DEPARTMENT OF THE NAVY 
BOARD FOR CORRECTION OF NAVAL RECORDS 
701 S. COURTHOUSE ROAD, SUITE 1001 
ARLINGTON, VA 22204-2490 

Docket No: 8704-19 
Ref: Signature Date 

Dear 

This letter is in reference to your reconsideration request date 19 September 2019.  You previously petitioned the Board for Correction of Naval Records (Board) and were advised that your application had been disapproved. Your case was reconsidered in accordance with Board procedures that conform to Lipsman v. Sec’y of the Army, 335 F. Supp. 2d 48 (D.D.C. 2004).  After careful and conscientious consideration of the entire record, the Board found the evidence submitted was insufficient to establish the existence of probable material error or injustice.  Consequently, your application has been denied. 

Although your application was not filed in a timely manner, the Board found it in the interest of justice to waive the statute of limitations and consider your application on its merits.  A three-member panel of the Board, sitting in executive session, considered your application on 3 February 2020.  The names and votes of the members of the panel will be furnished upon request.  Your allegations of error and injustice were reviewed in accordance with administrative regulations and procedures applicable to the proceedings of this Board.  Documentary material considered by the Board consisted of your application, together with all material submitted in support thereof, relevant portions of your naval record, and applicable statutes, regulations, and policies, and the relevant Advisory Opinion (AO).
 
You enlisted in the Marine Corps, and served honorably on active duty from 30 May 1991 through 20 December 2006. You subsequently joined the Marine Corps Reserve, and served honorably.  During your active duty enlistment, you were assigned to Delta Company in support of 7th Marine Regiment during operations in southeast Baghdad.  You state that Delta Company had significant engagement with Iraqi forces. 

You request a change to your record to reflect your entitlement to a Purple Heart.  You state that your command failed to observe injuries that have since been diagnosed as a Traumatic Brain Injury (TBI).  You assert that you are entitled to a Purple Heart based on the TBI you suffered while serving in Iraq.
 
As part of the Board’s review, President, Navy Department Board of Decorations and Medals reviewed your request and the available records, and provided the Board with an AO on 16 October 2019.  The AO notes that the Purple Heart may be awarded for cases involving military TBIs if a Service member suffers a loss of consciousness of any duration as a result of a diagnosed military TBI/concussion, or when the persistent signs, symptoms, or findings of functional impairment from a diagnosed military TBI/concussion result in a medical officer disposition of “not fit for full duty” for a period greater than 48 hours.  Further, the medical officer’s disposition must be made within seven (7) days of the concussive event as evidenced by official entries into the Service member’s medical record.  The AO notes that you submitted your request for the Purple Heart via your chain of command to U.S. Marine Corps Forces Central Command, which denied the request because no military TBI injury was diagnosed within the first 7 days of an engagement on 5 April 2003. In 2017, you submitted your request to Headquarters, U.S. Marine Corps Military Awards Branch (MMMA) for adjudication.  MMMA sought further information from you, which MMMA indicated that you did not provide.  MMMA closed your case and effectively denied your request.  The AO concluded that the previous denials were not arbitrary or capricious, and recommended that your request be denied.  The AO was provided to you, and you were given 30 days in which to submit a response.  You submitted a response on 26 October 2019, asking that the Board members consider in part the statements of your former Battalion Commander and your Executive Officer. 

The Board, in its review of your entire record and application, carefully weighed all potentially mitigating factors, including the information that you provided in support of your application.  The Board took particular note of your personal statement, the letter from Commander, U.S. Marine Corps Forces, , the letter from your former Executive Officer for the , and the letter from your Battalion Commander during combat operations in 2003.  The Board also considered the AO and your rebuttal to its recommendation that your request be denied.  The Board concurred with the AO and determined that you do not meet the qualifying criteria for entitlement to a Purple Heart.
 
It is regretted that the circumstances of your reconsideration petition are such that favorable action cannot be taken.  You are entitled to have the Board reconsider its decision upon the submission of new matters, which will require you to complete and submit a new DD Form 149.  New matters are those not previously presented to or considered by the Board.  In the absence of new matters for reconsideration, the decision of the Board is final, and your only recourse would be to seek relief, at no cost to the Board, from a court of appropriate jurisdiction. 

It is important to keep in mind that a presumption of regularity attaches to all official records.  Consequently, when applying for a correction of an official naval record, the burden is on the applicant to demonstrate the existence of probable material error or injustice. 

Sincerely,