IN THE CASE OF: BOARD DATE: 26 October 2023 DOCKET NUMBER: AR20230006657 APPLICANT REQUESTS: * award of the Purple Heart (PH) * a video/telephonic appearance before the Board. APPLICANT'S SUPPORTING DOCUMENT(S) CONSIDERED BY THE BOARD: * DD Form 149 (Application for Correction of Military Record), 15 March 2023 * Headquarters (HQ), U.S. Army Garrison, Fort Bragg, Orders BG-344-0129, 10 December 2010 * DA Form 67-9 (Officer Evaluation Report), 6 February 2011 * Officer Record Brief * DD Form 214 (Certificate of Release or Discharge from Active Duty), 30 March 2017 * 52 pages of medical records, SF 600, 2015 * 21 pages of Health Progress Notes, 2020 * Statement of Support, Chief Warrant Officer 4 (CW4) , 25 January 2021 * Statement of Support, CW4 , 25 January 2021 * Statement of Support, CW3 , 2 February 2021 * U.S. Army Human Resources Command (AHRC), Awards and Decorations Branch (ADB), letter, 11 February 2021 (Request for More Information) * AHRC, ADB, letter, 2 April 2021 (Unable to Authorize PH) * Statement of Support, , 2 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: a. He was deployed to Iraq in 2011 in support of Operation New Dawn when he sustained combat related head injuries. The appropriate medical professional was unavailable to adequately evaluate and diagnose his injuries. This error led to a two- time disapproval of his PH recommendation. Being evaluated by a neurologist would have been beneficial for this head injury. b. The attached medical documents are added to his official file for favorable action on his request for the PH. c. He believes the guidelines for the PH provide the PH may be awarded for wounds including mild traumatic brain injuries (TBI). He has included a memorandum for the record from Dr. , his primary care physician while he was in the Warrior Transition Battalion. d. He included with his evidence Department of Veterans Affairs medical records because of continued post-concussive syndrome years later. 3. The applicant provides: a. His application and self-authored statement outlined above. b. HQ, U.S. Army Garrison, Fort Bragg Orders BG-344-0129, deploying him to Iraq in support of Operation New Dawn (OND). c. His DA Form 67-9 (Officer Evaluation Report), 6 February 2011, showing he served as the Engineer Branch Chief for U.S. Forces-Iraq (USF-I) from 1 January 2011 to 31 December 2011. d. His ORB, showing he deployed to Iraq for 10 months in 2011, and he was assigned to U.S. Forces, Iraq. e. Retirement Orders issued by HQ, 101st Airborne Division, Fort Campbell, 13 January 2017, with an effective date 31 March 2017. f. His DD Form 214, 30 March 2017, showing in part, he was retired on 30 March 2017, and served in Iraq from 5 January 2011 to 4 November 2011. g. Medical records completed at Fort Campbell, consisting of 52 pages of SFs 600. These records show diagnosis for mild post-concussion syndrome, post-traumatic stress disorder (PTSD), depression, chronic pain, sleep, and other conditions. h. Medical records prepared at the Department of Veterans Affairs, consisting of 21 pages of health progress notes from year 2020. These progress notes show, in part, he was treated for TBI, concussion, disturbance of social functioning, and ongoing symptoms of memory impairment, among other health issues. i. A written statement of support by CW4 , 25 January 2021, which reads, in part: (1) During the deployment to the Iraq Theater of Operations in 2011, there were several times Camp Victory was hit with mortar rounds consisting of 6-14 bombs at a time. (2) During later summer in a trailer behind a large communications building, his unit was hit with numerous mortars that caused the trailer to shake and rattle. The trailers were under an aluminum cover with a barricade on one side. The attack lasted 15 minutes. (3) After an accountability check and the all-clear signal was given, the applicant was present but appeared dazed and uneasy. (4) Another attack occurred about 2 weeks later. There were more mortars, and this is when the applicant was hit and again felt dazed. He seemed more irritable and forgetful as well. j. A written statement of support from CW4 , 25 January 2021, which reads, in part: (1) While serving in theater at Victory Base Camp, his unit experienced mortar attacks usually three to five times a week. A warning was given for them to take cover until the attacks were over. (2) There were several times mortars landed close to their workspaces. He witnessed the applicant on several occasions to be dazed, lost or detached. They experienced a similar attack several weeks later and the applicant seemed extremely troubled, perplexed, or just out of it. He appeared irritable and muddled during and after these attacks. k. A personal account statement from the applicant, dated 2 February 2021, provides details of the events which essentially mirrors statements given by two other Soldiers in his unit at Camp Victory. He notes there were numerous times Camp Victory was hit with mortar attacks. He was working in a trailer behind a large communication building when three or four mortars struck. His head felt foggy, confused and dazed for at least 20 minutes. Towards the end of his deployment, he received a mission in Kirkuk. Mortars hit while he was walking to the chow hall and forced him to run for cover. He felt dazed, confused, and paranoid. That night more mortars penetrated the compound. He felt confused and paranoid. Years later he is dealing with the symptoms which disrupted his ability to work. He was medically discharged. l. A letter from AHRC to the applicant, 11 February 2021, requesting more medical information in response to his application for the PH. It reads, in part, “We would like to render favorable action; however, we are unable to facilitate your request at this time. In order to determine your eligibility for the Purple Heart, this 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 600-8-22 (Military Awards), Paragraph 2-8.” m. A letter from AHRC to the applicant, 12 April 2021, responding to his request for the PH for injuries received while deployed to Iraq. It reads, in part: (1) While we would like to take favorable action, we remain unable to authorize the requested award for issuance. We acknowledge receipt of the Standard Form 600 (Chronological Record of Medical Care), January 23, 2015, which indicates a diagnosis of mild post-concussion syndrome; however, as stated in our previous correspondence ted February 11, 2021, we cannot utilize post deployment medical documentation or Department of Veterans Affairs Benefits Rating Decision documents as the sole justification for award of the Purple Heart. Without military medical documentation from or close to the incident date reflecting a qualifying injury in accordance with Army regulation, we cannot approve an award of the Purple Heart. (2) Your next course of action is to appeal this decision to the ABCMR, which is the highest adjudicating appellate authority and has final authority over matters of this nature. n. A letter of support from his primary care manager, Dr. , Soldier Recovery Unit, Fort Campbell, which reads, in part. The applicant experienced three to five mortar attacks for 10 months. He was subsequently diagnosed with post concussive syndrome on 23 January 2015, via neuropsychological evaluation fort the TBI/Intrepid Center at Fort Campbell. In my professional opinion, at the time these events occurred, if proper medical professional were available, it may have been beneficial for his head injury. 4. A review of the applicant's service records shows: a. On 29 March 1995, he enlisted in the Regular Army for 3 years. b. On 19 December 2006, he was appointed as a warrant officer in the Army Reserve, following a period of enlisted active and inactive service. c. NATO Orders BG-344-0129, 42-190-A-015, issued by HQ, U.S. Army Garrison, Fort Bragg, issued travel orders to Iraq with a date of departure 4 January 2011. d. A physical disability information sheet shows he was processed for disability retirement with a 90 % disability retirement. The initial results of the medical evaluation board (MEB) and/or physical evaluation board (PEB) are not included in the service record. e. A medical counseling sheet shows he requested a separation date of 30 March 2017. f. Separation orders 013-0617, 13 January 2017, show he was placed on the retired list on 31 March 2017 by reason of physical disability with a 90% disability rating. g. On 30 March 2017, he was retired. His DD Form 214 shows he completed 10 years, 3 months, and 12 days of net active service; 10 years, 6 months, and 18 days of total prior active service; and 1 year, 2 months, and 2 days of total prior inactive service. He was awarded, in part, the Combat Action Badge. h. A DA Form 199 (Informal PEB Proceedings) shows on 18 May 2019 a PEB convened and found the applicant physically unfit. The PEB recommended a rating of 90% and that the applicant’s disposition be separation with permanent disability retirement. Among his disabling conditions were PTSD with a 70% rating (VASRD Code 9411) and migraine headaches with a 30% rating (VASRD Code 8100); however, the condition was determined to be permanent and stable. TBI was not identified as one of the medical conditions determined to be unfitting. (1) Section V (Administrative Determinations) noted: * the disability disposition is based on disease or injury incurred in the line of duty in combat with an enemy of the United States and as a direct result of armed conflict or caused by an instrumentality of war and incurred in the line of duty during a period of war (5 USC 8332, 3502, and 6303) * the disability did result from a combat-related injury under the provisions of 26 USC 104 or 10 USC 10216 (2) Section VI (Instruction and Advisory Statements) further noted: * the ratings were combined in accordance with VASRD para 4.25 and 4.26 * while on the TDRL, his unstable conditions (to include treatment) did not cause additional unfitting conditions. 5. 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 relief is not warranted. The Board found the available evidence sufficient to consider this case fully and fairly without a personal appearance by the applicant. 2. The Board concurred with the finding of AHRC ADB that the evidence does not include military medical documentation from an incident date or close to an incident date reflecting an injury qualifying for the Purple Heart. While the Board carefully considered all of the documentation provided by the applicant, the Board found the documents created after the deployment are insufficient as a basis for confirming the Purple Heart were met. The Board determined the available evidence does not establish the applicant’s entitlement to the Purple Heart. BOARD VOTE: Mbr 1 Mbr 2 Mbr 3 : : : GRANT FULL RELIEF : : : GRANT PARTIAL RELIEF : : : GRANT FORMAL HEARING :X :X :X 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. 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 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. The Purple Heart was established by General George Washington at Newburgh, NY on 7 August 1782 during the Revolutionary War. It was reestablished by the President of the United States per War Department General Orders Number 3 in 1932. It was awarded in the name of the President of the United States to any member of the Armed Forces or any civilian national 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, died or sustained wounds as a result of hostile action. Effective 19 May 1998, award of the Purple Heart is limited to members of the Armed Forces of the United States. //NOTHING FOLLOWS// ABCMR Record of Proceedings (cont) AR20230006657 1 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1