  IN THE CASE OF:  
 
  BOARD DATE: 15 August 2023 
 
  DOCKET NUMBER: AR20230001703 
 
 
APPLICANT REQUESTS: reconsideration of his previous request for award of the Purple Heart and appearance before the board. 
 
APPLICANT'S SUPPORTING DOCUMENT(S) CONSIDERED BY THE BOARD: 
 
Х DD Form 149 (Application for Correction of Military Record), 4 November 2022 

Х Army Commendation Medal (ARCOM), 30 December 2003 (previously considered) 

Х Post Deployment Health Assessment, 17 May 2003 (previously considered) 

Х Medical Records (previously considered) 

Х Memorandum for Record, 14 June 2004 (previously considered) 

Х DD Form 2648 (Pre-separation Counseling Checklist), 9 August 2004 (previously considered) 

Х Hearing Conservation Data, 27 September 2004 (Previously considered) 

Х Orders Number 032-06, 1 February 2005 (Previously considered) 

Х Witness Statements (Previously considered) 

Х Casualty Feeder Cards (Previously considered) 

Х Enlisted Record Brief (Previously considered) 

Х DD Form 214 (Certificate of Release or Discharge from Active Duty) and DD Form 215 (Correction of DD Form 214) (previously considered  

Х ABCMR Docket Number AR20160018534, dated 20 August 2019 

Х Several emails and letters 

Х Congressional Correspondence 

Х Letter from the National Archives 


 
FACTS: 
 
1.  Incorporated herein by reference are military records which were summarized in the previous consideration of the applicant's case by the Army Board for Correction of Military Records (ABCMR) in Docket Number AR20160018534 on 20 August 2019. 
 
2. The applicant states: 
a.  On 30 December 2003 while in Baghdad, Iraq, his high mobility multi-purpose wheeled vehicle (HMMWV) was directly hit by an improvised explosive device (IED). The citation of his Army Commendation Medal stated that the applicant was subject to an IED attack "in which he was wounded". During the attack he was thrown across the HUMVEE which he was driving to the passenger side of the vehicle and was rendered unconscious. Following the attack, the applicant's convoy returned to the FOB Striker where he and others in his unit were diagnosed by Major Dr. R___ W___-M___ as having concussive symptoms and ordered to receive treatment at the 28th Combat Support Hospital (CSH). At the 28th CSH, the applicant and the others were diagnosed as having concussions, ordered to quarters with only light duty for several days and stayed within FOB Striker for a week for observation purposes. 
 
b.  Army Regulation provides that a service member shall receive the Purple Heart when he is "wounded ... in any action against an enemy of the United States." A wound qualifies a soldier for the award when there is an "injury caused by enemy emplaced trap, mine, or other improvised explosive device."  Further, official guidance from the Army Human Resources Command (AHRC) Awards and Decorations Branch states that "concussion injuries caused as a result of enemy generated explosions" "clearly justify" the award of a Purple Heart. Unlike other service awards, one receives the Purple Heart because he or she is entitled to it, rather than recommended for it. 
 
c.  The applicant previously petitioned the Army Board for Correction of Military Records (ABCMR) for correction of his Army records to award him the Purple Heart for injuries sustained from the IED attack in Baghdad on 30 December 2003. His petition was denied on 20 August 2019, due to "insufficient medical evidenceФ. In making its decision, the Board mistakenly concluded that the applicant had a hearing evaluation in Iraq a few days after the IED attack when the evaluation was actually conducted months later in Iraq which indicated that the applicant was still have hearing issues. 
 
d.  His medical records covering his treatment after being wounded in the IED attack in December 2003 cannot be located by the Army, the Department of Veterans Affairs or the National Personnel Records Center and have apparently been lost or misplaced (or possibly destroyed without any fault of the applicant. In lieu of his medical records, he can demonstrate the veracity of his claim through other documentation that he received a concussion as a result of the IED attack in Baghdad in December 2003, thus qualifying him for an award of the Purple Heart. (See full statement). 
 
e.  His request is related to post-traumatic stress disorder (PTSD), traumatic brain injury (TBI) and his deployment in support of Operation Iraqi Freedom. 
 
3.  The applicant enlisted in the Regular Army on 8 August 2001. He held military occupational specialty 21B, Combat Engineer. He has service in Iraq from 2 May 2003 to 2 July 2004. 
4.  The applicant provides: 
 
a.  A witness statement issued by Captain J____ which shows, upon arrival back to the 2nd Brigade Combat TeamТs headquarters, all members of the convoy were given examinations by the Brigade Surgeon, then most of them were taken to the 28th CSH. The blast was within two meters or less of the convoy. The battalion later found out that the explosion was a 122 mm mortar round. The vehicle windshields were shattered, and there was shrapnel damage to the body of the vehicle and blown out tires. Due to the SoldiersТ close proximity and the magnitude of the explosion, all suffered concussions, and two Iraqis were killed. 
 
b. Award of the ARCOM for meritorious service during Operation Iraqi Freedom [applicantТs] actions during an IED detonation, in which he was badly woundedЕФ 
 
c. Medical records dated 29 May 2004, which show in part the applicant reports exposure to IED blast in December 2003, and difficulty hearing. 
 
d.  A follow up hearing test completed on 21 January 2005. 
 
e.  Casualty feeder cards, dated 6 April 2005, which shows J____ C____ states the applicant was struck by an IED in Iraq and evacuated to 28th CSH for a concussion and inability to hear. The casualty feeder cards dated 6 April 2005 state that while driving through Baghdad, one truck was struck with an IED, throwing the applicant from his seat. He later couldnТt hear and was evacuated to the Brigade Surgeon, then later to the 28th Combat Support Hospital. The applicantТs feeder card states on 30 December 2003 while driving through Baghdad, they were struck by an IED, and he was thrown from his seat and became disoriented. They were evacuated to the Brigade Surgeon then later to the 28th Combat Support Hospital. 
 
 f.  letter from the National Archives in reply to his Freedom of Information Act request of November 6, 2020, for operational and medical records from his service in Iraq to verify a Purple Heart. The letter informed him who has custody of his records and how/where to request them.  
 
 g. Email, dated 7 February 2020, from the Awards and Decorations Branch informing him that he must be administratively disapproved by this office (HRC) before he can appeal to the ABCMR. If he has not already done so, he should put together as much of this as possible and submit in hard copy to the address below. Once received, all requests for administrative correction or determination concerning awards are answered in the order of receipt. 
 
5.  On 7 August 2005, the applicant was honorably released from active duty. He completed 4 years of net active service and was awarded or authorized the Army 
Commendation Medal (2nd Award), Army Achievement Medal (2nd Award), Presidential Unit Citation (Army), Army Good Conduct Medal, National Defense Service Medal, Global War on Terrorism Expeditionary Medal, Army Lapel Button, Global War on Terrorism Service Medal, Overseas Service Ribbon, Overseas Service Bar (2nd Award), Parachutist Badge, Driver and Mechanic Badge with Driver T-Bar, Driver and Mechanic Badge with Driver W-Bar. 
 
7.  The applicant provides: 
 
a.  A witness statement issued by Lieutenant Colonel C_____ which shows at the time of the incident he was the Battalion Commander for the 40th Engineer Battalion, 1st Armored Division. He states the applicant was in the convoy at the time of the IED detonation. It was explained to him that all Soldiers in the convoy received a concussion. 
 
b.  A DD Form 215 (Correction of the DD Form 214) issued on 7 December 2006, which shows the applicant was awarded the Combat Action Badge. 
 
8.  On 24 October 2012, the U.S. Army Human Resource Center (HRC) responded to the applicant stating, additional documentation was needed in support of his request for award of the Purple Heart. HRC requested medical documentation describing both diagnosis and treatment of injuries caused by the enemy and audiograms from before and after deployment. 
 
9.  On 4 August 2016, HRC responded to a Member of Congress stating they were unable to authorize an award of the Purple Heart at this time. They had yet to receive military medical documentation from immediately after, or close to, an incident during which the applicant was wounded by enemy action. 
 
10.  On 20 August 2019, in ABCMR Docket Number AR20160018534, the Board denied the applicantТs request for award of the Purple Heart. The Board stated per the regulatory guidance on awarding the Purple Heart, the applicant must provide or have in his service records substantiating evidence to verify that he was injured, 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. After reviewing the application and all supporting documents, the Board found insufficient medical evidence to meet the regulatory standard for the Purple Heart and thus recommended denying the request. 
 
BOARD DISCUSSION: 
 
1.  The Board determined 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 applicantТs contentions, the military record, and regulatory guidance were carefully considered. 
 
 a.  The evidence shows the applicantТs HMMWV was involved in an IED explosion in Iraq on 30 December 2003. He contends he was thrown across the HMMWV which he was driving to the passenger side of the vehicle and was rendered unconscious and that following the attack, he and others in his unit were diagnosed as having concussive symptoms and ordered to receive treatment at the 28th Combat Support Hospital (CSH). He also contends at the 28th CSH, he and the others were diagnosed as having concussions, ordered to quarters with only light duty for several days and stayed within FOB Striker for a week for observation purposes.  
 
 b.  There are no contemporaneous medical record showing the applicant received wounds/injuries caused by enemy forces that required treatment by medical personnel.  In addition, the applicant contends he sustained a concussion. The governing regulation provides that for award of the Purple Heart, evidence provided must indicate he suffered, as a result of hostile action, a concussion or TBI so disabling as 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 incident. The applicant has no medical documentation showing a loss of consciousness nor that shows he was restricted from duty for a period equaling 48 hours or more. The applicantТs contended incident 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 
 
xx: xx: xx: 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 to amend the decision of the ABCMR set forth in Docket Number AR20160018534 on 20 August 2019. 
 
  8/15/2023

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 (Military Awards) 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. 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: 
 
Х Diagnosis of concussion or mild traumatic brain injury 

Х Any period of loss or a decreased level of consciousness 

Х Any loss of memory for events immediately before or after the injury 

Х 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, and so forth) that may or may not be transient. Intracranial lesion (positive computerized axial tomography or magnetic resonance imaging scan) 


 
b. The following nonexclusive list provides examples of medical treatment for concussion that do meet the standard of treatment necessary for award of the PH: 
 
Х Referral to neurologist or neuropsychologist to treat the injury 

Х Rehabilitation (such as occupational therapy, physical therapy, and so forth) to treat injury 

Х Restriction from full duty for a period of greater than 48 hours due to persistent signs, symptoms, or physical finding of impaired brain function 


 
Combat theater and unit command policies mandating rest periods or Уdown timeФ following incidents do not constitute qualifying treatment for concussion injuries. To qualify as medical treatment, this rest period must have been directed by a medical officer or medical professional for the individual after diagnosis of an injury. 
 
c. The following nonexclusive list provides examples of medical treatment for 
concussion that do not meet the standard of treatment necessary for award of the PH: 
 
Х Limitation of duty following the incident (for example, limited duty, quarters, and so forth) 

Х Pain medication (such as acetaminophen, aspirin, ibuprofen, and so forth) to 


treat injury, such as headache 
 
2.  Army Regulation 15-185 (Army Board for Correction of Military Records), paragraph 2-11, shows applicantТs do not have a right to a hearing before the ABCMR. The Director or the ABCMR may grant a formal hearing whenever justice requires. 
 
//NOTHING FOLLOWS//