IN THE CASE OF: BOARD DATE: 17 January 2023 DOCKET NUMBER: AR20220007798 APPLICANT REQUESTS: reversal of the U.S. Army Human Resources Command’s decision to deny him award of the Purple Heart (PH). APPLICANT'S SUPPORTING DOCUMENT(S) CONSIDERED BY THE BOARD: * DD Form 149 (Application for Correction of Military Record) * Affidavit, applicant, 21 July 2021 * Permanent Orders 098-106, 8 April 2009 * Significant Activity (SIGACT) Report, 5 June 2009 * two photographs, 11 August 2009 * Memorandum, Subject: Narrative for Combat Action Badge..., 19 November 2009 * DA Form 2823 (Sworn Statement), 20 November 2009 * DA Form 2823, 21 November 2009 * DA Form 4187 (Personnel Action), 28 November 2009 * DA Form 2823, 3 December 2009 * Military medical records, 10 pages, 4 January 2011 * DD Form 214 (Certificate of Release or Discharge from Active Duty), 1 July 2020 * Automated Record Brief (ARB), 5 March 2021 * DA Form 4187, 15 July 2021 * two statements of support, undated * Memorandum, Army Human Resources Command (AHRC), 8 March 2022 * Memorandum, Command Surgeon, undated 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, he is seeking approval for award of the PH for a concussion, without loss of consciousness and mild TBI (mTBI), which he sustained on 14 June 2009 from enemy mortar fire. a. On 14 June 2009, while stationed in Majirr Al Kabirr, Iraq, with Bravo Company, 4th Battalion, 6th Infantry Regiment at Combat Outpost Majirr Al Kabirr "COP MAK", the outpost was attacked by 11 rounds of 60mm mortars between 2:55 am and 3:00 am local time. A mortar round struck the roof of the building he occupied, detonating less than one meter from his head. He was not wearing a helmet or ear protection, resulting in the immediate loss of hearing in both ears and a feeling of disorientation. The shockwave of the explosion hit him causing additional head trauma. A 10-foot by 10-foot section of ceiling plaster fell on him. He does not believe he lost consciousness, nor does he recall what he did or who he spoke to after being hit on the head. Following the attack, the Company Commander asked him if he was okay. He did not admit how he was feeling for fear of inviting ridicule. He would lose his platoon if he was evacuated. He told the Commander he was okay. No injuries were reported to Battalion. b. He was treated by the company medics. He experienced nausea, hearing loss, and felt "out of it." The medics treated him for concussion and placed him on two days of no duty. Due to limited computer connectivity, a digital medical report was not filed. c. He reported the concussion on his post-deployment health assessment. He sought medical help in December 2010, after his spouse expressed concern about his increasing memory lapses, hearing trouble, and verbal comprehension issues. In January 2011, he was diagnosed with mTBI, tinnitus, and memory loss at Evans Army Medical Center, Fort Carson, CO. He attended occupational therapy to retrain his brain for three months. d. He was not aware of the change in the PH policy in November 2020. His PH packet was denied on 8 March 2022 because he did not have medical officer documentation as required by Army Regulation (AR) 600-8-22 (Military Awards). The senior medical officer in his Reserve command reviewed the PH packet and provided a medical officer statement, concluding the concussion he sustained was severe enough to require medical treatment at the time. 3. A review of the applicant's record shows his foreign service is not documented in Item 12f (Foreign Service) of his DD Form 214. This item will be addressed through administrative correction without action by the Board. 4. The applicant, after having previous enlisted service in the United States Army Reserve, accepted an appointment as a Reserve Commissioned Officer of the United States Army on 22 May 2006, he was subsequently ordered to active duty, for a period of 6 years, with foreign service in the following locations: * Iraq - 9 May 2007 to 8 December 2007 (7 months) * Iraq - 2 May 2009 to 4 May 2010 (1 year, 3 days) * Afghanistan - 29 May 2011 to 15 May 20012 (11 months, 17 days) 5. A SIGACT Report, from Bravo Company, 4th Battalion, 6th Infantry Regiment, dated 14 June 2009, documents a 60mm mortar attack at "COP MAK" on 14 June 2009;.no injuries were reported. 6. The applicant provides two photographs, dated 11 Aug 2009, which appear to show 60mm mortar damage to the barracks. 7. Three DA Forms 2823, dated 20 November 2009 to 3 December 2009, outline the incident on "COP MAK," 14 June 2009: a. First Lieutenant (1LT) states, he was asleep in his room on the north end of the barracks. He woke up when he heard the explosions of one or two 60mm mortars outside the barracks. He alerted all personnel in his area by yelling "incoming." He heard eleven rounds explode as he waited in his room. He was alerted that three of the rounds impacted on or near the building. After accountability was taken, he went with Captain (CPT) (Applicant) to his room where he saw debris from where a round impacted above the applicant's living area. b. Sergeant First Class (SFC) states, he was asleep in his room which was the southernmost room in the barracks. He was woken up by indirect fire on the COP which impacted the barracks, front gate guard vehicles and in front of the "CP." One of the mortar rounds impacted right above the applicant's bunk where he was sleeping at the time of impact. c. SFC states, he was in the "CP" when the COP began receiving incoming. The attack lasted about two minutes with rounds impacting all over the COP. One round impacted the roof of the main living area and another landed outside of the chow hall. Once the attack ended and everyone was accounted for, he overheard the applicant talking about the impact above his room. As SFC walked back to his room, he saw that the 60mm mortar that landed on the roof impacted directly above the applicant's room. The room was covered with debris from the ceiling. 8. A DA Form 4187, dated 28 November 2009, with a supporting narrative, recommends the applicant be awarded the Combat Action Badge (CAB) for personally being engaged by the enemy during combat operations on 14 June 2009. 9. He was honorably discharged from active duty on 1 July 2020. His DD Form 214 does not list the Purple Heart. 10. His military record does not contain any evidence he was awarded the PH. 11. The applicant provides 10 pages of military medical records from Evans Army Community Hospital, dated 4 June 2011, which show he was seen for the following conditions, treatment or exams: * Brain Injury Traumatic * Concussion * Concussion with no loss of consciousness * Memory lapses of loss * Occupational Therapy * Sensorineural hearing loss * Speech Therapy * Tinnitus * Tinnitus subjective 12. He provides a DA Form 4187, dated 15 July 2021, which shows he was recommended for award of the PH for wounds/injuries received in action caused directly by the enemy on 14 June 2009 at "COP MAK", Iraq. 13. He provides two statements of support from two medics who were present at the time of the incident on 14 June 2009. Both medics state, "COP MAK" was attacked with mortars that impacted on and near the barracks. One of these mortars detonated very near where the applicant was sleeping. Upon examination, the applicant presented signs and symptoms of a concussion. He could not recall if he lost consciousness. As a precaution, he was monitored and placed on quarters for 48 hours. Due to a lack of medical, administrative and technical resources, medical notes were not written or documented. 14. A memorandum from the Awards and Decorations Branch, Army Human Resources Command (AHRC), dated 8 March 2022, shows AHRC disapproved the request for award of the PH. AHRC stated, the forwarded recommendation did not meet the statutory guidance outlined in AR 600-8-22, paragraph 2-8c, "To qualify for award of the PH the wound must have been of such severity that it required treatment, not merely medical examination, by a medical officer." The injuries the applicant suffered on 14 June 2009 were not severe enough to require additional treatment by a medical officer at the time, nor were they documented in his medical record. 15. The applicant provides a memorandum from the Command Surgeon, U.S. Army Space and Missile Defense Command, who states, he reviewed the applicant's PH packet and the response and disapproval from AHRC. Based upon his review of the medical record and affidavits of the medic's present, the applicant clearly had an mTBI. The unit was too remote to access electronic medical records, and the medics did not prioritize paper documentation. The medical treatment described by the medics was consistent with appropriate treatment for mTBI in a conflict environment. Mandatory rest and symptomatic treatment follow the Traumatic Brain Injury Center of Excellence guidelines and is the treatment he, as a physician, would have rendered had he been present. 16. AR 600-8-22, the regulatory guidance pertaining to the award of the PH, requires all elements of the award criteria to be met. There must be proof a wound was incurred as a result of enemy action, the wound required treatment by a medical officer; and the medical personnel made such treatment a matter of official record. Additionally, when based on a TBI, the TBI or concussion must have been severe enough to cause a loss of consciousness (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 not warranted. The applicant’s contentions, the military record, and regulatory guidance were carefully considered. a. The regulatory guidance pertaining to the award of the PH, requires all elements of the award criteria to be met. There must be proof a wound was incurred as a result of enemy action, the wound required treatment by a medical officer; and the medical personnel made such treatment a matter of official record. Additionally, when based on a TBI, the TBI or concussion must have been severe enough to cause a loss of consciousness (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. a. For the PH, the wound must have been of such severity that it required treatment, not merely medical examination, by a medical officer. Notwithstanding the opinion of the Command Surgeon, U.S. Army Space and Missile Defense Command, the Board agreed that the injuries the applicant suffered on 14 June 2009 were not severe enough to require additional treatment by a medical officer at the time, nor were they documented in his medical record. For that reason, the Board determined the applicant’s injury does not meet the criteria for award of 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. 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 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 mild (m) 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 do not justify award of the PH include PTSDs, hearing loss and tinnitus, mTBI or concussions that do not 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. //NOTHING FOLLOWS// ABCMR Record of Proceedings (cont) AR20220007798 1 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1