IN THE CASE OF: BOARD DATE: 17 January 2024 DOCKET NUMBER: AR20230008096 APPLICANT REQUESTS: with counsel, reconsideration of his previous request for entitlement to the Purple Heart. APPLICANT'S SUPPORTING DOCUMENT(S) CONSIDERED BY THE BOARD: * request for reconsideration, undated * letter from applicant, 25 March 2023 * Memorandum for Record, Subject, Lack of Historical Records for 1-319th AFAR During Operation Iraqi Freedom 06-08 Deployment, 11 July 2019 FACTS: 1. Incorporated herein by reference are military records which were summarized in the previous consideration of the applicant's case by the Army Board for Correction of Military Records (ABCMR) in Docket Number AR20210007894 on 7 February 2022. 2. The applicant provided a letter stating counsel was authorized to represent him in this matter. 3. Counsel provided a memorandum requesting reconsideration, wherein he states: a. The basis for the Board's denial of his previous application to the Board was the 3-year statute of limitations. Given the evidence presented to the Board, it was reasonable to toll the statute of limitations from July 2011, the date of Military Personnel Message Number 11-125, which clarified the criteria for award of the Purple Heart for TBI. b. The applicant had no contact with the military after his separation on 7 July 2008. As such, he was not aware of the change in policy which authorized him the Purple Heart until he was informed of the change by his former command sergeant major when he drove the applicant to a medical appointment for his TBI on 2 October 2020. The applicant requested the Purple Heart on 29 December 2020. When the request was denied by AHRC, he applied to this Board on 31 March 2021. As such, he did, in fact, file his application within three years of the date of his discovery of the error or injustice. c. While the Board did address the merits of the case in a roundabout way, the following is provided to help understand his situation. While medical records cannot be located to show the applicant's treatment, he was not with his unit at the time of his wounding, and the retention and disposition of medical records at an aid station after a major attack is poor at best, especially when the wound wasn't severe enough to require medical evacuation. d. To establish his wounding as the result of enemy action, him being knocked unconscious, medical treatment for TBI, and being given bed rest for being disoriented and confused along with memory loss, headaches, and vertigo, he submitted statements from a fellow Soldier as well as senior noncommissioned officers (NCOs). These, along with his Post-Deployment Health Assessment dated 27 December 2007, clearly establish him being knocked unconscious as the result of hostile action, that he sought and received medical treatment for TBI, and that he was given bed rest (the applicant states that, to the best of his recollection, he was given one week bed rest and light duty for about two weeks). e. The Board's denial was a split vote. While one Board member saw that the applicant met the criteria for award of the Purple Heart which would warrant waiving the statute of limitations, the other two Board members did not judge the existing evidence sufficient to warrant overriding the statute of limitations. As previously stated, such a judgment is understandable given the evidence provided. However, as now explained, the applicant did, in fact, file his application in a timely manner from the date he became aware of the change in policy which allowed for award of the Purple Heart for TBI. f. But does he meet the criteria for award of the Purple Heart for TBI? The regulatory guidance specifies that the Purple Heart is authorized for mild (m)TBI or concussive severe enough to cause either loss of consciousness (LOC) or restriction from full duty due to persistent signs, symptoms, or clinical finding, or impaired brain functions for a period of greater than 48 hours from the time of the concussive incident. Did the applicant lose consciousness? Yes, as confirmed by witness statements. Did he have 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? Yes, he was given one week of bed rest and light duty for two weeks. It should be noted that his TBI is severe enough to warrant a 100% permanent and total disability rating by the VA. This shows the severity of his TBI. 4. Having 5 months and 12 days of total prior active service, the applicant entered active duty in the Regular Army on 15 January 2004. He served in military occupational specialty 92A (Automated Logistical Specialist). Evidence shows he served in Iraq from 8 August 2004 to 26 July 2005 and from 13 October 2006 to 30 December 2007. 5. Permanent Orders 025-372, Headquarters, 7th Infantry Division, 25 January 2006, awarded him the Combat Action Badge for actively engaging or being engaged by the enemy during the period 8 August 2004 to 23 July 2005. 6. Permanent Orders Number 259-303, Headquarters, 2d Infantry Brigade Combat Team, 19 September 2007, awarded him the Army Commendation Medal, 1st Oak Leaf Cluster for outstanding support while serving in Iraq in support of Operation Iraqi Freedom 06-08 from 26 October 2006 to 8 January 2008. 7. A Stars and Stripes article, "Two Coalition Troops Killed, 40 People Wounded in Camp Victory Attack," 12 October 2007, reported two coalition service members were killed and at least 40 other people were wounded in indirect-fire attacks on Camp Victory in Baghdad, Iraq. 8. A Standard Form 600 (Chronological Record of Medical Care), 27 December 2007, in which the applicant reviewed a questionnaire indicating a positive event with alteration of consciousness and symptoms afterward. Most serious injury was exposure to blast from rocket in July 2007. Reports he was seen in theater but records not available. Now having short and long-term memory problems which began after blast exposure in first deployment but became worse with following exposures during his deployment. Reported sleep problems declined prescription at the time. Did not have sworn statement and stated he did not want further follow-up on TBI at the time. Released without limitations, education given on TBI, return to TBI clinic for further evaluation if memory problems persist. 9. His DD Form 2796 (Post-Deployment Health Assessment), 27 December 2007, shows he reported being exposed to or near a blast which caused a blow or jolt to his head and developing or having symptoms of weakness, headaches, dizziness, fainting, lightheadedness, feeling tired after sleeping, and difficulty remembering. Notes referral for TBI and Behavioral Health. 10. He was honorably released from active duty and transferred to the U.S. Army Reserve Control Group (Reinforcement) on 7 June 2008. His DD Form 214 shows in: * item 12c (Net Active Service This Period) – 4 years, 2 months, and 23 days * item 13 (Decorations, Medals, Badges, Citations, and Campaign Ribbons Awarded or Authorized) – no award of the Purple Heart * item 18 (Remarks) – Service in Iraq from 13 October 2006 to 30 December 2007 11. A Memorandum for Record, dated 11 July 2019, Subject: Lack of Historical Records for 1-319th AFAR During Operation Iraqi Freedom 06-08 Deployment, issued by Lieutenant Colonel (LTC), the Fire Support Senior Trainer, Fire Support Division, Operations Group, Joint Readiness Training Center, provides context for the lack of historical records maintained during the applicant's deployment to Iraq from 2006-2007. He states, in effect, that all their records covering tactical plans, contacts with insurgent forces, and operational summaries were classified Secret (with various restrictions) and stored on the Secret Internet Protocol Router Network (SIPRNet). Much of the information stored on the SIPRNet could be used to validate awards and badges; however, upon redeployment, the hard drive containing the information was corrupted during transit and they were unable to retrieve any data from it. To his knowledge, the battalion did not hand-carry any of the reports. 12. The VA letter, 22 May 2020, provides a summary of the benefits he currently receives from the VA. His combined service-connected evaluation is 100 percent, and he is considered totally and permanently disabled due solely to his service-connected disabilities. 13. In a statement, 6 October 2020, Sergeant Major (Retired) states, in effect, on 10 October 2007, he witnessed the applicant be knocked off his feet and rendered temporarily unconscious due to the blast wave from an enemy rocket explosion. 14. In a statement, 26 October 2020, First Sergeant (Retired) states, in effect, on 10 October 2007, he was physically present when the applicant was exposed to a violent blast wave. The blast was strong enough that it knocked the applicant unconscious for an unknown period. He witnessed how the applicant struggled to get up, appeared confused, dizzy and had balance issues. 15. In a memorandum for HRC (Purple Heart Medal Verification for (Applicant)), 2 December 2020, Specialist, states in effect, on 10 October 2007, the applicant was injured when enemy rockets exploded near him and the Camp Victory Dining Compound. As he neared the building entrance, the attack occurred. He remembers seeing the applicant being picked up by other service members as he was knocked unconscious from the rockets impact. He also witnessed the applicant's recovery as he received some days of bedrest and headache medicine provided by a medic. 16. In a statement, 11 December 2020, Sergeant First Class (Retired) states in effect, on 10 October 2007, he was serving as the combat medic responsible for providing emergency medical treatment, limited primary care, health protection and evacuation from a point of injury or illness during the deployment. He was not present when the applicant was injured but is knowledgeable of the attack. The applicant reached out to him to tell him about his injury and to request treatment guidance as he was not feeling well immediately following his injury. The applicant advised him that he had seen the medic on Camp Victory and since he had treated him in the past, he felt comfortable reaching out to him. The applicant asked his medical opinion of his injuries which included headaches, confusion, memory loss, nausea, dizziness and ringing in the ears. He advised him that he needed to take medication for headache pain, anti-nausea medication and to get some rest. This was consistent with what the previous medic advised. At the time, mTBI was poorly understood, and it was common to just give some ibuprofen or rest and return the Soldier back to duty. 17. In a memorandum (Purple Heart Medal Verification for (Applicant)), 11 December 2020, Sergeant states in effect, on 10 October 2007, he recalls seeing some Soldiers helping the applicant up as the crowd ran everywhere. He saw the applicant at the clinic and later stayed with the applicant for a few days in his living quarters while he rested to recover from the concussion injury. He recalls seeing the applicant taking medicine given to him by a medic to help with headaches. He believes the applicant was affected by the blast as he appeared sick and would complain to his close friends about having headaches, vertigo, eardrum pain and memory loss. 18. A Department of Veterans Affairs (VA) Health Summary (Continuity of Care Document), undated, lists his TBI with brief loss of consciousness, a history of his present illness, and lists his service-connected disabilities. 19. A VA letter, 22 May 2020, shows his combined service-connected evaluation is 100 percent and he is considered totally and permanently disabled due solely to his service- connected disabilities. 20. The HRC Awards and Decorations Branch letter, 22 February 2021, informed the applicant that they remain unable to facilitate his request. As stated in their previous correspondence, 29 December 2020, they have determined the incident in question does not meet the strict regulatory criteria for award of the Purple Heart for concussions and mild TBI after consultation with the HRC Office of the Surgeon General. 21. The Wounded Warrior Project letter, 4 June 2021, confirmed that the applicant is registered with the Wounded Warrior Project as an alumni member on 11 May 2021. 22. In his previous consideration, the applicant stated: a. He was wounded by the enemy in 2007 and was not awarded the Purple Heart after the 2011 eligibility changes occurred. He suffered a concussion injury that was caused by enemy-generated explosions. In 2011, the military issued directives that removed the previously existing requirement that a LOC was required to be eligible; therefore, he earned the Purple Heart as he met the requirement. He has gathered the proper documentation, to include senior NCOs as witnesses to his concussion injury. b. His injury was treated by a medic in theater. Active-duty senior enlisted personnel witnessed his injury. His injury was diagnosed as a concussion/mTBI. His injury is currently being treated by the VA. c. During his deployment, a mTBI was poorly known by military medical personnel and medical recordkeeping was poor as well. A U.S. Army physician wrote in his medical file that he was treated and seen by a medic in Iraq, but they could not locate his medical records. It is not his fault that the Army could not locate his medical records. He has senior enlisted NCOs as witnesses who are testifying under oath as to their knowledge and presence of his injury. d. On 10 October 2007, as he was going toward the dining facility on Camp Victory, Iraq, he was physically impacted by indirect rocket fire blasts that knocked him out immediately. The rockets exploded on impact within seconds apart from each other. He felt the impact of a blast wave toward him that caused him to suffer a concussion/mTBI. After regaining consciousness, fellow Soldiers assisted him in getting up and taking cover. He felt dizziness with loss of balance, ringing ears, disorientation, and a big headache. He went to the closest aid station to treat his symptoms. His injury led to developing symptoms that were identified as a TBI. He was treated at a small aid station with limited resources. The medic gave him pain relief pills and was told he needed a couple days of rest. e. At the time, he hesitated to seek award of the Purple Heart because he did not receive any shrapnel in his body, and he did not have knowledge of the signs or symptoms of a TBI. He did not want to show any weakness because he did not want to be sent back to the United States, knowing Soldiers would return to the United States only when they were severely injured or died. f. Later during his Post-Deployment Health Assessment Screening, he noticed he was suffering from memory loss, headaches, and vertigo. He decided to report that he was experiencing worsening symptoms and he began to receive proper treatment for post-concussion, including therapy with medication and a TBI evaluation. g. He was diagnosed on active duty as having a TBI with symptoms. After his release from active duty, he continued with treatment from the VA and was granted permanent and total service connection for TBI and residual headaches status post-TBI due to the incident that happened in Iraq that caused him lasting symptoms, such as hearing loss, vertigo, migraines, tinnitus, and memory loss, along with other issues. h. He is requesting award of the Purple Heart now because he understands the criteria to meet the requirements for the Purple Heart and because he recently learned the rules for awarding the Purple Heart were changed to reflect TBI in 2011. 23. The ABCMR previously considered the applicant's request for award of the Purple Heart, in ABCMR Docket Number AR20210007894, on 7 February 2022. The Board states, after reviewing the application, all supporting documents, and the evidence found within the military record, the Board determined that relief was not warranted. The Board carefully considered applicant’s contentions, military record, and regulatory guidance for award of the Purple Heart. The Board considered the applicant’s statement, record of service and provided documentation. The Board considered the multiple witness statements and reference to the applicant having been unconscious for a period of time. Based on the preponderance of evidence available for review, one Board member found the evidence presented sufficient to warrant relief; whereas two Board members determined the evidence presented insufficient to warrant a recommendation for relief. 24. Army Regulation 600-8-22 states 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. BOARD DISCUSSION: 1. 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 through counsel 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. One potential outcome was to grant relief based on the evidence provided by the applicant’s counsel regarding his concussion and his restricted duty for more than 48 hours. However, upon review through counsel of the applicant’s petition, available military records and Human Resources Command (HRC) - Awards and Decorations Branch, the Board determined the additional evidence provided by the applicant’s counsel was insufficient and did not meet the criteria for award of the Purple Heart. The Board noted the mTBI diagnosis by VA in his records, however they found per regulatory guidance for award of the Purple Heart, evidence provided must indicate he suffered, as a result of hostile action, a concussion or TBI so disabling as 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 incident. 2. The Board noted his post service medical documentation is insufficient evidence to grant relief. The Board determined the evidence provided is insufficient to warrant reversal of the previous board decision for award of the Purple Heart. Therefore, the Board denied relief. BOARD VOTE: Mbr 1 Mbr 2 Mbr 3 : :X : GRANT FULL RELIEF : : : GRANT PARTIAL RELIEF : : : GRANT FORMAL HEARING :X : :X DENY APPLICATION BOARD DETERMINATION/RECOMMENDATION: The Board found 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 to amend the decision of the ABCMR set forth in Docket Number AR20210007894 on 7 February 2022. 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 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 disorders, 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. 2. 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. //NOTHING FOLLOWS// ABCMR Record of Proceedings (cont) AR20230008096 1 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1