IN THE CASE OF: BOARD DATE: 3 November 2023 DOCKET NUMBER: AR20230004022 APPLICANT REQUESTS: • award of the Purple Heart (PH) • a personal appearance before the Board APPLICANT'S SUPPORTING DOCUMENT(S) CONSIDERED BY THE BOARD: • DD Form 149 (Application for Correction of Military Record) • Signature Page • Purple Heart request Letter - 2005 • LOD and military medical records • DD Form 214 (Certificate of Release or Discharge from Active Duty) • Post deployment assessment survey - 13 October 2007 • Profile 22 April 2008 • post-deployment assessment April 2008 • NGB Form 22 - 16 January 2009 • Neurologist Medical Records - 2011 • Tucson Family Care medical records - 2015 • Traumatic Brain Injury (TBI) clinic medical record 9 - 2016 • VA decision - 9 January 2016 • VA evaluation -Traumatic Brain Injury (TBI) • VA evaluation - headaches • Las Vegas neurology medical records 2021 • VA burn pit notification letter 27 January 2023 • Army HRC denial letter, 10 January 2023 • Report on TBI Screening - 2007/8 (120 pages) • Army Regulation 600-8-22 excerpt for PH and TBI 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. His military record needs to be corrected to award him the Purple Heart for being wounded in an Improvised Explosive Device (IED) explosion while deployed to Iraq with the United States Army. He sustained a Traumatic Brain Injury (TBI) and other wounds in that IED explosion. As a result, the U.S. Department of Veterans Affairs (VA) rated him 100% totally and permanently disabled. b. He enlisted in the Alaska Army National Guard, 297th Infantry Regiment, as a drill status guardsman on January 17, 2003; was ordered to active duty and deployed to Iraq with the U.S. Army 10 October 2004 until his honorable discharge on 2 February 2006. c. On October 26, 2005, while serving as gunner in an armored Humvee during a nighttime patrol of Bagdad, Iraq his Humvee was hit by an IED. The IED explosion slammed the front left part of his head against the gunner turret, knocking him unconscious even though he was wearing a helmet. He was hit by shrapnel, which also hit his ammunition belt causing a secondary explosion in front of him that slammed him back against the turret’s back wall. He lost consciousness and when he regained consciousness, the other Soldiers in the Humvee were shaking his legs and asking if he was all right. He did not know it at the time and would not find out until years later he had sustained a TBI. d. The Army did not screen for, diagnose, or treat his TBI. The Humvee was totaled and had to be towed back to the base, where he immediately sought medical treatment at the battalion aid station. He saw a medical corps officer, reporting that he was nauseous, had a headache, and that his ears were hurting and ringing nonstop, among other symptoms. Because he did not have an otoscope, the officer physically looked at his ears and said that he did not think his eardrums were ruptured, but he could not give him a hearing test. He gave him Motrin for the headaches and bandages for his shrapnel wounds but said the battalion aid station did not have anything else to treat him with. e. He was sent back out on patrol mere hours later even though he still had nausea, headaches, and ringing ears. The nausea lasted for approximately 24 hours, the headaches lasted for approximately a week, and the nonstop ringing ears lasted for about 4 weeks. The headaches and tinnitus persist to this day. He believes that being sent back out on patrol immediately after sustaining his TBI exacerbated his TBI. f. Treatment of a TBI and associated wounds were not available at the time because the battalion aid station was unprepared to address TBIs and IED blast injuries, they did not even have an otoscope with which to properly examine his ears, and at the time, the U.S. Army did not screen for TBIs, let alone treat them. It was not until 2008, more than two years after he returned from deployment, that the Army started screening servicemembers for TBIs. g. After his deployment, he returned to drill status with the Alaska Army National Guard until he was honorably discharged on January 16, 2009. However, his health has deteriorated since his deployment. He has repeatedly complained of and sought medical treatment for his wounds from the IED explosion and was deemed medically non-deployable due to those wounds. h. He was diagnosed with the TBI in 2011 when his wife took him to a neurologist, Dr. M__ B__. Even then, the neurologist informed him that most magnetic resonance imaging (MRI) technology at the time was not strong enough to detect TBIs. As a result, he did not get an MRI scan until 2016, when the TBI clinic at the Joint Base Elmendorf-Richardson (JBER) Hospital informed him that MRI technology could detect TBIs had recently become available and ordered the specialized MRI scan for him. i. The MRI scan confirmed his TBI and showed brain damage – specifically, white matter and loss of brain volume – to the left temporal and front lobe structures, which were the exact same part of his head that was slammed against the gunner turret in the IED explosion. In 2021, he again underwent another specialized MRI scan, which again confirmed his TBI in the same part of his brain. In addition, his 2021 MRI results showed signs that he had unknowingly suffered a mild stroke associated with the TBI that was caused by the IED explosion. He now has had two separate MRI scans confirming that he had a TBI on October 26, 2005. In addition to his TBI, he was later diagnosed with PTSD and other disabilities. j. He has suffered for many years from chronic pain, debilitating headaches, memory loss, and depression. He has also been hospitalized in the past for suicidal ideations. He believes he meets the criteria for award of the Purple Heart due to a TBI. 3. The applicant provides the above listed documents, which includes a significant number of medical records. Additionally, the below documents: a. A letter from Army Human Resources Command (HRC) wherein the applicant requested award of Purple Heart due to a TBI. HRC denied his request on 10 January 2023 stating the VA Benefit Rating decision, while was helpful, could not be utilized post-deployment medical documentation or diagnoses as the sole justification for award of the Purple Heart; they could not conclusively link his 2016 diagnosis of a TBI to the specific events of October 26, 2005. As such, in the absence of military medical documentation reflecting diagnosis of and treatment for a qualifying injury in theater, they could not verify his eligibility for award of the Purple Heart. b. The applicant also provided copies of Army Regulation 600-8-22 (Military Awards) for the Purple Heart and TBIs, and a copy of a 2007 Army Report on TBI Screening. The report recommended the establishment and formalization of procedures for reporting and evaluating cases of TBIs. 4. The applicant enlisted in the Army National Guard (ARNG) on 17 January 2003, ordered to Initial Active Duty for Training on 21 August 2003, he completed training with award of the military occupational specialty 11B (Infantryman) and was honorably released from active duty to his ARNG unit. The available record does not contain a copy of his DD From 214 for his period of initial active duty training. 5. The applicant was ordered to active duty on 10 October 2004 in support of Operation Iraqi Freedom. The available records do not include any specific dates of deployments; however, the applicant identified the deployment dates. 6. The applicant was involved in an IED explosion on or about 26 October 2005. A Statement on Medical Examination and Duty Status, dated 3 November 2005, shows the applicant was injured in the line of duty with complaints of ringing in the ears and laceration to his right ring finger. 7. The applicant was honorably released from active duty on 2 February 2006 in the grade of E-4. The DD Form 214 shows he completed 1 year, 3 months, and 23 days of active service with 3 months and 16 days of prior active service. It also shows he was awarded or authorized: • National Defense Service Medal (2nd award) • Iraq Campaign Medal • Global War on Terrorism Service Medal • Armed Forces Reserve Medal with M Device • Army Service Ribbon • Overseas Service Ribbon (2nd award) • Combat Infantryman Badge • Army Lapel Button 8. The DD Form 214 does not list his periods of deployment to Iraq; however, it does list his Combat Infantryman Badge, for which the applicant received orders, and the Iraq Campaign Medal. 9. Permanent Order 055-077, dated 24 February 2006, awarded the applicant the Army Good Conduct Medal for the period 10 October 2004 to 2 February 2006. 10. A Post Deployment Survey, dated 13 October 2007, reported knee pain, recurrent back pain, that he was injured in June 2005 while deployed with a fracture of his sternum and a concussion, with a period of unconsciousness ir concussion from an IED 11. The applicant was honorably discharged from the ARNG on 16 January 2009. His awards include a listing for the Army Good Conduct Medal in addition to the awards shown on his DD Form 214. 12. Between 23 September 2011 and 21 April 2016 the applicant was seen by private medical personnel receiving the diagnoses including for cervical spinal cord injuries, head trauma, mild TBI, ringing in the ears, and frequent headaches. The applicant received an MRI that showed an abnormality in the left temporal stem white matter, the bilateral amygdala are smaller than expected, with left volume below normal for patient's age. There is also decreased size of the left pars orbitalis along the inferior frontal lobe and anterior medial temporal lobe, each of which measuring in the 4th percentile. 13. The Department of Veterans Affairs (VA) afforded the applicant evaluation of TBI, Headaches, and PTSD with award of a combined total disability evaluation that included diagnoses of PTSD and tinnitus on 9 January 2017. 14. The applicant was evaluated for TBI on 28 April 2021 with findings of abnormal signal intensity in the left temporal lobe. He was also evaluated for possible epileptiform discharges on 2 June 2021, the findings were negative. 16. A review of the applicant’s service record confirms an award was omitted from his DD Form 214. The award will be added to his DD Form 214 as an administrative correction and will not be considered by the Board. The Board will consider his request for award of the Purple Heart. 17. By regulation (AR 15-185), an applicant is not entitled to a hearing before the ABCMR. Hearings may be authorized by a panel of the ABCMR or by the Director of the ABCMR. BOARD DISCUSSION: 1. After reviewing the application, all supporting documents, and the evidence found within the military record, the Board found that a portion of relief was warranted. The Board carefully considered the applicant’s contentions, the military record, and regulatory guidance. Regulatory guidance regarding the award of the Purple Heart requires an applicant to provide or have as evidence of record 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 due consideration of the request, the Board found the evidence presented insufficient to determine compliance with the regulatory standard for the Purple Heart and thus recommended denying the request. 2. Prior to closing the case, the Board did note the analyst of record administrative notes below and recommended the correction is completed to more accurately depict the military service of the applicant. 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. 12/14/2023 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. ADMINISTRATIVE NOTE(S): A review of the applicant’s records shows he is authorized additional awards not listed on his DD Form 214 for the period ending 2 February 2006. As a result, amend his DD Form 214 to show award of the Army Good Conduct Medal – Permanent Order 055-077, 25 February 2006. 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 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 begins its consideration of each case with the presumption of administrative regularity, which is that what the Army did was correct. a. The ABCMR is not an investigative body and decides cases based on the evidence that is presented in the military records provided and the independent evidence submitted with the application. The applicant has the burden of proving an error or injustice by a preponderance of the evidence. b. The ABCMR may, in its discretion, hold a hearing or request additional evidence or opinions. Additionally, it states in paragraph 2-11 that applicants do not have a right to a hearing before the ABCMR. The Director or the ABCMR may grant a formal hearing whenever justice requires. 3. Army Regulation 600-8-22 (Military Awards) provides Army policy, criteria, and administrative instructions concerning individual military decorations. a. The Purple Heart is awarded to any member of an Armed Force of the United States who, while serving under competent authority in any capacity with one of the U.S. Armed Services after 5 April 1917, has been wounded or killed, or who has died or may hereafter die after, being wounded: • in any action against an enemy of the United States • in any action with an opposing armed force of a foreign country in which the Armed Forces of the U.S. are or have been engaged • while serving with friendly foreign forces engaged in an armed conflict against an opposing armed force in which the U.S. is not a belligerent party • as the result of an act of any such enemy of opposing Armed Forces • as the result of an act of any hostile foreign force b. Paragraph 2-8g. provides examples of enemy-related injuries which clearly justify award of the Purple Heart: • injury caused by enemy bullet, shrapnel, or other projectile created by enemy action • injury caused by enemy-placed trap or mine • injury caused by enemy-released chemical, biological, or nuclear agent • injury caused by vehicle or aircraft accident resulting from enemy fire • concussion injuries caused as a result of enemy-generated explosions • mild traumatic brain injury 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. c. Paragraph 2-8h provides examples of injuries or wounds which clearly do not justify award of the Purple Heart which includes: • battle fatigue • post-traumatic stress disorder • mild traumatic brain injury 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 d. Paragraph 2-8i states it is not intended that such a strict interpretation of the requirement for the wound or injury to be caused by direct result of hostile action be taken that it would preclude the award being made to deserving personnel. 4. 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. //NOTHING FOLLOWS//