-
		IN THE CASE OF:	  

		BOARD DATE:	  26 September 2013

		DOCKET NUMBER:  AR20130011848 


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 the Purple Heart for injuries sustained during combat operations in support of Operation Iraqi Freedom (OIF).

2.  The applicant states he was injured when an improvised explosive device (IED) exploded near his vehicle while on patrol in Mosul, Iraq.  He told his leadership at the time that he did not want the Purple Heart because he did not want to stand next to men who lost limbs or had much more severe wounds than himself in an award ceremony.  Now he would like to receive the Purple Heart because he earned it and because he believes he meets the criteria for the award.

3.  The applicant provides:

* partial copies of his service and post-service medical records
* Department of Veterans Affairs (VA) Rating Decision, dated 25 January 2008
* Army Directive 2011-07 (Awarding the Purple Heart), dated 18 March 2011
* U.S. Army Human Resources Command (HRC), Awards and Decorations Branch memorandum, dated 15 April 2013
* Appeal to HRC Denial for the Purple Heart, dated 20 May 2013
* Definition, risk factors, symptoms, treatments, and medications for a ruptured eardrum


* NY Daily News article titled Boston marathon bombing:  Area hospitals treat victims of ear injuries, dated 24 April 2013

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 15 May 2001.  He completed training and he was awarded military occupational specialty 11C (Indirect Fire Infantryman).

3.  His record contains a DA Form 2166-8 (Noncommissioned Officer Evaluation Report (NCOER)) for the period June 2005 through May 2006 that shows he served as a Mortar Team Leader while assigned to Headquarters and Headquarters Company, Task Force 2nd Battalion, 1st Infantry Regiment, Stryker Brigade Combat Team, Mosul, Iraq.

4.  He was honorably released from active duty on 19 July 2007.  His DD Form 214 shows he served in Iraq during the period 15 August 2005 to 29 November 2006.

5.  The applicant subsequently applied to the Awards and Decorations Branch, HRC for award of the Purple Heart.  On 15 April 2013, his request was denied based on the medical documentation provided by the applicant that indicated his follow up examination for subjective hearing loss and tympanic membrane perforation following exposure to an IED attack was normal and without limitations.  Therefore, his injury did not merit the award of the Purple Heart.

6.  In his appeal, the applicant stated the physician's failure to properly document his injury was no fault of his own and although his chain of command wanted to award him the Purple Heart he did not feel that he could stand in an award ceremony next to his fellow Soldiers who had sustained life-changing 


injuries.  However, he now suffers almost daily with chronic ear pain that was the direct result of an IED explosion.  He served his country honorably, has a combat-related injury, and he feels he meets the criteria for award of the Purple Heart.

7.  His official medical records are not available for review in this case; however, he provides medical documents that show:

	a.  on 1 December 2005, a medic indicated "24 y/o W male presents with BI left ear pain.  pt states decreased ability to hear in left ear.  IED explosion happened on 8 November.  pt incountered [sic] gunfire yesterday which caused a lot of pain;"

	b.  on 11 February 2006, he was seen on a routine appointment to recheck his ears, and address questions he had about going to mortar live fire and suffering noise exposure.  The history for his present illness states the applicant had been suffering from ear pain in left ear for 3 months, which started after an IED exploded near him.  On prior exams he had area of distorted-appearing TM (tympanic membrane or eardrum) on the upper portion of the annulus of his left TM.  The findings state that areas that were suspicious were no longer apparent;

	c.  on 8 March 2006, he was seen at the Bassett Army Community Hospital (BACH), Fort Wainwright, AK, Ear/Nose/Throat clinic for noted left-sided TM perforation with drainage immediately after the event, patient with subjective hearing loss now with tinnitus and no vertigo;

	d.  on 8 March 2006, he was seen at the BACH Audiology Clinic for possible hearing loss.  The applicant stated TM perforation was not diagnosed for several weeks following exposure.  Further, he reported decrease in hearing in his left ear with increased sensitivity to loud sounds in left ear following IED.  He received a Diagnostic Audiological Evaluation on the same day;

	e.  a DD Form 2807-1 (Report of Medical History) wherein the applicant reported in item 29 (Explanation of "Yes" Answers) that he sustained a perforated left ear drum when an IED exploded 10 feet from his parked vehicle in 2006.  The medical examiner remarked in item 30 (Examiner's Summary and Elaboration of all Pertinent Data) that as noted, the applicant was involved in deployment to Iraq.  IED ruptured left TM.  Applicant was seen at BACH 4 weeks later at ENT;

	f.  a DD Form 2216E (Hearing Conservation Data) shows the applicant's hearing was tested on 1 May 2007 that resulted in no significant threshold shift;
	g.  in his post-service medical treatment records, he was treated for ear pain at the Alaska VA Healthcare System on 17 February 2011 and 22 April 2013.  The applicant reported on both visits that the origin of his left ear pain was the result of an IED explosion in Iraq; and;

	h.  an Alaska Occupational Health audiogram, dated 16 April 2013.

8.  In addition, he provided his VA Disability Rating, dated 25 January 2008, that shows he was assigned a service-connected non-compensable evaluation for perforation of the tympanic membrane, effective 20 July 2007; Army Directive 2011-7 that clarified the criteria for award of the Purple Heart; and information related to a ruptured eardrum.

9.  His records do not contain a recommendation for the award of the Purple Heart.

10.  Army Regulation 600-8-22 (Military Awards) states the Purple Heart is awarded for a wound sustained 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.  Examples of enemy-related injuries that clearly justify award of the Purple Heart are:

* injury caused by enemy bullet, shrapnel, or other projectile created by enemy action
* injury caused by enemy placed mine or trap
* 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

DISCUSSION AND CONCLUSIONS:

1.  The available documentation does not support the applicant's request for award of the Purple Heart.

2.  To meet the criteria for award of the Purple Heart, an injury caused by hostile action must have been severe enough to require treatment by medical personnel.  Seeking treatment should not be confused with requiring treatment.

3.  The fact that the applicant sustained a perforated eardrum while serving in Iraq is not disputed; however, the evidence provided by the applicant shows that 


on 1 December 2005, he sought treatment for ear pain and that he self-reported that the injury was the result of an IED explosion that occurred on 8 November 2005.  There is no indication he sought or received medical assistance for his injury at the time it occurred.  The applicant contends his leadership wanted to award him the Purple Heart but he provides no evidence to support this contention, nor did he provide witness statements to support that his injury was combat-related.  Without such corroborating evidence it is not possible to determine the origin of his injury.

4.  It is unfortunate that the applicant declined the Purple Heart at the time; however, [absent evidence that conclusively shows his perforated eardrum was the result of hostile action, or that the explosion was generated by the enemy,] there is an insufficient evidentiary basis for awarding the Purple Heart to the applicant in this case.

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)                                         AR20130011848



3


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1

ABCMR Record of Proceedings (cont)                                         AR20130011848



2


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1