BOARD DATE:	  16 April 2013

		DOCKET NUMBER:  AR20120017523 


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 for a Traumatic Brain Injury (TBI) based on the revised criteria due to concussions and correction of his DD Form 214 (Certificate of Release or Discharge from Active Duty) to show this award.

2.  He states he was not awarded the Purple Heart for a TBI that he sustained during incidents when two Improvised Explosive Devices (IEDs) exploded and he lost consciousness both times.

3.  He provides:

* Letter from the Army Review Boards Agency (ARBA), dated 27 March 2012
* Letter from the U.S. Army Human Resources Command (HRC), Awards and Decorations Branch, Fort Knox, KY, dated 25 July 2012
* Department of Veterans Affairs (VA) Rating Decision, dated 17 July 2009

CONSIDERATION OF EVIDENCE:

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 Army Board for Correction of Military Records (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.  While it appears the applicant did not file within the time frame provided in the statute of limitations, the ABCMR has elected to conduct a substantive review of this case and, only to the extent relief, if any, is granted, has determined it is in the interest of justice to excuse the applicant's failure to timely file.  In all other respects, there are insufficient bases to waive the statute of limitations for timely filing.

2.  The applicant enlisted in the Regular Army on 21 June 2002.  He served in Kuwait and Iraq from 27 January 2003 through 26 August 2003 and from
5 January 2005 through 7 January 2006.

3.  On 31 March 2006, he was honorably released from active duty at the completion of required active service.  The DD Form 214 he was issued does not show award of the Purple Heart.

4.  His service record does not indicate he was diagnosed with TBI while he was on active duty.

5.  He provided a VA Rating Decision, dated 17 July 2009, that shows he was granted service-connection for:

* residuals, TBI (10 percent)
* evaluation of Post-Traumatic Stress Disorder and depression (50 percent), continued
* mechanical low back pain with early facet arthritis, synovitis (20 percent)

6.  The applicant provided a letter from ARBA, dated 27 March 2012, that informed him he had not exhausted all administrative remedies concerning award of the Purple Heart.  He was advised to apply to HRC, Awards and Decorations Branch, Fort Knox.  He was advised if he received a decision from the Army Awards and Decorations Branch and still felt that an error or injustice existed, he could resubmit his application to this Board.

7.  He also provided a letter from HRC, Awards and Decorations Branch, dated 25 July 2012, in response to his request for award of the Purple Heart.  The letter cited the criteria for award of the Purple Heart and stated:

	a.  this office reviewed records from the Defense Casualty Information Procession System and were unable to locate a casualty report under his name;

	b.  without official documentation reflecting that his injuries were the direct result of enemy action, required treatment by a medical officer, and were made a matter of official record, this office was unable to authorize an award of the Purple Heart;
	c.  if he possessed any such documentation, they recommended he forward copies to their office for further consideration; and

	d.  if he didn't possess any documentation of his injuries, this office recommended he contact former units of assignment and any servicing medical unit.

8.  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 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.

9.  Military Personnel (MILPER) Message Number 11-125, issued by HRC, Fort Knox, dated 29 April 2011, informed all members of the Army that the Secretary of the Army had approved Army Directive 2011-07 (Awarding the Purple Heart).  The directive 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).  Diagnosis of concussion or mild TBI are 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.  This message does not change the standards for award of the Purple Heart for concussion injuries.  This policy is retroactive to 11 September 2001.

DISCUSSION AND CONCLUSIONS:

1.  The applicant's request for award of the Purple Heart for TBI based on new regulations was carefully considered.

2.  By regulation, in order to award the Purple Heart it is necessary to establish the Soldier was wounded in action, the wound required treatment by a medical officer, and the treatment record must have been made a matter of official record.

3.  His service record is void of medical documents or other evidence and he did not provide any evidence that indicate he was wounded as a result of hostile action.  Due to the absence of evidence that shows he was wounded or injured as a result of hostile action or was involved in an IED incident, there is an insufficient evidentiary basis for awarding him the Purple Heart in this case at this time.

BOARD VOTE:

________  ________  ________  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 that the overall merits of this case are insufficient as a basis for correction of the records of the individual concerned.



      _________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)                                         AR20120017523



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ABCMR Record of Proceedings (cont)                                         AR20120017523



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