IN THE CASE OF: BOARD DATE: 16 February 2023 DOCKET NUMBER: AR20220007616 APPLICANT REQUESTS: award of the Purple Heart. APPLICANT'S SUPPORTING DOCUMENT(S) CONSIDERED BY THE BOARD: * DD Form 149 (Application for Correction of Military Record), 28 February 2022 * Self-authored statement, undated * Permanent Order, 021-21, 21 January 2003 * DA Form 638 (Recommendation for Award), 19 July 2003 * Army Achievement Medal certificate, undated * Permanent Order 187-25, 6 July 2003 * Standard Form 600 (Chronological Record of Medical Care), 19 July 2003 * Memorandum for record (Subject: Exhibits Table of Contents), 19 October 2018 * Supporting statement, undated * Medical referral (), 10 September 2018 * Enlisted Record Brief, 27 September 2018 * 3 sworn statements, 16 October 2018 to 19 October 2018 * Memorandum for record (Subject: Statement of Diagnosis), 7 June 2019 * DA Form 4187 (Personnel Action), 13 June 2019 * Memorandum for record (Subject: Reproduction of medical treatment), 14 August 2019 * DD Form 214 (Certificate of Release or Discharge from Active Duty), 31 August 2019 * Memorandum, Army Human Resources Command (AHRC), 23 December 2020 FACTS: 1. The applicant did not file within the 3-year time frame provided in Title 10, U.S. 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, in effect, AHRC denied his previous request for award of the Purple Heart for injuries received while serving as an 11B Infantryman during Operation Iraqi Freedom (OIF I) even though he suffered a mild traumatic brain injury (mTBI) with loss of consciousness and restrictions from full duty for 72 hours. a. While deployed in Iraq, he was a member of a route patrol that was ambushed and the vehicle he was in was struck by an improvised explosive device (IED). Following the blast, he lost consciousness for an undetermined amount of time and was taken back to the base where he was examined by company medics. The senior medic was concerned with his pupil dilation and recommended he be placed on quarters, or at minimum light duty for around 72 hours. He states a traumatic brain injury was not a concern at the time. Immediately following the IED attack he began suffering from intense migraine headaches, dizziness, fatigue, confusion, and nausea. b. After returning to the States in 2004, the applicant was selected to be an Army recruiter. Part of the recruiting school packet was a mental evaluation; however, no evaluation was conducted and the doctor did not go over any of his mental wellbeing or traumatic events from the yearlong deployment from which he returned. As a recruiter, he began to notice memory loss, trouble concentrating, inability to sleep, and difficulties with everyday life. His wife grew concerned and felt he was suffering from a condition but did not have much knowledge of mTBI. Additionally, his command looked down on Soldiers taking time for medical appointments, making it difficult to seek the medical attention he required. c. After recruiting, he changed his military occupational specialty from 11B to 37F (psychological operations) and was stationed at Fort Bragg, NC. His memory continued to worsen, migraines were happening more frequently, his vision was getting blurry, his depression and anxiety increased, and his mood swings worsened. Much of the symptoms were unknown to him as he had no idea there was anything wrong. d. In June 2015 he was assigned to 7th Special Forces Group (Airborne) where they began to take his injuries seriously. The troop medical clinic conducted an evaluation and determined that he was suffering from an mTBI, which he received in the IED blast in July 2003. He received treatment and a referral to the Post Deployment Rehabilitation and Evaluation Program (PREP) at. He was admitted into a three-month inpatient program and was also diagnosed with vestibulopathy, ocular misalignment, cognitive decline, and mTBI. e. He states he was in Afghanistan in 2011 when the message for award for the Purple Heart for mTBI was published. Multiple reasons such as little time to conduct self-care, poor leadership, being labeled, passed over for promotion, and fear of discharge were all reasons not to seek treatment or submit a package for the Purple Heart. f. When the applicant submitted a package for award of the Purple Heart, the company he was assigned to conducted an investigation to determine the validity of his claim due the amount of time that had passed since the events took place. The investigating officer contacted witnesses and submitted the package through his S1. It was then approved by his immediate and local commanders before being sent to AHRC for approval. During the process, he had retired from active duty and began his life as a civilian. g. Six months prior to his retirement date his youngest son (12 years old) was killed while riding his bike. His son's death took precedence over his award submission and anything dealing with the Army. He understands that this is his last effort to receive an award he earned. He lost faith in the Army's award system. 3. The applicant enlisted in the regular Army on 3 August 1999. 4. His record shows he deployed to the following locations: * Iraq - 20 March 2003 to 20 March 2004 (12 months) * Afghanistan - 15 July 2010 to 6 February 2011 (7 months) * Afghanistan - 16 July 2011 to 30 January 20112 (6 months) 5. A Standard Form 600 (Chronological Record of Medical Care) dated 19 July 2003, notes, "22-year-old male complaining of headache after being in a vehicle hit by an IED"…"hyperventilating, pupils equal reactive to light…patient blacked out during blast." Additionally, the doctor noted the patient displayed signs, symptoms of a concussion and recommend the patient be directed to quarters and light duty for a period of 72 hours. 6. A DA Form 638 (Recommendation for Award) shows he was awarded the Army Achievement Medal for his actions on 19 July 2003. The narrative states, while part of a routine patrol sector, the vehicle he was riding on was hit by an IED, temporarily blinding the commander and gunner. The applicant took charge of the situation establishing security around the vehicle, rending first aid to the crew and began a search of the immediate area for the person(s) who detonated the IED. 7. Permanent Orders 187-25, dated 6 July 2003, shows he was awarded the Combat Infantry Badge for participating in combat operations under hostile fire to liberate Iraq in support of Operation Iraqi Freedom. 8. A medical referral from the James A. Hale Veteran's Hospital shows he was referred and accepted for the inpatient PREP beginning on 1 October 2018. 9. He provides 3 sworn statements dated from 16 October 2018 to 18 October 2018: a. Sergeant First Class (Retired), states on the night of 19 July 2003 his platoon was assigned to conduct route recon along a new supply route. They had three vehicles for the mission, Red1, Red2, and Rock6. SGT (Retired) was in the same vehicle (Red2) as the applicant when vehicle was hit by an IED. After the IED had disabled their vehicle and debris and flames ripped through the back, he asked the applicant to help provide security and first aid to the injured soldiers, not realizing the applicant was injured himself. He believes the applicant was injured during the IED explosion but is unsure if they are directly related to the IED attack. b. Sergeant (SGT) (Retired) was the driver of the lead vehicle (Red1) during the reconnaissance patrol. On the night of 19 July 2003 vehicle Red2 took a direct hit from an IED. He did not see the initial blast but heard the explosion and Soldiers screaming on the radios that Red2 had been hit. He was instructed to turn his vehicle around and move to the position of the damaged vehicle. The Commander was calling in medical and security support because Red2 vehicle was damaged so badly. He remembers seeing the applicant directing his team and providing first aid to the crew of Red2. The applicant appeared to lose balance, even falling a few times to the ground. After returning to the base, the applicant seemed to be in daze and did not provide much feedback about the explosion because he did not remember a lot of what happened. Days after the attack, the applicant complained of intense headaches and feeling dizzy. His work performance was never the same, he became fatigued quicker, and his headaches were bad. c. SGT (Retired) states he was in the same vehicle as the applicant on the night of 19 July 2003 when their vehicle was disabled by an IED. The explosion and the debris ripped through the vehicle to include where the applicant was sitting. As confusion and debris were billowing the vehicle, the Commander asked the applicant to help provide security and first aid to the injured soldiers. He did not realize the applicant was injured. Once security and medical support arrived, they were able to get a better look at what had happened. Additionally, he states he believes the applicant was injured during the explosion but was not unsure if they are directly related to the IED attack. 10. A Memorandum for Record, from the Battalion Physician Assistant (PA), Group Support Battalion, 7th Special Forces Group, dated 7 June 2019, state the Battalion PA confirmed the applicant received the diagnosis of TBI on 6 April 2018, and he was treated with Epley maneuver for Benign Paroxysmal Positional Vertigo (BPPV). 11. A DA Form 4187 (Personnel Action) dated 13 June 2019 shows he was recommended by his immediate and local commander for the award of the Purple Heart. 12. A memorandum for Record from Command Sergeant Major acknowledges he was the applicant's senior line medic and he provided medical treatment to him on 19 July 2003 during their deployment. He states the applicant complained of a headache, demonstrated a loss of consciousness, and showed signs of a concussion. The cause of the injury was from being in a vehicle that took a direct hit from an IED. 13. On 31 August 2019, he retired from active duty. 14. A memorandum from the Awards and Decorations Branch, AHRC, dated 23 December 2020, shows AHRC disapproved the applicant's request for award of the Purple Heart. AHRC stated, the forwarded recommendation did not meet the statutory guidance outlined in AR 600-8-22, 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". 15. Regulatory guidance provides, in addition to other requirements, when a request for award of the Purple Heart is based on a TBI or concussion, there must have been a loss of consciousness or restriction from full duty 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 warranted. 2. The Board found the available evidence confirms the applicant suffered a concussion with loss of consciousness during an IED incident in Iraq on 19 July 2003. Based on a preponderance of the evidence, the Board determined the applicant is entitled to the Purple Heart. 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 incurred as a result of hostile action on 19 July 2003 and adding the Purple Heart to his DD Form 214. I certify that herein is recorded the true and complete record of the proceedings of the Army Board for Correction of Military Records in this case. REFERENCES: 1. Title 10, U.S. Code, section 1552(b), provides that applications for correction of military records must be filed within 3 years after discovery of the alleged error or injustice. This provision of law also allows the ABCMR to excuse an applicant's failure to timely file within the 3-year statute of limitations if the ABCMR determines it would be in the interest of justice to do so. 2. Army Regulation 600-8-22 (Military Awards) provides the Purple Heart is awarded for a wound sustained as a result of hostile enemy action. Substantiating evidence must be provided to verify that the wound was the result of hostile action, the wound must have required treatment by a medical officer (wounds treated by a medical professional other than a medical officer is authorized 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), and the medical treatment must have been made a matter of official record. a. Examples of enemy-related injuries that clearly justify award of the Purple Heart include concussion injuries caused as a result of enemy-generated explosions resulting in a mTBI or concussion severe enough to cause either loss of consciousness or restriction from full duty due to persistent signs, symptoms, or clinical finding, or impaired brain function for a period greater than 48 hours from the time of the concussive incident. b. Examples of injuries or wounds that clearly do not justify award of the Purple Heart include post-traumatic stress disorders, hearing loss and tinnitus, mTBI or concussions that do not either 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. c. When recommending and considering award of the Purple Heart 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 Purple Heart), dated 18 March 2011, provides clarifying guidance to ensure the uniform application of advancements in medical knowledge and treatment protocols when considering recommendations for award of the Purple Heart for concussions (including mTBI and concussive injuries that do not result in a loss of consciousness). The directive also revised Army Regulation 600-8-22 to reflect the clarifying guidance. a. 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. b. 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. c. 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 Purple Heart: (1) Diagnosis of concussion or mild traumatic brain injury; (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 (CT) or MRI scan. d. The following nonexclusive list provides examples of medical treatment for concussion that meet the standard of treatment necessary for award of the Purple Heart: (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. e. 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) AR20220007616 1 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1