IN THE CASE OF:	  

		BOARD DATE:	  21 August 2012

		DOCKET NUMBER:  AR20120002644 


THE BOARD CONSIDERED THE FOLLOWING EVIDENCE:

1.  Application for correction of military records (with supporting documents provided, if any).

2.  Military Personnel Records and advisory opinions (if any).


THE APPLICANT'S REQUEST, STATEMENT, AND EVIDENCE:

1.  The applicant requests award of the Purple Heart.

2.  The applicant states he sustained wounds in combat as a direct result of enemy actions, on 28 September 2009, in Afghanistan.  

3.  The applicant provides:

* Self-authored statement
* Letter from the U.S. Army Human Resources Command (HRC), dated 
19 December 2011
* DA Form 2173 (Statement of Medical Examination and Duty Status), dated 29 September 2009
* Health Record, dated 30 September 2009
* Patient/Outpatient Record, dated 30 September 2009
* Standard Form (SF) 600 (Medical Record), dated 3 August 2009
* Three DA Forms 2823 (Sworn Statement)
* Orders Number 103-138, dated 13 April 2009
* Orders Number 041-721, dated 10 February 2011
* Military Personnel (MILPER) Message Number 11-125, dated 29 April 2011
* DD Form 214 (Certificate of Release or Discharge from Active Duty)




CONSIDERATION OF EVIDENCE:

1.  Having had prior enlisted service, the applicant was appointed as a Reserve commissioned officer in the New York Army National Guard (NYARNG) in the rank/grade of second lieutenant/O-2 on 30 June 2002.  He is currently serving as an infantry officer in the rank/grade of captain/O-3.

2.  His record shows he was deployed to Afghanistan from 22 April 2009 to 
27 February 2010.

3.  His DA Form 2-1 (Personnel Qualification Record) shows he was previously awarded the Purple Heart on 3 August 2009.

4.  He provided a DA Form 2173, dated 28 September 2009.  This form states/shows:

	a.  on 28 September 2009, he was in Afghanistan on a security patrol which departed from Forward Operating Base (FOB) Kutchbach in route to Jorokhel.  At approximately 0730, insurgent forces launched a coordinated attack consisting of Small Arms Fire (SAF) and Rocket Propelled Grenades (RPG).  An RPG impacted close to where he was standing and left him momentarily dazed with a sharp pain in his left ear, temporary hearing loss, and some bleeding from the left ear.

	b.  he was treated by a medical officer at the Craig Joint Theater Hospital, on 30 September 2009, and diagnosed with a tympanic membrane perforation of the left ear.  The medical official indicated that the injury was incurred in the line of duty.  The applicant experienced headache, tinnitus, and confusion and disorientation as a result of his injury.

5.  He provided a health record, dated 30 September 2009, which shows the injury to his left ear resulted from a terrorist explosion when an RPG impacted near him, in a very enclosed space, during an ambush and he returned fire with a Light Anti-Armor Weapons System (M-72).  He was treated with Motrin, Flonase, and Keflex.  The medical officer noted he had a similar injury in July 2009 which resulted in bleeding in both ears but made no correlation between the two injuries to indicate they were related.

6.  He provided a DA Form 2823, dated 2 October 2009, wherein a fellow Soldier stated that on 28 September 2009 he was on a mission with the applicant when they received SAF and RPG fire.  The applicant and another Soldier entered a cleared building and took up a position on the roof.  He watched the RPG impact into the wall the applicant and other Soldier were standing near during the firefight.  After the impact the applicant and other Soldier returned fire.

7.  He was honorably released from active duty on 25 April 2010.  His DD Form 214 shows he served in Afghanistan from 22 April 2009 to 27 February 2010. This form also shows:

* Iraq Campaign Medal with two bronze service stars
* “NATO Afghanistan Service Medal”
* Bronze Star Medal
* Army Commendation Medal (2nd Award)
* Purple Heart
* Army Achievement Medal
* National Defense Service Medal
* Afghanistan Campaign Medal with two bronze service stars
* Global War on Terrorism Service Medal
* Army Service Ribbon
* Overseas Service Ribbon (2nd Award)
* Armed Forces Reserve Medal with "M" Device (2nd Award)
* Combat Infantryman Badge
* Ranger Tab

8.  He provided a letter from the HRC, Awards and Decorations Branch, dated  19 December 2011.  The letter disapproved his request for award of the Purple Heart.  HRC stated the outpatient records, dated 8 December 2009, stated he received a similar injury in July 2009 which caused bleeding in both ears, the injury sustained on 28 December 2009 appears to be an aggravation of the previous injury.

9.  Army Regulation 600-8-22 (Military Awards) 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.

10.  Army Directive 2011-07 (Awarding the Purple Heart), issued on 29 April 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 mild 

traumatic brain and concussive injuries that do not result in a loss of consciousness).  This message does not change the standards for award of the Purple Heart for concussion injuries and is retroactive to 11 September 2001.  A diagnosis of concussion or mild traumatic brain injury, any period of loss or a decreased level of consciousness, any loss of memory for events immediately before or after the injury, neurological deficits (weakness, loss of balance, change in vision, praxis (i.e. difficulty with coordinating movements), headaches, nausea, difficulty with understanding or expressing words, sensitivity to light, etc.) that may or may not be transient, and an intracranial lesion identified by a (positive computerized axial tomography (CAT) or magnetic resonance imaging (MRI) scan) are included in a non-exclusive list of signs, symptoms or medical conditions documented by a medical officer or medical professional that meet the standard for award of the Purple Heart.  Additionally, a limitation of duty following the incident (limited duty, quarters, etc.), pain medication such as acetaminophen, aspirin, ibuprofen, etc. to treat injuries, such as headache, referral to neurologist or neuropsychologist to treat the injury, and rehabilitation (such as occupational therapy, physical therapy, etc.) to treat injury are included in the non-exclusive list of medical treatment for concussion that meet the standard of treatment necessary for award of the Purple Heart. 

DISCUSSION AND CONCLUSIONS:

1.  The applicant's medical records and witness statement clearly show that he was injured as a result of a hostile enemy fire, wherein an RPG exploded near his position causing a contusive injury to his left ear.  

2.  HRC denied his request for award of the Purple Heart opining the injury could have been an aggravation of a previous injury which occurred in July of 2009.  However, there is no indication in his medical record to show medical officials linked the two injuries or felt that the second injury was likely due to an aggravation of the first.

3.  Further, his medical record shows the concussive injury he sustained while engaging the enemy and treatment he received for this injury met the criteria for award of the Purple Heart based on Army Directive 2011-07.  Therefore, he is entitled to award of the Purple Heart and his record should be updated to reflect this award.


BOARD VOTE:

____x___  ____x___  ____x___  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

The Board determined that the evidence presented was 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:

* awarding him the Purple Heart (2nd Award) for wounds received in action on 28 September 2009
* deleting from his DD Form 214 for the period ending 25 April 2010 the Purple Heart 
* adding to his DD Form 214 for the period ending 25 April 2010 the Purple Heart (2nd Award)



      _______ _   __x_____   ___
       	   CHAIRPERSON
      
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.



ABCMR Record of Proceedings (cont)                                         AR20120002644





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ABCMR Record of Proceedings (cont)                                         AR20120002644



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