IN THE CASE OF:	  

		BOARD DATE:	  8 May 2014

		DOCKET NUMBER:  AR20130015318 


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:

* the U.S. Army Human Resources Command (HRC) denied his request for award of the Purple Heart
* it was determined that his injuries were not sustained as a result of enemy action
* the first document with his application to HRC was a medical record that was of an evaluation immediately after an improvised explosive device (IED) attack in which he was a gunner in the vehicle that was struck
* the medical document stated the reason for the evaluation as "injury from terrorist blast"
* the reason the medical document did not show his immediate complaints of other medical issues was due to his fear of being removed from the infantry reconnaissance team he was serving with and he refused to forsake his men
* he did not complain of his medical issues resulting from the terrorist explosion until he returned stateside and his men were out of harm's way
* the medical document shows he was exposed to concussive blast waves that are proven to lead to traumatic brain injury (TBI) symptoms which he has displayed since the event
* from the origin of the terrorist blast until he returned stateside, there is no other event in his medical records that could have caused his injuries
* not being awarded the Purple Heart for injuries he suffered from an enemy blast almost seems as if it would be punishment for doing the right thing and upholding the warrior ethos
* his decision to be strong and temporarily ignore his injuries displays that he always placed the mission first, never accepted defeat, and never quit

3.  The applicant provides:

* self-authored statements
* letter from HRC, dated 14 December 2012
* extracts of medical records
* TBI Score, dated 16 October 2007
* 2 Department of Veterans Affairs (VA) rating decision extracts

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's complete record, including medical records, is unavailable for review.

3.  The applicant enlisted in the Regular Army on 27 May 2004.

4.  His Enlisted Record Brief shows he deployed to Iraq during the period 19 June 2006 through 18 September 2007.

5.  On 6 October 2008, the applicant was honorably released from active duty and transferred to the U.S. Army Reserve Control Group (Reinforcement).  His DD Form 214 (Certificate of Release or Discharge from Active Duty) as amended by a DD Form 215 (Correction to DD Form 214), dated 5 November 2008, shows in Item 18 (Remarks):

* served in a designated imminent danger pay area
* service in Iraq for the period 19 June 2006 through 18 September 2007
* post deployment mobilization respite absence for the period 7 August 2008 through 10 August 2008

6.  The applicant provides a letter from HRC, dated 14 December 2012, which shows his request for award of the Purple Heart was denied.  HRC determined his injuries were not sustained as a result of enemy action.

7.  He provides medical record extracts which show:

   a.  He was seen on 20 September 2006 for an injury from a terrorist explosion blast.  He had no medical, physical, or psychological complaints at the time.  The attending physician wrote, "While Soldier serving on active duty in Iraq, the Soldier was involved in an IED attack during military patrol missions."  He had no signs of trauma and he was released without limitations.

   b.  On 16 October 2007, he was given a TBI score of 13 and answered "yes" to the following questions on a TBI survey:

*	While deployed, were you exposed to or near a blast, IED explosion, car bomb, suicide explosion or exposed to any other combat event that caused a blow or jolt to your head? 
*	As a result of the event, were you dazed, "saw stars," "bell rung" or "lights knocked out?"
*	Since the event have you experienced new onset headaches or more frequent headaches than prior to the event?
*	Since the event have you had any ongoing problems with sleep?
*	Since the event have you experienced any balance problems when you walk, stand or run?

   c.  On 20 February 2008, he was seen at the Madigan Army Medical Center, Fort Lewis, now Joint Base Lewis-McChord, Tacoma, WA, for insomnia.

	d.  On 20 May 2008, he was seen at Madigan Army Medical Center for a complaint of tinnitus in both ears for two months.

8.  The applicant provides extracts of his VA ratings.

     a.  His VA rating, dated 10 March 2009, shows a rating decision for moderately severe post-concussion syndrome with headaches, dizziness, and staggering was deferred.  He was granted service-connected disability as follows:

* post-traumatic stress disorder, 50 percent
* right knee mild retropatellar pain syndrome with acute meniscal tear, 20 percent
* left knee mild retropatellar pain syndrome, 10 percent
* moderate lumbar spine strain, 10 percent
* mild cervical spine strain, 10 percent
* tinnitus, 10 percent

   b.  His VA rating, dated 5 August 2010, shows his rating of 0 percent for migraine headaches with occasional dizziness associated with IED explosion was increased to 50 percent. 

9.  Army Regulation 600-8-22 (Military Awards) provides that 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 that the wound was the result of hostile action, the wound must have required treatment, and the medical treatment must have been made a matter of official record.  Examples of enemy-related injuries which clearly justify award of the Purple Heart are as follows:  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; and/or concussion injuries caused as a result of enemy generated explosions.

10.  Military Personnel (MILPER) Message Number 11-125, issued by the U.S. Army Human Resources Command, Fort Knox, KY, 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 criteria for an award of the Purple Heart requires the submission of substantiating evidence to verify the injury/wound was sustained in action against an enemy or as a result of hostile action, that the injury/wound required treatment by medical personnel, and that the medical treatment was made a matter of official record.

2.  Although he provides medical documentation showing he was seen for an injury from a terrorist explosion blast, this documentation fails to show an actual injury as a result of hostile action or specifically when it occurred.

3.  Notwithstanding his sincerity, in the absence of documentation that conclusively shows he was wounded or injured as a result of hostile action, treated for those wounds/injuries, and his treatment was made a matter of record, there is insufficient evidence upon which to base award of the Purple Heart 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)                                         AR20130015318



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ABCMR Record of Proceedings (cont)                                         AR20130015318



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