IN THE CASE OF:  	  

		BOARD DATE:  29 October 2014	  

		DOCKET NUMBER:  AR20140005384 


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, in effect, the decision by the U.S. Army Human Resources Command (HRC) to deny him award of the Purple Heart be reversed and that he be awarded the Purple Heart. 

2.  The applicant states he believes the record to be unjust because he was involved in an improvised explosive device (IED) attack in 2005.  However, no medical treatment was offered or received.  Since no medical treatment was rendered, he was not awarded the Purple Heart.

3.  The applicant provides:

* Email exchanged with HRC officials
* Multiple applications and responses from this Board
* Reconstructed DA Form 4187 (Personnel Action), dated July 2012
* Multiple letters from HRC
* DD Form 214 (Certificate of Release or Discharge from Active Duty), dated 7 October 2006
* Disability retirement orders, dated 13 November 2013
* Enlisted Record Brief and DA Form 2-1 (Personnel Qualification Record)
* Reconstructed DA Forms 2173 (Statement of Medical Examination and Duty Status), dated 22 April 2012
* DA Forms 3349 (Physical Profile), dated 16 and 18 October 2011
* DA Form 4856 (Developmental Counseling Form)
* DA Form 7652 (Physical Disability Evaluation System (PDES) Commander's Performance and Functional Statement)
* Self-Authored Sworn Statement
* 2006 Report of Medical History
* 2006 Report of Medical Assessment
* 2007 Department of Veterans Affairs (VA) rating decision
* VA progress notes

CONSIDERATION OF EVIDENCE:

1.  The applicant's records show he enlisted in the Regular Army on 8 October 2003 and he held military occupational specialty 21B (Combat Engineer).  He served in Kuwait/Iraq from 20 January 2005 to 24 January 2006. 

2.  He was honorably released from active duty on 7 October 2006 and he was transferred to the U.S. Army Reserve (USAR) Control Group (Reinforcement) to complete his remaining service obligation.  His DD Form 214 does not list the Purple Heart.

3.  On 6 September 2006, the VA awarded him service-connected disability compensation, effective 8 October 2006 for/at the rate of:

* Lumbar spine strain, 10 percent
* Retropatellar pain syndrome, right knee, 10 percent
* Retropatellar pain syndrome, left knee, 10 percent
* Kidney stones, zero percent
* Residual scar to the chest, zero percent
* Migraines, secondary to head trauma, zero percent

4.  On 25 May 2011, he requested to transfer to a troop program unit of the USAR, 689th Engineer Company, and on 26 May 2011, he executed a 1-year extension in the USAR. 

5.  On 2 June 2012, a Health Readiness Coordinator reconstructed three DA Forms 2173 for the applicant: 

	a.  The first DA Form 2173 indicates the applicant sustained knee pain and low back pain in Iraq on 11 September 2005.  He was involved in a motor vehicle accident when a truck rolled over and a machine fell on his knee and chest while he was sitting in the vehicle.  He was seen and treated for this injury in Iraq.  Upon his return to Fort Stewart and while performing physical fitness, he reinjured his knee while running.  He went to the clinic and was given light duty for 30 days.  He was also given medication. 

	b.  The second DA Form 2173 indicates the applicant sustained a disease in Iraq on 11 September 2005.  He developed depression which led to post-traumatic stress disorder (PTSD) during his deployment to Iraq as a result of his injuries.  The injuries caused him to become depressed and have PTSD.  He is being seen by the VA for these conditions. 

	c.  The third DA Form 2173 indicates the applicant suffered from a kidney stone while at Fort Stewart, GA on 22 January 2006.  His medical records reveal he was seen for abdominal pain and a kidney stone was diagnosed. 

6.  Between 2011 and 2013, he petitioned HRC and this Board for award of the Purple Heart.  Each time, HRC returned his request without action and informed him of what was missing in his application: 

	a.  On 17 January 2012, HRC officials informed him that is request was returned without action due to lack of required documentation.  He was informed that Army Regulation 600-8-22 (Military Awards) provides that each award of the Purple Heart must exhibit the following factors: wound, injury, or death must have been the result of hostile action, the wound must require treatment by medical officials, and the treatment must be made a matter of official Army records.  He was also informed that to continue to process his request he would need additional documentation.  His request should include military medical documentation from immediately after or close to the incident date showing a diagnosis and treatment of injuries received, along with two eyewitness statements.  VA documentation alone is not sufficient.  Sworn statements should be written by individuals personally present who can provide a detailed description of events that occurred on a specific date.  The request may be resubmitted with the required supporting documents to HRC for final determination of award of the Purple Heart. 

	b.  On 30 April 2012, HRC officials informed him that his resubmitted request was still missing documentation.  The documents needed include a DA Form 4187, chain of command endorsement through the first general officer in his current command, deployment orders, a one-page narrative describing the incident and conditions, statements from two individuals who were personally present, and military medical documentation describing both the diagnosis and treatment of injuries caused by the enemy immediately or close to the event. 

7.  In July 2012, he submitted a DA Form 4187, signed by his company commander and endorsed by his battalion commander and a general officer, recommending him for award of the Purple Heart for being involved in an IED attack on 18 July 2005.  

8.  On 16 August 2012, HRC officials informed him that his resubmitted request was still missing documentation and was returned without action and indicated the type of documents he needed.

9.  On 26 February 2013, a medical evaluation board (MEB) convened and, after consideration of clinical records, laboratory findings, and physical examinations, the MEB found the applicant was diagnosed with the conditions below.  The MEB recommended referral to a physical evaluation board (PEB).  He agreed.

Diagnosis
Met Retention Standards
Did Not Meet Retention Standards
1.  PTSD, current VA disability 

X
2.  Lumbosacral strain, current VA disability 

X
3.  Retropatellar pain syndrome, both knees, current VA disability 

X
4.  Nephrolithisis
X

5.  Refractive error, myopia
X

6.  Tinnitus, current VA disability
X

7.  Post concussion syndrome 
X

8.  Migraine headaches
X

10.  On 1 November 2013, an informal PEB accepted the VA proposed rating for his disabilities.  The PEB found the applicant's conditions prevented him from performing the duties required of his grade and military specialty and determined that he was physically unfit.   

	a.  The PEB rated his medically-unacceptable conditions under the VA Schedule for Rating Disabilities (VASRD):

* VASRD Codes 9434/9411, PTSD, 70 percent
* VASRD Code 5237, Lumbosacral strain (vehicle rollover), 10 percent
* VASRD Code 5260, right and left retropatellar pain syndrome (vehicle rollover), 10 percent each

	b.  The PEB recommended a combined rating of 80 percent and that his disposition be "Permanent disability retirement."  The applicant concurred with the PEB's findings and recommendation and waived his right to a formal hearing.

11.  On 13 November 2013, the U.S. Army Physical Disability Agency published orders placing him on the Retired List in his retired grade of E-4 effective 19 December 2013. 
12.  On 30 January 2014, HRC officials informed him that after careful consideration, his request for award of the Purple Heart based on injuries received while deployed in support of Operation Iraqi Freedom was disapproved. Based on the information provided, the medical documentation did not support a relationship of a combat injury.  While HRC officials did not doubt the validity of his injury, a request for award of the Purple Heart has several regulatory requirements that were not met in his case.  Therefore, he did not meet the Purple Heat criteria per Army Regulation 600-8-22, paragraph 2-8(h)(7). 

13.  Army Regulation 600-8-22 provides for award of the Purple Heart.  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.

	a.  Examples of enemy-related injuries which clearly justify award of the Purple Heart are as follows: (1) Injury caused by enemy bullet, shrapnel, or other projectile created by enemy action; (2) Injury caused by enemy placed mine or trap; (3) Injury caused by enemy released chemical, biological, or nuclear agent; (4) Injury caused by vehicle or aircraft accident resulting from enemy fire; and 
(5) Concussion injuries caused as a result of enemy generated explosions.

	b.  Examples of injuries or wounds which clearly do not justify award of the Purple Heart are as follows: (1) Frostbite or trench foot injuries; (2) Heat stroke; (3) Food poisoning not caused by enemy agents; (4) Chemical, biological, or nuclear agents not released by the enemy; (5) Battle fatigue; (6) Disease not directly caused by enemy agents; (7) Accidents, to include explosive, aircraft, vehicular, and other accidental wounding not related to or caused by enemy action; (8) Self-inflicted wounds, except when in the heat of battle and not involving gross negligence; (9) PTSD; and (10) Jump injuries not caused by enemy action.

14.  Military Personnel (MILPER) Message Number 11-125, issued by the U.S. Army HRC, dated 29 April 2011, stated 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).  The U.S. Army HRC has verified that award of the Purple Heart for a traumatic brain injury is retroactive only to 11 September 2001.

DISCUSSION AND CONCLUSIONS:

1.  The Purple Heart differs from all other decorations in that an individual is not "recommended" for the decoration; rather, he or she is entitled to it upon meeting specific criteria.  When contemplating award of the Purple Heart, the key issue that commanders must take into consideration is the degree to which the enemy caused the injury.  The fact that the proposed recipient was participating in direct or indirect combat operations is a necessary prerequisite, but is not the sole justification for the award.

2.  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, the injury/wound must have required treatment by medical personnel, and the medical treatment must have been made a matter of official record.

3.  In this case, the applicant was involved in an IED explosion in Iraq in 2005.  The extent of any injuries sustained at the time is unknown and there is no record of treatment for his injuries at the time or close to the date of such injuries.  Years later (in 2012), several DA Forms 2173 were reconstructed and show a diagnosis of PTSD as well as other injuries related to a vehicle rollover.  

4.  The reconstructed DA Forms 2173 led his entry into the disability system.  He was considered by an MEB that referred him to a PEB.  The PEB recommended permanent retirement by reason of disability.  His records, available evidence, and multiple documents he submitted, when considered together, do not meet the criteria for award of the Purple Heart: 

	a.  The disabilities mentioned on his MEB and PEB do not support a relationship to combat injury. 

	b.  In his own statement, he indicated "treatment was not offered or given."  In order to meet the criteria for award of the Purple Heart, medical treatment must be required.  

	c.  There are no treatment records to show he required and/or received treatment after or close to his IED incident. 

5.  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)                                         AR20140005384



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ABCMR Record of Proceedings (cont)                                         AR20140005384



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