IN THE CASE OF:	  

		BOARD DATE:	  27 January 2015

		DOCKET NUMBER:  AR20140008882 


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 a mild to moderate concussion on 20 April 2005 after the up-armored High Mobility Multipurpose Wheeled Vehicle (HMMWV) he was in took a direct hit from a 155mm howitzer Improvised Explosive Device (IED).

   a.  He states that he was assigned as an advisor with the 1st Battalion, 
2nd Brigade, 1st Division, Iraq Intervention Force (IIF).  At the time, he was conducting combat operations with the 2nd Marine Division and 1st Division Iraqi soldiers in the city of Ramadi, Iraq.

   b.  The IED blast caused him to momentarily blackout.  He remained in a state of confusion and suffered hearing loss for a period of time.  There were limited medical resources and he was assessed by his senior noncommissioned officer (NCO), Sergeant First Class (SFC) E____.  He was then directed to a local medic who treated him for mild head trauma, issued him some Ibuprofen, and returned him to his unit.

   c.  The unit was then ordered to dismount their vehicles and conduct a cordon and search mission for enemy personnel responsible for multiple IED attacks. Upon completion of the mission the unit returned to Fallujah.  He explained to a U.S. Navy corpsman (R____ B____) that he was suffering from knee pain, 
ringing in the ears, headaches, and episodes of dizziness as a result of the IED attack.  He was issued additional pain relief medication.

   d.  He adds that, at the time of the IED attack, there was no standard definition, training, or process to report a traumatic brain injury.  He did not seek treatment for any medical issues until he was remobilized for Afghanistan in 2009.  It was at that time that a line of duty (LOD) investigation was completed, which he provided to the Department of Veterans Affairs (VA) in support of his disability claim.
 
3.  The applicant provides a self-authored statement, request for award of the Purple Heart with four statements and supporting documents, his LOD investigation, military medical records, and VA claim.

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.  A DD Form 214 (Certificate of Release or Discharge from Active Duty) shows the applicant entered active duty on 15 March 1984, was honorably released from active duty (REFRAD) on 14 March 1986, and transferred to the U.S. Army Reserve (USAR).  He was awarded military occupational specialty 12B (Combat Engineer).

3.  Through a series of reenlistments, the applicant continued to serve in the USAR.  He was promoted to staff sergeant (SSG)/pay grade E-6 on 1 February 2003.

4.  He was ordered to active duty in support of Operation Iraqi Freedom (OIF) on 31 August 2004.  He served in Kuwait from 15 November to 22 November 2004 and in Iraq from 22 November 2004 to 19 September 2005.


5.  A DA Form 2166-8 (NCO Evaluation Report) covering the period August 2004 through July 2007 shows he performed duty as an Infantry Company Advisor and was assigned to the 1st Battalion, 2nd Brigade, 1st Division (IFF), Multi-National Command – West, Fallujah, Iraq.

6.  A DD Form 214 shows the applicant entered active duty this period on 
31 August 2004, was honorably REFRAD on 15 October 2005, and transferred to the USAR Control Group (Reinforcement).  Item 13 (Decorations, Medals, Badges, Citations and Campaign Ribbons Awarded or Authorized) does not show the Purple Heart.

7.  Headquarters, 98th Division (Institutional Training), Rochester, NJ , Permanent Orders 076-010, dated 17 March 2006, awarded the applicant the Combat Action Badge for actively engaging or being engaged by the enemy during the period 8 April 2005 to 10 May 2005.

8.  A DD Form 2807-1 (Report of Medical History), prepared by the applicant on 25 May 2006, and a DD Form 2808 (Report of Medical Examination), completed by the examining physician on 7 August 2006 to document the applicant's medical examination, fail to show any reference to injuries sustained as a result of an IED attack on 20 April 2005 or any complaint of knee pain, ringing in the ears, headaches, and/or episodes of dizziness.

9.  The applicant was promoted to SFC (E-7) on 1 January 2006.

10.  He was ordered to active duty in support of Operation Enduring Freedom on 5 April 2009 and served in Afghanistan from 21 June 2009 to 20 March 2010.

11.  A DD Form 214 shows the applicant was honorably REFRAD on 7 May 2010 and transferred to the USAR Control Group (Reinforcement).  Item 13 does not show the Purple Heart.

12.  A review of the applicant's military personnel record failed to reveal evidence that he was awarded the Purple Heart for injuries sustained on 20 April 2005.

13.  In support of his application the applicant provides the following documents.

   a.  DA Form 4187, dated 1 November 2011, with supporting documents, that shows the applicant requested award of the Purple Heart for injuries received on 20 April 2005 in Iraq.


   b.  DD Form 2697 (Post-Deployment Health Assessment), dated
20 September 2005, that shows the applicant reported hearing loss, pain in his head, and knee pain from an IED explosion while on patrol in Iraq.  The medical official referred the applicant for further evaluation.

   c.  DA Form 2173 (Statement of Medical Examination and Duty Status), completed on 21 September 2005, that shows in:

* item 5 (Accident Information)

* block a (Date), "21 September 2005"
* block b (Place), "Camp Atterbury, IN"

* item 30 (Details of Accident), "See Attached DA [Form] 2823 (Sworn Statement)"
* the Deputy Senior Advisor determined the injury is considered to have been incurred in line of duty.

   d.  DA Form 2173, completed on 1 February 2010, that shows in:

* item 5

* block a:  "20 April 2010"
* block b:  "Forward Operating Base, Sharana, Afghanistan"

* item 30 (Details of Accident), "See Attached DA [Form] 2823"

   	(1)  DA Form 2823 (Sworn Statement) completed by Captain (CPT) A____ J. G____, on 21 September 2005, that shows, in pertinent part, "[the applicant's] vehicle took a direct hit from a 155mm howitzer IED.  During this event [the applicant's] left knee was injured by the force of the explosion.  This injury caused severe pain in his knee.  During this event, he also suffered from temporary hearing loss due to his close proximity to the blast, resulting in a loss of hearing and a constant ringing in his ears (tinnitus)."

    	(2)  Standard Form (SF) 600 (Chronological Record, dated 1 February 2010, that shows the applicant was examined based on his complaint of ringing in both ears and pain in both knees stemming from a blast injury which occurred on 20 April 2005 in Iraq.

    	(3)  The commander determined the injury is considered to have been incurred in line of duty.
    	(4)  Headquarters U.S. Army Garrison, Fort McCoy, WI, memorandum, dated 3 February 2010, that shows the assistant adjutant reviewed the LOD for completeness and determined the injuries to be In the Line of Duty.

   e.  DA Form 2823, completed by CPT J____ A. E____, on 26 October 2011, that shows, in pertinent part, "[u]pon impact/explosion of the IED, [the applicant's] head and body was overcome from the blast of the IED which struck the HMMWV in which we were riding, causing head pain and an extreme initial headache."  "[The applicant] was assessed by a local medic and treated for mild head trauma."

   f.  Memorandum for Record (MFR), signed by CPT J____ A. E____ and dated 17 November 2011, subject:  Narrative for Award of Purple Heart to [Applicant], that shows, in pertinent part, "I, SFC [the applicant's name]" and continues to describe the event in the first person, similar to the applicant's description of the event in his application to this Board.

   g.  MFR written and signed by R____ B____, on 28 January 2013, that shows, in pertinent part, he was the hospital corpsman attached to the applicant's unit and "[d]uring the month of April 2005, while conducting combat operations inside the city of Ramadi, Iraq, [the applicant] was traveling in a vehicle that was impacted by a roadside IED.  Upon completion of the mission in Ramadi, [the applicant] returned to the Combat Operating Post in Fallujah where he began to complain of ringing in one side of his ears and experienced frequent episodes of dizziness.  [The corpsman] dismissed [the applicant's] symptoms as a mild to moderate concussion accompanied by tinnitus as a result of his close proximity and exposure to the explosion."

   h.  VA records that show the applicant was granted service connection for the headaches (claimed as head pain) with an assigned rating of 30 percent effective 25 October 2011.

   i.  U.S. Army Human Resources Command (HRC), memorandum, dated 
6 December 2013, that shows the Assistant Chief, Plans and Operations Officer, Awards and Decorations Branch, denied the applicant's request for award of the Purple Heart for injuries received while deployed in support of OIF.  He noted that the medical documentation the applicant provided (the treatment and diagnosis on the incident date of 20 April 2005) does not support a relationship of combat to injury.  The Command Surgeon also reviewed all the medical documentation and found that there were no significant changes in hearing from the audiograms in 2004 and 2009.  In addition, the statements from the medical officer linking the injury to the event show that the condition is not severe enough to merit the award.  Therefore, the documentation did not meet the criteria for award of the Purple Heart.

14.  Army Regulation 600-8-22 (Military Awards) provides policy, criteria, and administrative instructions concerning military awards and decorations.  The Purple Heart is awarded for a wound sustained while in action against an enemy or as a result of hostile action.  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 award.  Substantiating evidence must be provided to verify that the wound was the result of hostile action.

   a.  A wound is defined as an injury to any part of the body from an outside force or agent.  A physical lesion is not required; however, the wound for which the award is made must have required treatment by medical personnel and the medical treatment must have been made a matter of official record.

   b.  The regulation provides examples of enemy-related injuries which clearly justify award of the Purple Heart that, in pertinent part, includes injuries caused by enemy placed mines or traps and concussion injuries caused as a result of enemy generated explosions.

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends that his records should be corrected to show award of the Purple Heart because he was injured as a result of an IED explosion on
20 April 2005 while serving in Iraq.

2.  The applicant's claim to the Purple Heart was carefully considered.

   a.  The evidence of record shows, on 20 April 2005, the applicant's unit was conducting combat operations in Iraq when the vehicle he was in was struck by an IED explosion.

   b.  The applicant states the IED blast caused him to momentarily blackout and that he suffered hearing loss for a period of time.  He also states a local Navy corpsman treated him for mild head trauma, issued him some Ibuprofen, and returned him to his unit.  However, a Navy corpsman's statement shows that upon completion of the mission and return to Fallujah, the applicant complained of ringing in one side of his ears and episodes of dizziness.  The Navy corpsman dismissed the applicant's symptoms as a mild to moderate concussion accompanied by tinnitus as a result of his close proximity and exposure to the explosion.  More importantly, the Navy corpsman does not indicate in his statement that he administered medical treatment or prescribed medication for the applicant's condition.

   c.  There is no evidence of record that shows the applicant received medical treatment for his injuries at the time of the incident (emphasis added).  In fact, the evidence of record shows the first time the applicant reported symptoms related to the IED explosion was in his post-deployment health assessment on 
20 September 2005; four months after the incident under review in this case.

   d.  The two LOD actions the applicant provides (one for an incident on 
21 September 2005 at Camp Atterbury, IN, and the other for an incident on 
20 April 2005 at "FOB Sharana, Afghanistan") offer evidence of injuries that were incurred in Line of Duty.  However, the LOD determination pertaining to the 
20 April 2005 incident was prepared almost five years after the incident and offers insufficient evidence to support award of the Purple Heart.

   e.  HRC, Awards and Decorations Branch, denied the applicant's request for award of the Purple Heart for injuries received while deployed in support of OIF based on the fact that the medical documentation the applicant provided did not support a relationship of combat to injury.

   f.  The applicant provides no new additional evidence to this Board.

3.  The sincerity of the applicant's comments is not in dispute.  However, in order to qualify for award of the Purple Heart there must be evidence that the individual was wounded or injured while in action in the face of the armed enemy or as a result of a hostile act of such enemy; the wound for which the award is made must have required treatment by medical personnel; and the medical treatment must have been made a matter of official record.  The available evidence of record fails to support a claim to the Purple Heart in this case.

4.  Therefore, in view of the foregoing, there is an insufficient evidentiary basis to grant the applicant's request.


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)                                         AR20140008882



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ABCMR Record of Proceedings (cont)                                         AR20140008882



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