IN THE CASE OF: BOARD DATE: 6 December 2023 DOCKET NUMBER: AR20230002132 APPLICANT REQUESTS: entitlement to the Purple Heart and a personal appearance hearing before the Board via video or phone. APPLICANT'S SUPPORTING DOCUMENT(S) CONSIDERED BY THE BOARD: * DD Form 149 (Application for Correction of Military Record) * 3 DA Forms 2823 (Sworn Statement) * Memorandum, U.S. Army Human Resources Command (AHRC), 4 November 2022 * DA Form 4187 (Personnel Action), 8 July 2022 * Memorandum for Record (MFR), 1st Battalion, 75th Ranger Regiment, 27 September 2016 * Physician Doctors Admission Note, Craig Joint Theatre Hospital, 26 July 2016 * PAN CT Scan, Craig Joint Theatre Hospital, 25 July 2016 * Pertinent Labs, Craig Joint Theatre Hospital, 25 July 2016 * Discharge Summary, Craig Joint Theatre Hospital, 26 July 2016 * Orders: BG-126-0007, U.S. Army Installation Management Command, 5 May 2016 * Enlisted Record Brief, 27 June 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, in effect: a. During a period of darkness on 24/25 July 2016, he was assigned as the Explosive Ordnance Disposal Team Leader for 1st Platoon, Company B, 3rd Ranger Battalion under a named Task Force for combat operations in Nangahar, Afghanistan. The purpose of their operation was a multi-day operation to clear several hundred ISIS fighters out of a valley in Nangahar, Afghanistan. The valley was very restrictive due to the terrain and the many hardened structures in the valley floor. Bravo Company was split into two elements consisting of two Ranger platoons on the ground, with a third platoon staged as a quick reaction force. b. At approximately 1030 the morning of July 25th, the element received very accurate small arms fire. He was located at the head of the element clearing the strike forces movement of explosive hazards. At the time of the engagement, he and one of the squad leaders realized their right flank was exposed. With the approval of the ground force commander, Staff Sergeant (SSG) (deceased), they took a small element consisting of himself, a fire team leader and an MK48 gunner to the high ground next to a multi-story hardened structure which prevented the enemy from maneuvering on the high ground to their right flank and enabled them to observe rounds for the ground force commander and Joint Terminal Attack Controller to conduct call for fire on the enemy positions. c. During the engagement, he remembers dropping behind a wall to conduct a magazine change. The next thing he remembers is SSG shaking him in a cloud of dust. His helmet had been knocked off and his left arm was burning. He thought they had been hit by an Improvised Explosive Device, only to find out shortly after, they were engaged by friendly 30mm rounds from AH-64 helicopters that mistook their position for the enemy position. The engagement lasted for over 6 hours. He received shrapnel wounds to his left arm and was knocked unconscious by either the wall being blown in on him or the blast. He was medically evacuated (MEDEVAC) on the 3rd MEDEVAC bird to Jalalabad Air Base in Nangahar and then to the hospital on Bagram Air Base where he was diagnosed and treated for his injuries. d. The applicant suffered a Traumatic Brain lnjury (TBI) that resulted in an extended loss of consciousness and physical wounds from gunfire while directly engaged in combat with an armed enemy. The physical injuries were not addressed in the denial memorandum. 3. The applicant is currently serving in the Regular Army. Evidence shows he served in Afghanistan from: * 12 June 2016 to 21 October 2016 * 1 May 2017 to 22 October 2017 * 17 August 2018 to 15 January 2019 * 3 October 2019 to 26 January 2020 * 15 August 2020 to 25 November 2020 4. The applicant provides a/an: a. DA Form 4187, 8 July 2022, which recommended him for entitlement to the Purple Heart for wounds/injuries received in action caused directly by the enemy on 25 July 2016, in Afghanistan. b. MFR from the Battalion Surgeon, 1st Battalion, 75th Ranger Regiment, 27 September 2016, in which he states the applicant was wounded on 25 July 2016 by a blast injury. The applicant was admitted to the hospital under a pseudonym and the accompanying records for trauma pertain to the applicant. c. PAN CT Scan and labs, 25 July 2016, and a physician doctors admission note, 26 July 2016. The admission diagnosis is listed as dehydration (Heat Exhaustion) and TBI. [Applicant] is an active-duty Army member who presents with dehydration s/p prolonged outside wire operation and blast injury. [Applicant] was 3 feet away from blast against a stone wall where he describes a loud crash, flash of light and awakening on the ground seconds later. Currently with tinnitus and mild headache. No other neuro symptoms. Denies dizziness, positive headache, unknown loss of consciousness (LOC). d. Discharge Summary, 26 July 2016, shows an admission diagnosis of heat injury, elevated creatine kinase, elevated creatine, mild (m) mTBI. Discharge diagnosis of acute renal injury, rhabdomyolysis, dehydration, concussion due to TBI with brief (<30 minute) loss of consciousness. Battle buddy says [the applicant] briefly lost consciousness several minutes after being exposed to a blast injury. (1) [Applicant] was admitted for observation, supportive care, and pain control. In the summary of care, TBI – exposure to blast. Denies LOC and neurological exam nonfocal. Head CT negative for acute pathology. Admission Military Acute Concussion Evaluation (MACE) 24/30 improved follow up to 28/30. [Applicant has been ambulating and watching television without symptoms. (2) Left forearm soft tissue pain – 1mm pinpoint macule left forearm with mild surrounding swelling, mild erythema, and pale with palpitation. Possible speck of foreign body with inflammation vs bruising. Evaluated with surgeon. Soft compartments. No further treatment/intervention recommended unless increase in redness/pain/warmth. Discharged with light duty. e. Sworn statement from Sergeant First Class (SFC) COS, 25 July 2016, who states, in effect, during the engagement, [the applicant] received shrapnel wounds to his arm and was knocked unconscious by a blast receiving a TBI. He was MEDEVAC to the hospital on Bagram Air Base where he was treated for his injuries. He also required continued medical attention upon redeployment. f. Sworn statement from Captain PLG, 9 February 2022, whose statement, in effect, mirrors the statement provided by SFC COS. 5. On 4 November 2022, the Chief, Awards and Decorations Branch, AHRC, disapproved his request for entitlement to the Purple Heart. The AHRC official stated, "after a thorough review of the information provided, the forwarded recommendation for the Purple Heart does not meet the statutory guidance outlined in Army Regulation 600-8-22 (Military Awards), paragraph 2-8g: the Purple Heart cannot be awarded for concussions (or mTBI) that does 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. As the forwarded packet does not indicate [the applicant] met this criteria, we cannot justify an award of the Purple Heart for this event." 6. 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. Additionally, when based on a TBI, the regulation stipulates the TBI, or concussion must have been severe enough to cause a 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. 7. Army Regulation 15-185 (ABCMR) states 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 relief was warranted. The Board carefully considered the applicant's record of service, documents submitted in support of the petition and executed a comprehensive and standard review based on law, policy and regulation. Upon review of the applicant’s petition and available military records, the Board determined there was sufficient evidence to grant award of the Purple Heart. Evidence in the record show the applicant was wounded in action on 25 July 2016, while serving in Afghanistan. Evidence shows the applicant was wounded and was treated by medical professional immediately following the blast. The Board determined, based on regulatory guidance the applicant met the criteria for award of the Purple Heart. The Board found sufficient evidence to grant relief. 2. The applicant’s request for a personal appearance hearing was carefully considered. In this case, 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. BOARD VOTE: Mbr 1 Mbr 2 Mbr 3 :X :X :X GRANT FULL RELIEF : : : GRANT PARTIAL RELIEF : : : GRANT FORMAL HEARING : : : DENY APPLICATION BOARD DETERMINATION/RECOMMENDATION: The Board determined the evidence presented is sufficient to warrant a recommendation for relief. As a result, the Board recommends that all Department of the Army records of the individual concerned be corrected by adding to his Army Military Human Resources Record (AMHRR) award of the Purple Heart. 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 prescribes Army policy, criteria, and administrative instructions concerning individual and unit military awards. a. 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. 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 Purple Heart 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 Purple Heart, 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 Purple Heart include concussion injuries caused as a result of enemy-generated explosions resulting in a 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 clearly do not justify award of the Purple Heart include post-traumatic stress disorder (PTSD), hearing loss and tinnitus, mTBI or concussions that do not either 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 Purple Heart 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. 3. Army Directive 2011-07 (Awarding the Purple Heart), dated 18 March 2011, provides clarifying guidance to ensure the uniform application of advancements in medical knowledge and treatment protocols when considering recommendations for award of the Purple Heart for concussions (including mTBI and concussive injuries that do not result in a LOC). The directive also revised Army Regulation 600-8-22 to reflect the clarifying guidance. a. Approval of the Purple Heart requires the following factors among others outlined in Department of Defense Manual 1348.33 (Manual of Military Decorations and Awards), Volume 3, paragraph 5c: wound, injury or death must have been the result of an enemy or hostile act, international terrorist attack, or friendly fire; and the wound for which the award is made must have required treatment, not merely examination, by a medical officer. Additionally, treatment of the wound shall be documented in the Soldier's medical record. b. Award of the Purple Heart may be made for wounds treated by a medical professional other than a medical officer provided a medical officer includes a statement in the Soldier'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. A medical officer is defined as a physician with officer rank. The following are medical officers: an officer of the Medical Corps of the Army, an officer of the Medical Corps of the Navy, or an officer in the Air Force designated as a medical officer in accordance with Title 10, United States Code, Section 101. d. 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 (for example, independent duty corpsmen and Special Forces medics). Basic corpsmen and medics (such as combat medics) are not physician extenders. e. When recommending and considering award of the Purple Heart for concussion injuries, the chain of command will ensure that the criteria are met and that both diagnostic and treatment factors are present and documented in the Soldier's medical record by a medical officer. f. 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 Purple Heart: (1) Diagnosis of concussion or mTBI; (2) Any period of loss or a decreased level of consciousness; (3) Any loss of memory of events immediately before or after the injury; (4) 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, etc.) that may or may not be transient; and (5) Intracranial lesion (positive computerized axial tomography) or magnetic resonance imaging scan. g. The following nonexclusive list provides examples of medical treatment for concussion that meet the standard of treatment necessary for award of the Purple Heart: (1) Limitation of duty following the incident (limited duty, quarters, etc.); (2) Pain medication, such as acetaminophen, aspirin, ibuprofen, etc., to treat the injury; (3) Referral to a neurologist or neuropsychologist to treat the injury; and (4) Rehabilitation (such as occupational therapy, physical therapy, etc.) to treat the injury. h. Combat theater and unit command policies mandating rest periods or downtime following incidents do not constitute qualifying treatment for concussion injuries. To qualify as medical treatment, a medical officer or medical professional must have directed the rest period for the individual after diagnosis of an injury. 3. The MACE is a standardized mental status examination that is used to evaluate mTBI, or concussion, in theater. This screening tool was developed to evaluate a person with a suspected concussion and is used to identify symptoms of a mTBI. Future MACE scores can be used to determine if the patient's cognitive function has improved or worsened over time. To be most effective, all service members experiencing concussion, or mTBI, should have the MACE administered within the first 24 hours of the event in order to make certain that proper care is administered in a timely fashion. The MACE, in combination with a medical exam, can be used to help determine if it is safe for a service member to return to duty. However, this standardized testing/evaluation was not utilized by the military until 2006. 4. 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 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. 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// ABCMR Record of Proceedings (cont) AR20230002132 1 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1