They had to eat Iraqi food and live with them. Also, he was told you have to have two other American Soldiers who had seen it. On this convoy and with most of the missions, they would only have one or two advisors. Two others were not an option. Nevertheless, the IED attack was documented by MAJ and signed off by General . He is not lying about what occurred to him. General P, when he took over the Coalition Military Assistance Training Team, had seen what they had done to them. He corrected it but it was after the IED attack. 2. The applicant enlisted in the Regular Army on 6 July 1983. He was released from active duty and transferred to the U.S. Army Reserve (USAR) on 5 May 1987. 3. The applicant was ordered to active duty as a member of his USAR unit in support of Operation Iraqi Freedom and he entered active duty on 27 January 2003. He served in Iraq from 20 February to 7 December 2004. 4. The applicant provided a Report of Action (for award of the CIB) showing that on 21 March 2004, he was involved in an enemy IED attack which caused damage to the vehicle he was occupying and also caused temporary hearing loss. 5. The applicant was transferred to the Retired Reserve on 22 March 2009. 6. On or around January 2022, the applicant submitted a request for award of the Purple Heart to HRC based on the IED attack on 21 March 2004. 7. On 14 March 2022, the HRC Awards and Decorations Branch denied the applicant's request for the Purple Heart and stated the following: a. While we would like to take favorable action, we are unable to authorize the requested award for issuance. In order to determine eligibility for the Purple Heart, this office requires medical documentation describing both diagnosis and treatment of injuries caused by the enemy immediately after, or close to the incident date and signed or endorsed by a medical professional in accordance with Army Regulation 600-8-22 (Military Awards), paragraph 2-8. Without this documentation we will not be able to process your request. b. Based upon the provided Department of Veterans Affair Benefits Rating Decision dated 15 December 2021, [the applicant] was diagnosed with post traumatic stress disorder (PTSD) with unspecified neurocognitive disorder, traumatic brain injury (TBI), and benign paroxysmal positional vertigo. While this information is helpful, we cannot utilize post-deployment diagnoses as the sole justification for award of the Purple Heart; we must review military medical documentation from or close to the event in question as described above. As it appears from the provided narrative that [the applicant] did not seek additional medical treatment following his visit with the medic for headaches symptoms, we cannot take further administrative action concerning this request. 8. The applicant provided a VA Rating Decision, dated December 2021, showing he was granted service-connected disability compensation for PTSD with unspecified neurocognitive disorder with TBI and benign paroxysmal positional vertigo. 9. MEDICAL REVIEW: The Army Review Boards Agency (ARBA) Medical Advisor was asked to review this case. Documentation reviewed included the applicant’s ABCMR application and accompanying documentation, the military electronic medical record (AHLTA), the VA electronic medical record (JLV), the electronic Physical Evaluation Board (ePEB), the Medical Electronic Data Care History and Readiness Tracking (MEDCHART) application, the Army Aeromedical Resource Office (AERO), and/or the Interactive Personnel Electronic Records Management System (iPERMS). The ARBA Medical Advisor made the following findings and recommendations: a. The applicant is applying to the ABCMR requesting the awarding of the Purple Heart for a traumatic brain injury (TBI) from an improvised explosive device (IED) attack in 2004: “At the time of the IED and the injury there was not in place for a purple heart award for this type of occurrence.” b. The Record of Proceedings details the applicant’s military service and the circumstances of the case. Orders published by the 85th Support Command show the applicant was transferred to the Retired Reserve effective 22 March 2009 after having completed 20 or more years of qualified service for retired pay at age 60. c. From his self-authored statement: “I could remember the hardness of the blast and then not much more after that. I know the driver of this vehicle took off to get out of the kill zone and had rejoined the rest of the convoy. A striker unit that was to the front of my SUV had sustained damage from the IED and reported to have flat tires. My SUV had shrapnel damage to the rear of the vehicle. I could not remember where we went afterwards and didn't know where the convoy ended up at. I believe we went back to the Iraqi Army Tal Afar outpost (The remote outpost where we just had a handful of advisors and no medics or medical facility). It is hard to remember anything after the attack. After the IED, I begun to have Migraines but due to not having a medical care at our remote outpost, I was not able to see a medic in reference to the headache until a month later the American FOB at Tal Afar, I went to the medic tent and complained of the headaches. I was given aspirin. I didn't go back and the headaches and memory loss have continued to this day.” d. Paragraph 2-8 of AR 600-8-22, Military Awards (11 December 2006), lists the criteria for the awarding of the Purple Heart. Paragraph 2b lists the circumstances under which the injury is eligible for a Purple Heart (enemy action, friendly fire, peace keeping, etc.). Paragraph 2e states the wound and medical care requirements for the award: “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.” e. Paragraph 2-8f(6) of AR 600-8-22 addresses criteria justifying a mTBI related Purple Heart: “Concussions (and/or mild traumatic brain injury (mTBI)) caused as a result of enemy-generated explosions that result 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. Refer to paragraph 2–8l for additional information.” f. Paragraph 2-8g of AR 600-8-22 list examples of conditions not justifying a Purple Heart, including paragraph 2-8g(13): “mTBI that does not result in loss of consciousness or restriction from full duty for a period greater than 48 hours due to persistent signs, symptoms, or physical finding of impaired brain function.” g. Clarification of the standards for awarding a Purple Heart for a combat related TBI were provided in Army Directive 2011-07 (Awarding the Purple Heart) issued 29 April 2011. While it makes clear a concussion / mTBI may be eligible for the awarding of a Purple heart, paragraph 3 continues to maintain the eligibility criteria of AR 600-8-22: WHEN RECOMMENDING AND CONSIDERING AWARD OF THE PURPLE HEART, THE CHAIN OF COMMAND WILL ENSURE THE CRITERIA IN PARAGRAPH 2-8 OF REFERENCE 8 IS MET, AND THAT BOTH DIAGNOSTIC AND TREATMENT FACTORS ARE PRESENT AND DOCUMENTED IN THE SOLDIER'S MEDICAL RECORD BY A MEDICAL OFFICER. PARAGRAPH 4C BELOW DEFINES MEDICAL OFFICER. h. Paragraph 4C: “A MEDICAL OFFICER IS DEFINED AS A PHYSICIAN WITH OFFICER RANK.” i. There are no contemporaneous encounters in AHLTA. j. No contemporaneous medical documentation submitted with the application. The 110 pages of Veterans Affairs medical documentation show the applicant has been diagnosed with and is being treated for a TBI. While the applicant may have sustained a TBI at the time, there is no evidence he sustained any qualifying wound(s) which required medical evaluation and treatment at the time of the injury. k. It is the opinion of the ARBA Medical Advisor that the awarding of a Purple Heart remains unwarranted. BOARD DISCUSSION: 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. The Board noted that 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 this case, there are no medical documentation describing both diagnosis and treatment of injuries caused by the enemy immediately after, or close to the incident date and signed or endorsed by a medical professional. Without this documentation, the Board determined the applicant does not meet the criteria for the Purple Heart. ? 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 provides Department of the Army policy, criteria, and administrative instructions concerning individual military decorations. It 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. To qualify for award of the Purple Heart the wound must have been of such severity that it required treatment, not merely examination, by a medical officer. b. Award may be made for a wound treated by a medical professional other than a medical officer provided a medical officer includes a statement in the member’s medical record that the severity of the wound was such that it would have required treatment by a medical officer if one had been available to provide treatment. c. When contemplating eligibility for the Purple Heart, the two critical factors commanders must consider is the degree to which the enemy or hostile force caused the wound, and was the wound so severe that it required treatment by a medical officer. d. Examples of enemy-related actions which justify eligibility for the Purple Heart are as follows: (1) Injury caused by enemy bullet, shrapnel, or other projectile created by enemy action. (2) Injury caused by enemy emplaced trap, mine or other IED. (3) Injury caused by chemical, biological, or nuclear agent released by the enemy. (4) Injury caused by vehicle or aircraft accident resulting from enemy fire. (5) Smoke inhalation injuries from enemy actions that result in burns to the respiratory tract. (6) Concussions (and/or mild TBI) caused as a result of enemy-generated explosions that result 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. e. Some examples of injuries which do not justify eligibility for the Purple Heart are as follows (1) Hearing loss and tinnitus (for example : ringing in the ears, ruptured tympanic membrane). (2) Mild TBI that does not result in loss of consciousness or restriction from full duty for a period greater than 48 hours due to persistent signs, symptoms, or physical finding of impaired brain function. 2. Section 1556 of Title 10, United States Code, requires the Secretary of the Army to ensure that an applicant seeking corrective action by ARBA be provided with a copy of any correspondence and communications (including summaries of verbal communications) to or from the Agency with anyone outside the Agency that directly pertains to or has material effect on the applicant's case, except as authorized by statute. ARBA medical advisory opinions and reviews are authored by ARBA civilian and military medical and behavioral health professionals and are therefore internal agency work product. Accordingly, ARBA does not routinely provide copies of ARBA Medical Office recommendations, opinions (including advisory opinions), and reviews to ABCMR applicants (and/or their counsel) prior to adjudication. //NOTHING FOLLOWS// ABCMR Record of Proceedings (cont) AR20220004105 1 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1