IN THE CASE OF: BOARD DATE: 18 August 2023 DOCKET NUMBER: AR20230002322 APPLICANT REQUESTS: award of the Purple Heart (PH), a hearing before the board via video or phone, and correction of his: * Active-duty medical records to show Traumatic Brain Injury * Combat-Related Special Compensation approval letter to show Traumatic Brain Injury APPLICANT'S SUPPORTING DOCUMENT(S) CONSIDERED BY THE BOARD: * DD Form 149 (Application for Correction of Military Record), 25 November 2022 * Self-authored letter, 22 November 2022 * Enlisted Record Brief * DD Form 214 (Certificate of Release or Discharge from Active Duty) * Combat-Related Special Compensation letter, 17 December 2015 * General Surgery Consult Note, 12 July 2022 * two medical doctor letters, dated 21 September and 19 October 2022 * Veterans Affairs Rating Decision letter, 9 November 2015 * three U.S. Army Human Resources Command letters, dated August-September 2021, and 14 November 2022 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: a. During his deployment to Afghanistan he was working in the explosive ordnance disposal (EOD) pit. They were just finished searching a group of vehicles by hand and the drivers and the trucks were cleared to enter the final checkpoint into the Forward Operating Base (FOB). He opened the gate to the EOD pit for the trucks to exit the inspection area. An 18-wheeler truck passed by with an Afghani-enemy operator and detonated a vehicle borne improvised explosive device (VBIED) directly in front of him, which threw him against the wall. The injury caused mild Traumatic Brain Injury (TBI) and a piece of shrapnel to be lodged in his rib cage. At the time he did not realize he had shrapnel inside of him, he thought it was just a cut and bruise from getting thrown into the wall. b. His (TBI) is recognized as being service connected with the Veterans Affairs (VA) and he will like it to be added to his military medical records and current Combat- Related Special Compensation (CRSC) approval letter. He is requesting award of the Purple Heart (PH) due to the shrapnel in his chest. The shrapnel was confirmed years later. He started having issues with the area, was sent to the VA s imaging department, and a CT scan confirmed that it was a piece of shrapnel. At the time of his injury, he did not seek immediate medical treatment. He was slotted to return to Germany and seek treatment at Landstuhl Regional Medical Center for his hip. He was medically reclassed through the medical retention program on 10 December 2012. c. He applied for the Purple Heart (PH) three times through the Department of Army Human Resources (AHRC) awards and decorations branch. He has provided two professional medical statements by a VA surgeon and the poly trauma doctor in regard to the shrapnel in his chest and treatment for TBI. AHRC will not approve his request for award of the Purple Heart and stated they needed military medical documentation of treatment immediately after or close to the incident date. (See full statement). 3. On 2 February 2010, the applicant enlisted in the Regular Army. 4. The applicant served in Afghanistan from 7 May 2012 to 20 August 2012. 5. On 26 May 2015, he was medically retired from active duty due to a temporary disability. His DD Form 214 shows he completed 5 years, 3 months, and 25 days of net service this period. Block 24 show he was awarded or authorized: * Afghanistan Campaign Medal with two bronze service stars * Army Achievement Medal (2nd Award) * Army Good Conduct Medal * National Defense Service Medal * Global War on Terrorism Service Medal * Army Service Ribbon * Overseas Service Ribbon * North Atlantic Treaty Organization Medal 6. A VA decisions letter, dated 9 November 2015, shows in part the applicant s service connection for TBI is granted with an evaluation of 0 percent effective 27 May 2015. Evaluation of PTSD with major depressive (claimed as anxiety, insomnia, and depression) which was 50 percent disabling increased to 100 percent, effective 21 September 2015. In the applicant s service treatment records, he reported that he hit his temple on an aircraft in Afghanistan in 2012. The reports on his recent VA examination fit the criteria of a mild TBI. 7. The applicant provides a letter issued by AHRC, 17 December 2015, that shows in part, the approval of his claim for CRSC. The letter states: * PTSD with major depressive disorder, 50 percent service connected, effective June 2015 to September 2015, PEB (Physical Evaluation Board) states that this is combat related YES . * PTSD with major depressive disorder, 100 percent service connected, effective October 2015, PEB states that this is combat related YES . 8. His DA Form 199 (Informal Physical Evaluation Board Proceedings), dated 23 May 2016, shows, in part, the board finds the applicant was physically unfit and recommended a rating of 100% and a permanent disability retirement. The applicant s conditions were determined to be incurred or aggravated in the line of duty in a duty status authorized by 10 USC 1201(c) or 10 USC 1204. His ratings were as follows: * PTSD was rated at 100 percent * Right hip cam impingement syndrome with labral tear and repair was rated at 10 percent * Right hip cam impingement syndrome with labral tear and repair (extension) was rated at 0 percent * Right hip cam impingement syndrome with labral tear and repair (impairment of thigh) was rated at 0 percent 9. The applicant provides: a. A General Surgery Consult Note, issued by medical doctor (MD) S____ D____ jr., dated 12 July 2022, that shows in part, applicant reported sustaining a blast injury in Afghanistan. As result he has a metallic foreign body within his right chest on x-ray. The applicant states this foreign body causes him intermittent discomfort at times. On physical exam there is a punctate scar overlying the area at the right chest near the level of the diaphragm. A CT scan revealed, a small nine-millimeter metallic density foreign body in the subcutaneous soft tissues along the inferior lateral right chest wall adjacent to the right eighth rib, correlating with questioned finding on prior chest x-ray completed on 10 August 2021. b. A letter issued by MD S____ D____ jr., shows, it is his medical opinion that the applicant has a retained metallic density within the right chest subcutaneous tissue consistent with shrapnel. It is highly plausible that this occurred from VBIED blast injury. The aforementioned injury caused by the enemy could have required treatment if medical attention were sought close to the incident date. c. A letter issued by MD R____ M____, shows, it is his medical opinion that the applicant suffered a concussion or mild TBI due to a vehicle IED blast in 2012. The event results in loss and alteration of consciousness as well as cognitive, physical, and neurobehavioral deficits. The applicant has received treatment for his said impairments through the polytrauma rehabilitation TBI clinic. The aforementioned injury caused by the enemy could have required treatment if medical attention were sought close to the incident date. 10. On 14 November 2022, in response to the applicant s request for award of the PH, AHRC, stated that they remain unable to take favorable action. As stated, multiple times in past correspondence, the office requires military 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 600-822 (Military Awards), paragraph 2-8. Post deployment medical documentation such as the provided letters from current physicians cannot be utilized as the primary justification for award. 11. By regulation (AR 600-8-22 - Military Awards), 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. 12. 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 a Purple Heart for a mild traumatic brain injury (mTBI). He states: I have applied for the purple heart three times through the Department of Army Human Resource Command awards and decorations branch. Even though I have provided two different professional medical statements by a VA surgeon and a VA poly-trauma doctor in regards to the shrapnel in my chest and TBI treatment and therapy that I have received from the VA. As I did not initially seek treatment for the shrapnel wound or officially for my TBI received from a VBIED [vehicle borne improvised explosive device] blast while assisting with FOB [forward operating base] operations in the EOD [explosive ordnance disposal pit in Afghanistan. HRC [Human Resource Command] will not issue the purple heart award until military 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]. The main reason I m pursuing the purple heart award is for shrapnel in my chest. At the time of the blast, I was unaware that a piece of shrapnel was lodged in my rib cage. I thought this was a wound that was caused from being thrown into a HESCO [Brand name for a container manufactured by HESCO Bastion Ltd.] barrier. The shrapnel wasn't confirmed until many years later as I started having issues with the area VA imaging confirmed it is a piece of shrapnel. I did not seek immediate medical treatment as I was already slotted to return to Germany and seek treatment at Landstuhl Regional Medical Center (LRMC). c. The Record of Proceedings details the applicant s military service and the circumstances of the case. His DD 214 shows he served in Afghanistan from 7 May 2012 thru 20 August 2012. d. Paragraph 2-8 of AR 600-8-22, Military Awards (15 September 2011), 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 e. Paragraph 2-8k(3) of 600-8-22 succinctly lists the requirements for this award: Each approved award of the Purple Heart must exhibit all of the following factors: wound, injury or death must have been the result of enemy or hostile act; international terrorist attack; or friendly fire (as defined in paragraph b(8) above) the wound or injury must have required treatment by medical officials; and the records of medical treatment must have been made a matter of official Army records. f. 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. g. Paragraph 4C: A Medical Officer is Defined as a Physician with Officer Rank. AR 600-8-22 requires the Soldier to be treated by a military physician or treated by a medical professional other than a medical officer {e.g., a physician, corpsman, or combat medic} 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 (paragraph 2-8c(3). h. No such contemporaneous medical documentation was submitted with the application or found in the EMR. i. JLV shows the applicant to have a VA service-connected disability rating of 0% for Traumatic brain disease. However, a finding of service connection does not evidence a wound was incurred in a manner which warrants the awarding of the Purple Heart. j. It is the opinion of the ARBA medical advisor there is insufficient documentation in the official record to warrant reversal USAHRC s previous denial of the awarding of the Purple Heart 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 Board carefully considered the applicant s contentions, the military record, and regulatory guidance. In events involving TBI, documentation must show that the brain injury or concussion was 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. 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 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 Board determined 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, 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) prescribes Army policy, criteria, and administrative instructions concerning individual and unit military awards. a. The Purple Heart is awarded to any member who, while serving under competent authority in any capacity with one of the Army Services, has been wounded or killed or who has died or may hereafter die after being wounded: (1) In any action against an enemy of the United States; (2) In any action with an opposing armed force of a foreign country in which the Armed Forces of the United States are or have been engaged; (3) While serving with friendly foreign forces engaged in an armed conflict against an opposing armed force in which the United States is not a belligerent party; (4) As a result of an act of any such enemy of opposing armed forces; (5) As a result of an act of any hostile foreign force; (6) After 23 March 1973, as a result of an international terrorist attack against the United States or a foreign nation friendly to the United States, recognized as such an attack by the Secretary of the Army, or jointly by the Secretaries of the separate armed services concerned if persons from more than one service are wounded in the attack; (7) After 28 March 1973, as a result of military operations while serving outside the territory of the United States as part of a peacekeeping force; or (8) Members killed or wounded by friendly fire. 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, and the medical treatment must have been made a matter of official record. 3. Section 1556 of Title 10, United States Code, requires the Secretary of the Army to ensure that an applicant seeking corrective action by the Army Review Boards Agency (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 Army Board for Correction of Military Records applicants (and/or their counsel) prior to adjudication. 4. Army Regulation 15-185 (Army Board for Correction of Military Records), paragraph 2-11, shows applicant s 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// ABCMR Record of Proceedings (cont) AR20230002322 1 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1