IN THE CASE OF:	  

		BOARD DATE:	  9 July 2015

		DOCKET NUMBER:  AR20140020947 


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

2.  The applicant states he should be awarded the Purple Heart for wounds/ injuries received in action caused directly by the enemy.  There were incidents on 1 June 2004 and on 8 September 2005.  The incidents happened in Iraq at airport surveillance radar (ASR) sites Jenny and Minneapolis.  The first incident that occurred on 1 June 2004 was caused by an improvised explosive device (lED) detonation as the vehicle was approaching an Iraqi Civil Defense Corp (ICDC) checkpoint, the vehicle was heavily damaged.  That accident resulted in four Soldiers injured and he was one of the casualties evacuated.  He stayed two nights at a Combat Support Hospital due to injuries caused by the lED.  Another IED incident occurred on 8 September 2005 and caused damage.  It consisted of a foreign object in the middle of the road followed by small arms fire.  Two Soldiers were injured, including him.  He was treated at Forward Operating Base (FOB) Warrior.  He and the other Soldier suffered concussions.  Due to concussions late or lasting effects of traumatic brain injury (TBI) were diagnosed on him.  He was assigned to Company B, 105th Engineer Battalion. 

	a.  The wording of line 9 on the Medical Evacuation form and the Line of Duty for the incident that occurred on 1 June 2004 states that he hit a barrier.  This is correct.  However, it was due to the IED.  As the Board views both documents, the Board will see that he suffered a concussion prior to the barrier due to the steering wheel.  He also suffered a concussion on 8 September 2005 and he was later treated once he arrived at FOB Warrior, their destination.

	b.  The records states that in both incidents he was exposed to two different IEDs.  He has sworn statements for both incidents and the entry on line 9 on the Medical Evacuation form for one incident.   He has included the neurological report that clarifies his medical records all prior to the incidents due to exposure and stating that based on the profile of neuropsychological data, the patient presents the late or lasting effect of mild TBI.

3.  The applicant provides:

* HRC denial memorandum, dated 25 September 2014
* Military Personnel (MILPER) Message Number 11-125, subject: Army Directive 2011-01 (Awarding the Purple Heart)
* Enlisted Record Brief
* Mobilization Orders 025-017, dated 11 February 2004
* Mobilization Orders 056-295, dated 25 Mach 2005
* Chronological Records of Medical Care
* Sworn Statement from staff sergeant (SSG) JAM
* Self-authored Sworn Statement
* RED-8 Report in the form of an email 
* Incomplete DA Form 2173 (Statement of Medical Examination and Duty Status)
* Department of Veterans Affairs (VA) Compensation and Pension (C&P) Examination 

CONSIDERATION OF EVIDENCE:

1.  The applicant's records show he enlisted in the North Carolina Army National Guard (NCARNG) on 29 August 2002.  He completed training and was awarded military occupational specialty 21T (Technical Engineer). 

2.  He was ordered to active duty in support of Operation Iraqi Freedom (OIF) on 19 February 2004.  He served in Iraq from 16 March 2004 to 23 December 2004. He was assigned to Company B, 105th Engineer Battalion.  He was honorably released from active duty on 21 February 2005 to the control of his State ARNG. 

3.  He was ordered to active duty in support of OIF on 6 April 2005.  He served in Kuwait/Iraq from 10 June 2005 to 1 June 2006.  He was assigned to the 725th Quartermaster Company.  He was honorably released from active duty on 14 July 2006 to the control of his State ARNG

4.  He was discharged from the NCARNG on 30 June 2006.  He subsequently enlisted in the Regular Army on 15 July 2006 and he reenlisted on 11 August 2007.  He was promoted to SSG/E-6 on 20 August 2013.

5.  His records were considered by a medical evaluation board (MEB) on 2 November 2012 for post-traumatic stress disorder.  The MEB referred him to a physical evaluation board (PEB).  A PEB subsequently convened and rated his PTSD condition and recommended his placement on the temporary disability retired list (TDRL). 

7.  He retired by reason of temporary disability on 20 August 2013 and he was placed on the TDRL in his retired rank/grade of SSG/E-6 on 21 August 2013.

8.  On 7 November 2014, a TDRL PEB convened and recommended his permanent retirement by reason of disability. 

9.  On 17 June 2015, by email, an official with the Casualty Support Section, HRC, stated there was no record that showed the applicant had been reported as a casualty (wounded as a result of enemy action) during his service in Iraq. 

10.  He provides: 

	a.  RED-8 Serious Incident Report in the form of an email, dated 2 June 2004. The author reported a vehicle being struck by an IED on 1 June 2004.  A platoon was responding to an IED call at Area of Operations Thunder.   While enroute to the site, a vehicle was hit by an IED close to the ICDC checkpoint on ASR Jenny. The vehicle had damage to the radiator, grill, brush bar, lights, axle, and body damage to the front and back.  Four service members were injured, among them the applicant.  He suffered a concussion, gashed head, sprained ankle, and bruised collar bone.  He was evacuated to Camp Caldwell Combat Support Hospital and he was kept for 2 nights.

	b.  An incomplete/unsigned DA Form 2173, dated 7 June 2005.  It states the nature and extent of the injury as "Crashed into a barrier, motor vehicle accident (IED)."  The applicant hit his left shoulder and forehead on the steering wheel and he was admitted for a concussion.  The date is shown as 7 June 2005.

	c.  A Sworn Statement, dated 11 June 2013, from SSG JAM, of the 549th Military Police Company.  He states that on 1 June 2004, while deployed to Iraq, the applicant and he were part of a quick reaction force responding to an IED call.  During the movement out to the objective, the applicant was driving his HMMWV when it was struck by a separate IED.  He (the author) was the gunner in front of the applicant's HMMWV when the attack occurred.  His vehicle was heavily damaged and he was transported via medical evacuation to FOB Cobra for injuries resulting from the IED attack.  He was held overnight at Charlie Medical Company for treatment. 

	d.  Self-authored sworn statement (unsworn/unsigned), dated 8 June 2004.  He states that on the date of the accident, he reported to Charlie Medical Company for feeling lightheaded and small pain on the right knee.  The doctor said it was just a concussion.  The accident also caused a bruised left cheek, bruised left arm, bruised left right forearm, and small bleeding that was not serious on the right thigh.  He was sent to quarters for 1 1/2 weeks. 

	e.  Chronological Records of Medical Care, dated in June 2004, that show he hit his head as a result of a motor traffic accident when his vehicle hit a traffic barrier.  He had a concussion. 

	f.  Chronological Record of Medical Care, dated 14 July 2011, completed at Tripler Army Hospital, that shows he was seen for a neuropsychological evaluation due to a history of concussion/TBI.  He reported a total of 12 exposures to IEDs, two of which caused him to lose consciousness and 5 others caused him concussion.  He reported he first lost consciousness in 2004 and he was taken to the hospital for 48 hours.  Based on the profile of neurological data, his pattern showed a pattern of scores that suggested the presence of late or lasting effects of TBI.   His diagnosis was cognitive impairment, PTSD, and a history of head injury.

	h.  MILPER Message 11-125, dated 29 April 2011, clarifying the guidance with regard to the award of the Purple Heart; his Enlisted Record Brief and various mobilization orders from 2004 and 2005; and his C&P examination, dated 6 February 2012.  

11.  On 25 September 2014, after consideration by the Awards and Decorations Branch, HRC, disapproved his award of the Purple Heart for injuries received while deployed in support of OIF.  The Chief, Awards and Decorations Branch, stated that award of the Purple Heart is limited to members who have been wounded or killed as a direct result of enemy action.  According to the medical documents he provided, his injuries were caused by a motor vehicle accident and not by enemy action.  No eyewitness statements were provided to corroborate injuries he sustained as a result of enemy action.  While this was an unfortunate event, a request for award of the Purple Heart has several regulatory requirements that were not met by the documents provided. 

12.  Army Regulation 600-8-22 (Military Awards) provides that the Purple Heart is awarded for a wound sustained 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 which 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; and concussion injuries caused as a result of enemy-generated explosions.

13.  In a memorandum, dated 18 March 2011, subject:  Army Directive 2011-07 (Awarding of the Purple Heart), the Secretary of the Army stated, in part, that Soldiers who received non-visible injuries, often characterized as concussions resulting from explosive blasts, may not be receiving the recognition they earned. The directive provided clarifying guidance when considering recommendations for award of the Purple Heart for concussions. 

	a.  Approval of the Purple Heart required a wound, injury or death must have been the result of an enemy or hostile act and the wound must have required treatment, not merely examination, by a medical officer and the treatment of the wound shall be documented in the Soldier's medical record.  A medical professional was defined as a civilian physician or physician extender.  Basic medics (such as combat medics) are not physician extenders.

	b.  When recommending and considering award of the Purple Heart for concussion injuries, the chain of command will ensure that both diagnostic and treatment factors are present and documented in the Soldier's medical record by a medical officer.

	c.  The following nonexclusive list provides 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:

		(1)  Diagnosis of concussion or mild traumatic brain injury.

		(2)  Any period of loss or a decreased level of consciousness.

		(3)  Any loss of memory of events immediately before or after the injury.

		(4)  Neurological deficits (weakness, loss of balance, change in vision, difficulty with coordinating movements, headaches, nausea, difficulty with understanding or expressing words, sensitivity to light) that may or not be transient.

	d.  The following nonexclusive list provides examples of medical treatment for concussion that meet the standard of treatment necessary for award of the Purple Heart:

		(1)  Limitation of duty following the incident.

		(2)  Pain medication, such as acetaminophen or ibuprofen, to treat the injury.

		(3)  Referral to a neurologist or neuropsychologist to treat the injury.

		(4)  Rehabilitation, such as occupational therapy or physical therapy, to treat the injury.

DISCUSSION AND CONCLUSIONS:

1.  The criteria for award of the Purple Heart require a Soldier to have been injured or wounded by hostile action, the wound must have required treatment by medical personnel, and the medical treatment for wounds or injuries received in action must have been made a matter of official record.  

2.  Army Directive 2011-07 specifically states the wound/injury must have required treatment by a medical officer not merely an examination.  The medical treatment for concussion that meets the standard of treatment necessary for award of the Purple Heart includes limitation of duty following the incident, pain medication such as acetaminophen to treat the injury, referral to a neurologist to treat the injury, and rehabilitation to treat the injury.  

3.  With respect to the injury dated 1 June 2004: 

	a.  The evidence of record the applicant provided shows that on 1 June 2004, in Iraq, he and other Soldiers were in a HMMWV that appears to have been struck by an IED.  The vehicle hit a traffic barrier and this motor vehicle accident caused the applicant to hit the steering wheel.  He was taken to local military hospital and kept overnight for evaluation.  

	b.  He was diagnosed with a concussion and this diagnosis followed him and remained in place throughout the years, including a diagnosis of mild TBI in 2011 at Tripler Army Medical Center.  The concussion, however, appears to have been caused by the accident; not by the IED explosion.  Because his injury was not caused by the IED itself but by the vehicle hitting the barrier, he did not then and does not now qualify for award of the Purple Heart. 

4.  With respect to the injury dated 8 September 2005: 

	a.  The applicant's application to the ABCMR is premature.  Army Regulation 15-185, the regulation under which this Board operates, states in section II, paragraph 2-5 that the ABCMR will not consider an application unless the applicant has exhausted all administrative remedies to correct the alleged error or injustice.  There is no evidence that the applicant has submitted his application for award of the Purple Heart to HRC for the 9 September 2005 incident and was denied this award.

	b.  The Purple Heart is awarded for a wound sustained in action against and 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.  In accordance with paragraph 2-18 and table 2-1 of this regulation, a request for award of the Purple Heart must be submitted to HRC in this case and should include documented evidence of medical treatment pertaining to the wound.  It also should be supported by sworn eyewitness statements or affidavits, witness statements, casualty reports or messages, DA Form 1156 (Casualty Feeder Report), DD Form 1380 (U.S. Field Medical Record), unit and medical journals, and other documentation as necessary to corroborate the award. 

	c.  Because the applicant has not exhausted his administrative remedy with respect to this injury, this part of his application is returned without action being taken by the Board.  However, should his case not be resolved to his satisfaction by HRC and he still feels that an error or injustice exists, he may resubmit his application to this Board requesting the Purple Heart, including evidence of the denial of his request for administrative correction of his records by HRC, as well as evidence supporting his entitlement to this award.

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)                                         AR20140020947



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ABCMR Record of Proceedings (cont)                                         AR20140020947



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