IN THE CASE OF: BOARD DATE: 19 September 2023 DOCKET NUMBER: AR20230001828 APPLICANT REQUESTS: reversal of the decision by the Awards and Decorations Branch at the U.S. Army Human Resources Command that denied him the Purple Heart. APPLICANT'S SUPPORTING DOCUMENT(S) CONSIDERED BY THE BOARD: • DD Form 149 (Application for Correction of Military Record) • 2-page self-authored statement • Memorandum, U.S. Army Human Resources Command (HRC), 26 September 2022 • 4 Witness Statements • 2 DA Forms 4856 (Developmental Counseling Form) • 2-page Standard Form 600 (Chronological Record of Medical Care) • 5-page DD Form 2900 (Post-Deployment Health Re-Assessment • Military Personnel (MILPER) Message Number 22-215, 8 June 2022 • Enlisted Record Brief (ERB), 30 September 2022 • 2-page HRC PH webpage • DA Form 4187 (Personnel Action) FACTS: 1. The applicant states, in effect: a. On 26 September 2022, HRC disapproved his request for entitlement to the Purple Heart (PH). HRC cited the long-term effects of his perforated eardrum were not sufficient enough to award the PH. Long-term effects are not criteria for the PH, but the wound sustained by enemy act, is. As of 27 September 2022, a day after HRC's decision, they now list a perforated eardrum on their website as an example of an enemy-related injury which clearly justifies award of the PH. The HRC response states that their denial is based on hearing loss and/or tinnitus. This is incorrect, these are conditions from the wound, but they are not the wound itself. The question is not of long term, but if in fact a wound did occur. He provides medical documents which clearly state he had a perforated eardrum from an enemy improvised explosive device (IED). b. A perforated eardrum is in the purpose line of MILPER Message Number 22-215. At the time of the wound from the IED, his perforated eardrum was severe enough that the base physician assistant (PA) medically evacuated (MEDEVAC) him from his infantry line unit to a combat support hospital (CSH). As annotated by the 86th Combat Support Hospital (CSH) medical officer, it took him a week from the time of wound and departing his unit to get to the CSH due to sandstorms and grounded air transportation. Furthermore, the CSH medical officer also confirmed his perforated eardrum was still very visible a week after being wounded by the IED. His Army Reserve Commanding General and Command Surgeon General have also validated that his perforated eardrum qualifies for the PH. c. On 24 April 2008, at approximately 1400 hours, his platoon from Company B, 2nd Battalion, 30th Infantry Regiment, 4th Brigade Combat Team, 10th Mountain Division, was conducting a mounted patrol on the outskirts of Sadr City, Iraq. [The applicant] was the gunner in the lead Humvee. Their mission was to talk to the Iraqi Police at the Iraqi Police Checkpoint. On their way back to Combat Out Post (COP) Hope, his Humvee struck an IED. The force of the explosion threw him towards the back of the gunners hatch and he blacked out. When he woke, his head was on top of his arms on top of the Humvee. He received numerous pats on his legs from his truck commander, driver, and dismounts. His ears were ringing, and snot was coming down his face. When he woke, he was disoriented, and confused for a few moments, the air was full of smoke and dust, he then realized what had happened. d. He was treated by the platoon line medic who took him to the COP PA since he was feeling nauseous, a little dizzy, and still could not hear properly. The COP PA gave him some medicine and told him to lie down but not to fall asleep for fear of head injury. The COP PA could see that he had "a hole in his left ear drum", also known as a "perforated eardrum, and tympanic membrane perforation." The COP PA treated the "perforation eardrum", a hole in his eardrum, and determined it severe enough to MEDEVAC him so he could be further evaluated. He was MEDEVAC'd to a larger Forward Operating Base (FOB) where he remained for several days as a sandstorm came in and turned the air RED for 6 days preventing flights and travel. While on the base, he repeatedly went to the aid station complaining of ear pain from the hole in his eardrum caused by the IED. After six days he was finally able to be flown to the 86th CSH in Baghdad, Iraq. e. While at the 86th CSH he was treated by Major (MAJ) O_. MAJ O__ confirmed in his medical report a week after the incident that he had a "tympanic membrane (TM) perforation", also known as a ruptured eardrum, and perforation eardrum in which the IED that exploded had caused the hole in his left eardrum which was observed by his COP PA six days prior. He was treated for the wound and given a hearing aid for hearing loss which he still wears to this day. His Post-Deployment Health Re-Assessment was performed in April 2009 after returning from the 15-month deployment. The hole in his eardrum from the IED explosion was in April 2008. His PHA states he was not wounded because he did not receive a PH in theater. His Post-Deployment Health Re-Assessment states he did not have a concussion because traumatic brain injury (TBI) was not acknowledged by the Army as needing medical treatment in 2008. 2. The applicant is currently serving in the U.S. Army Reserve in the rank/grade of sergeant first class/E-7. He served in Iraq from 29 November 2007 to 8 January 2009 and Afghanistan from 21 October 2010 to 1 July 2011. 3. On 26 September 2022, the Chief, Awards and Decorations Branch, HRC disapproved his request for award of the PH for service performed in support of Operation Iraqi Freedom. The memorandum to the applicant stated, "After a thorough review of the information provided, the forwarded recommendation for the PH does not meet the statutory guidance outlined in MILPER Message 22-215, paragraph 6: "The two critical factors commanders must consider are the degree to which the hostile force caused the wound, and whether the wound was so severe it required treatment by a medical officer." As the forwarded packet indicates, [the applicant's] primary treatment for a small tympanic membrane perforation was receiving a hearing aid for hearing loss and/or tinnitus (which does not constitute qualifying treatment as hearing loss/tinnitus are not qualifying conditions for award), we cannot justify issuance of the PH for this event." 4. The applicant provides a/an: a. Witness statement from Sergeant CG dated 31 March 2022, who states, in effect, on 24 April 2008, he was driving a Humvee and the applicant was the gunner. An IED exploded hitting the vehicle and their Rhino, putting a huge hole through it. When the explosion went off, they backed up to make sure there was no secondary explosives before continuing back to COP Hope. Once they arrived, the applicant went to see the medic PA and was subsequently MEDEVAC'd. b. Witness statement from the TC of the vehicle the applicant was in. He states after moving off the engagement areas, the crew was assessed by the base medics. The applicant was MEDEVAC'd that evening for ear trauma found by the base PA. The applicant was out of duty for roughly a week. c. Witness statement from PSR who states on 24 April 2008, he was the gunner on the truck behind the applicant’s truck. An IED exploded and he received a mild TBI. The applicant was MEDEVAC'd that night for ear trauma. d. Witness statement from First Sergeant JMS who states on 28 April 2008, he was conducting combat operations just north of COP Hope. The applicant's vehicle was struck by an IED. The applicant was evacuated later that night for hearing and possible brain trauma as recommended by the battalion PA. The applicant was out of duty for almost a week due to his injuries and was later returned to his unit at COP Hope. e. DA Form 4856 dated 11 May 2008, which notes the applicant was exposed to an IED at the end of the month and taken for evaluation. DA Form 4856 dated 1 June 2008, which states at the beginning of the month he returned from his evaluation after being very close to an IED explosion. f. SF 600 dated 1 May 2008, which notes he was seen at the 86th CSH, Baghdad, for a consultation with an audiologist. The audiology report noted a small TM perforation of the left ear. The results were indicative of bilateral conductive hearing loss, worse in the right ear. The left ear showed no change compared to a previous audiometry in July 2007. Unable to assess left middle ear compliance until the perforation healed. Meets H-2 profile rating. g. DD Form 2900 performed on 21 April 2009, in which he claimed being exposed to a blast or explosion from an IED, losing consciousness, suffering from ringing in the ears, and being unable to remember the event. h. MILPER Message Number 22-215, ERB, and two-page screenshot from the HRC website dated 27 September 2022, which lists the perforated eardrum (ruptured TM) as an example of an enemy-related injury which clearly justifies award of the PH. i. DA Form 4187 recommending approval of award of the PH for wounds/injuries received in action caused directly by the enemy on 24 April 2008, near Sadar City, Iraq. The applicant was MEDEVAC'd and medically treated at the 86th CSH for a perforated eardrum from an IED. 5. Army Regulation 600-8-22 contains the regulatory guidance pertaining to entitlement to the Purple Heart 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. 6. MEDICAL REVIEW: a. 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 (EMR – AHLTA and/or MHS Genesis)), 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 the Interactive Personnel Electronic Records Management System (iPERMS). The ARBA Medical Advisor made the following findings and recommendations: b. The applicant is applying to the ABCMR requesting reversal of the United States Army Human Resources’ Awards and Decoration Branch’s denial of his request for a Purple Heart for a perforated tympanic membrane (aka eardrum). He states: “20220926 HRC [United States Army Human Resources Command] denied award of Purple Heart after reviewing MILPER 22-215. HRC cited long term effects of my perforated eardrum were not sufficient enough to award the Purple Heart. Long term affects are not a criteria for the Purple Heart, but for the wound itself sustained by enemy act. As of 20220927 a day after HRCs decision memo to me, HRC now lists perforated eardrum as an example of enemy-related injuries which clearly justify award of the Purple Heart per the HRC website which I have enclosed with my packet. IAW MILPER 22-215 Purple Heart (PH) eligibility for perforated eardrum. The HRC memo states that the denial is based on hearing loss and/or tinnitus. This is incorrect, these are conditions from the wound, but they are not the wound itself. The question is not of long term, but if in fact a wound did occur. My medical documents clearly state I had a perforated eardrum (a hole in my eardrum) from an enemy IED [improvised explosive device].” c. The Record of Proceedings details the applicant’s military service and the circumstances of the case. The applicant is a Soldier in the USAR. d. Paragraph 2-8c of AR 600-8-22, Military Awards (5 March 2019), lists the criteria for the awarding of the Purple Heart: To qualify for award of the PH, the wound must have been of such severity that it required treatment, not merely examination, by a medical officer. A wound is defined as an injury to any part of the body from an outside force or agent. A physical lesion is not required. Treatment of the wound will be documented in the member’s medical and/or health record. 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. 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 (to include SF medics). Medics (such as combat medics - MOS 68W) are not physician extenders. A medical officer is defined as a physician with officer rank. e. The applicant’s 1 May 2008 AHLTA encounter at the 86th Combat Support Hospital shows he was found to have a small perforation of his left tympanic membrane, there was no left ear hearing loss associated with IED blast, and the injury required no treatment: “Patient is a 19-year-male AD/USA [active-duty United States Army] complaining of left ear hearing loss following IED [improvised explosive device] 6 days ago. Reports ringing in ears has subsided and no tinnitus at this time. No vestibular complaints. No drainage. History of ear infections and ear surgery 2x for Cholesteatoma in right ear 2000 & middle ear reconstruction and eardrum graph 2003. Outer ear & eardrums: Right ear graph no infection, and Left ear with small TM perforation. IMPRESSION: Results indicative of bilateral conductive hearing loss, worse for right ear. Left ear shows no change compared to audiometry July 07. Unable to assess left middle ear compliance until perforation heals. Plan: He has H-2 profile – caution when assigned duties that require acute hearing ability (sentry, communication responsibilities, etc.) due to potential difficulty detecting soft warning sounds. Return for recheck in 1-2 months and continue to check with PA [physician assistant] to monitor left ear perforation and avoid infection. Keep left ear dry until eardrum perforation is healed. May consider hearing aid for left ear when perforation heals. f. As noted above, AR 600-8-22 requires the Soldier’s wound to have required treatment by a military physician. There is no contemporaneous medical documentation or other probative evidence the applicant’s wound required such treatment at that time. g. MILPER Message Number 22-215 Title: Purple Heart for Perforated Eardrum (8 June 2022) stated purpose is “To announce the Purple Heart (PH) medal eligibility for perforated eardrum wounds for personnel who served during qualifying periods established for this award. Paragraph 6 maintains the requirement the wound required treatment by a medical officer: “Commanders will consider two critical factors when considering eligibility for the PH for perforated eardrum. The two critical factors are the degree to which the enemy or hostile force caused the wound, and whether the wound was so severe that it required treatment by a medical officer.” h. While the fact the applicant’s perforated TM was caused by enemy action is not questioned, it is the opinion of the ARBA medical advisor there is insufficient documentation in the official record to warrant reversal of the United States Army Human Resources’ Awards and Decoration Branch’s previous denial of his request for a Purple Heart for the applicant’s perforated tympanic membrane IAW of AR 600-8-22. 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 applicant complained of and was seen for left ear hearing loss following IED explosion. He reported ringing in ears which had subsided and no tinnitus at the time. The results were indicative of bilateral conductive hearing loss, worse for right ear. When awarding the Purple Heart, the two critical factors commanders must consider are the degree to which the hostile force caused the wound, and whether the wound was so severe it required treatment by a medical officer. The applicant’s treatment in this case was for a small tympanic membrane perforation; he was receiving a hearing aid for hearing loss and/or tinnitus. This does not constitute qualifying treatment as hearing loss/tinnitus are not qualifying conditions for award. Additionally, the Board reviewed and agreed with the medical advisor’s finding that while the fact the applicant’s perforated tympanic membrane was caused by enemy action is not questioned, the Board found insufficient documentation in the official record to warrant reversal of the AHRC previous denial of his request for a Purple Heart for the applicant’s perforated tympanic membrane IAW of AR 600-8-22. 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 for correction of the records of the individual concerned. 9/19/2023 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 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 wound and was the wound so severe that it required treatment by a medical officer. d. Some examples of enemy-related actions which justify eligibility for the PH 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. e. Some examples of injuries which do not justify eligibility for the PH are as follows: (1) Disease not directly caused by enemy agents. (2) Accidents, to include explosive, aircraft, vehicular, and other accidental wounding not related to or caused by enemy action. (3) Abrasions or lacerations (unless of a severity requiring treatment by a medical officer). (4) Bruises or contusions (unless caused by direct impact of the enemy weapon and severe enough to require treatment by a medical officer). (5) Soft tissue injuries (for example, ligament, tendon or muscle strains, sprains, and so forth). (6) Hearing loss and tinnitus (for example: ringing in the ears, ruptured TM. f. It is not intended that such a strict interpretation of the requirement for the wound to be caused by direct result of hostile action be taken that it would preclude the award being made to deserving personnel. Commanders must take into consideration the circumstances surrounding a wound. Note the following examples: (1) In a case such as an individual injured while making a parachute landing from an aircraft that had been brought down by enemy fire; or, an individual injured as a result of a vehicle accident caused by enemy fire, the decision will be made in favor of the individual and the award will be made. (2) Individuals injured as a result of their own negligence (for example, driving or walking through an unauthorized area known to have been mined or placed off limits or searching for or picking up unexploded munitions as war souvenirs) will not be awarded the PH as they clearly were not injured as a result of enemy action, but rather by their own negligence. 2. MILPER Message Number 22-215, PH for Perforated Eardrum, was issued on 8 June 2022, to announce the PH for perforated eardrum wounds for personnel who served during qualifying periods for the award. The message is to expire 1 year after the issue date and states: a. Current Army policy prohibits the award of the PH for perforated eardrum (ruptured TM). b. Effective immediately, the U.S. Army will recognize a perforated eardrum (ruptured TM) as a qualifying injury for award of the PH provided all below-listed requirements are met. c. Applications for award of the PH will include the following documentation pertaining to the wound and inflicting force: (1) DA Form 4187 (for currently serving members) or written request (for veterans). (2) Chain of command endorsement (through the first general officer in the Soldier’s current chain of command for currently serving members). (3) Deployment orders. (4) DA Form 4037 (Officer Record Brief), Enlisted Record Brief, DA Form 20/2-1/66 (Personnel Qualification Record), or other substantiating personnel qualification records for veterans. (5) One-page narrative describing the qualifying incident and the conditions under which the member was injured or wounded. (6) Statements from at least two individuals, other than the proposed recipient, who were personally present, observed the incident, and have direct knowledge of the event. Alternatively, other official documentation may be used to corroborate the narrative. (7) Casualty report (if available). (8) SF 600 (Chronological Record of Medical Care), SF Form 502 (Clinical Records), or equivalent military medical document. (9) DD Form 214 (Certificate of Release or Discharge from Active Duty), WD Form AGO 53-55, or WD Form AGO 53-98 (Official Certificate of Release or Discharge from Active Duty) (if applicable). (10) Morning, Unit, and/or Situation Reports. d. Commanders will consider two critical factors when considering eligibility for the PH for perforated eardrum. The two critical factors are the degree to which the enemy or hostile force caused the wound, and whether the wound was so severe that it required treatment by a medical officer. e. The Army is encouraging Soldiers and Veterans who were previously denied the PH for perforated eardrum injuries to resubmit documentation for reconsideration. Soldiers currently serving in the Active Army, Army Reserve, or Army National Guard must resubmit through their company commander (or equivalent). It is the responsibility of the individual Soldier or Veteran to resubmit. 3. Army Regulation 15-185 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//