BOARD DATE:	  15 September 2015

		DOCKET NUMBER:  AR20150013675


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 correction of his military records by showing he was awarded the Purple Heart (PH) for wounds received in Iraq.

2.  The applicant states his vehicle was in a convoy on 22 January 2008, when it was severely damaged by an improvised explosive device (IED).  His fellow Soldiers were injured and he suffered a traumatic brain injury (TBI).  After his discharge, he was diagnosed with TBI.  He was awarded the Combat Action Badge (CAB) in Permanent Orders 108-15, dated in 2011.  He applied for the PH but his command denied the application because he was not diagnosed with a concussion.  He has now been diagnosed and is being compensated by the Department of Veterans Affairs (VA) for TBI, concussion, dizziness, forgetful episodes, and headaches just to name a few.  He also states that other Soldiers in his unit were unjustly denied other awards and medals.

3.  The applicant provides copies of:

* DD Form 214 (Certificate of Release or Discharge from Active Duty) Member Copy 4
* A VA Rating Decision, dated 22 October 2010 (7 pages)
* A VA decision for service connected compensation, dated 27 October 2010 (4 pages)
* A memorandum, subject:  Award of the CAB, U.S. Army Human Resources Command (HRC), dated 18 April 2011 with Permanent Orders 108-015 attached
* DA Form 4187 (Personnel Action) Request for PH dated 17 August 2011, with narrative and four sworn statements
* A letter from HRC written to the applicant, dated 18 December 2013
* A letter from the VA dated 1 December 2014 (summarizing his current VA benefits)
* A VA letter to the applicant, dated 4 August 2015, with 19 pages of medical documents

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.  On 22 May 2007, the applicant, a member of the U.S. Army Reserve (USAR), was mobilized with the 478th Engineer Battalion.  He subsequently served in Kuwait/Iraq from 15 August 2007 to 14 May 2008.

3.  On 9 June 2008, the applicant was released from active duty.  He had completed 1 year and 18 days of creditable active duty service during this period.  A DD Form 215 (Correction to DD Form 214) shows his awards as:

* National Defense Service Medal
* Global War on Terrorism Service Medal
* Iraq Campaign Medal with bronze service star
* Army Service Ribbon
* Overseas Service Ribbon
* Army Reserve Component Overseas Training Ribbon
* Armed Forces Reserve Medal with “M” Device
* Combat Action Badge



4.  In response to a claim filed by the applicant on 16 June 2010, the VA rendered a rating decision dated 22 October 2010 for service connected disability.  

   a.  This decision shows he was granted service connection:

* for residuals of TBI rated at 10 percent disabling effective 16 June 2010;

* for adjustment disorder with mixed emotions rated at 10 percent disabling effective 20 July 2010;

* for chronic left shoulder strain rated at 10 percent disabling effective 
26 July 2010; and

	b.  This decision also shows he was granted entitlement to a special monthly compensation based on the loss of use of a creative organ effective 26 July 2010; and continuation of a current evaluation for degenerative disc disease of the cervical spine, status post anterior cervical discectomy and fusion with intervertebral disc syndrome, and residual right neck scar rated 10 percent disabling.

5.  The VA rating decision stated the following reasons concerning the applicant’s service connection for TBI:

	a.  His service records noted that he had been involved in an IED blast involving a pressure plate with denial of any injury at the time.  The 10 percent disability rating was based on the highest level for any facet of cognitive impairment and other residuals of TBI not otherwise classified as determined on examination.  A severity level of “1” was assigned for the memory, attention, concentration, executive functions facet, indicating that an examiner found evidence showing a complaint of mild loss of these functions.  However, there was no objective evidence on testing.  All of the other facets related to TBI were assigned a severity level of “0,” indicating no evidence of any abnormality.

	b.  Service connection was established for the applicant’s adjustment disorder with mixed emotions as secondary to his residuals of TBI.  An evaluation of 
10 percent is granted whenever there is occupational and social impairment due to mild or transient symptoms which decrease work efficiency and ability to perform occupational tasks only during periods of significant stress; or symptoms controlled by continuous medication.

	c.  Service connection was established for the applicant’s chronic left shoulder strain as secondary to his residuals of TBI.  

6.  Permanent Orders 108-15 from HRC, dated 18 April 2011, announced the applicant’s award of the CAB for actively engaging or being engaged by the enemy on 22 January 2008.

7.  A DA Form 4187 dated 17 August 2011, indicates that a company grade commander within the 478th Engineer Battalion recommended the applicant for award of the Purple Heart for being wounded in action on 22 January 2008.  The form was addressed through the 926th Engineer Brigade to HRC.

   a.  A one-page narrative states, in essence, that on 28 January 2008, while performing a routine clearance and reconnaissance patrol, the platoon was traveling south.  The seventh vehicle in the platoon was struck by the IED.  The applicant was the gunner in this vehicle.  The damage to the vehicle resulted in a damaged tire, broken wheel rim, brakes, and shock absorber.  The fender was bent and some lights were knocked off the vehicle.  The platoon medic was riding in the vehicle and was able to assess everyone’s condition immediately after the blast.  They were monitored for the recovery period after the blast.  The vehicle was hooked up to a wrecker.  All Soldiers were relocated to other vehicles and were assessed further at the battalion aid station at Camp Ramadi.  All of the personnel mentioned in the statement were personally present and were actively engaged by the enemy with the threat of death or serious bodily harm.
   
   b.  Two attached DA Forms 2823 (Sworn Statement), dated 22 January 2008, are identical except for the name and signatures of the Soldiers making the statement.  The statement makes no mention of injuries to any Soldier.

	c.  An undated statement from a sergeant, USAR, indicating that on 
22 January 20008, he was riding in the back of the vehicle that hit an IED with its left front side.  The vehicle was rendered inoperable and required towing back to Camp Ramadi for repair.  The applicant was the driver.  An assistant driver was also in the vehicle.  The statement makes no mention of anyone being injured by the explosion.

	d.  An undated statement from a specialist, said that on 22 January 2008, he was the gunner in the vehicle that hit the IED.  The vehicle was third in the convoy.  The applicant was driving the vehicle.  Everyone in the vehicle reported themselves to be fine except for a slight ringing in the ears.

8.  On 18 December 2013, HRC informed the applicant via letter that his request for award of the PH was disapproved.  The basis for this decision was the medical diagnosis on the Standard Form 600 stating there was no concussion.  Therefore, he did not incur an injury that met the criteria for the award.

9.  A review of the applicant’s VA medical documents show an unspecified concussion and a post-concussion syndrome; but does not show any dates of onset.  A subsequent assessment and plan for post-concussive syndrome indicated the use of magnetic resonance imaging of his brain with and without contrast for a mild concussive incident secondary to a blast exposure.  However, this document does not specify a date of occurrence or location of such event.

10.  Army Regulation 600-8-22 (Military Awards):

	a.  The PH 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.

	b.  A wound is defined as an injury to any part of the body from an outside force or agent sustained under one or more of the conditions listed above. A physical lesion is not required. However, the wound for which the award is made must have required treatment, not merely examination, by a medical officer. Additionally, treatment of the wound will be documented in the Service member’s medical and/or health record.  Award of the PH may be made for wounds treated by a medical professional other than a medical officer provided a medical officer includes a statement in the Service member’s medical record that the extent of the wounds was such that they would have required treatment by a medical officer if one had been available to treat them.

   c.  When contemplating an award of the PH, 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 sole justification for award.

   d.  Examples of enemy-related injuries which clearly justify award of the PH include concussion injuries caused as a result of enemy-generated explosions resulting in a mild traumatic brain injury or concussion severe enough to cause either loss of consciousness or restriction from full duty due to persistent signs, symptoms, or clinical finding, or impaired brain function for a period greater than 48 hours from the time of the concussive incident.


	e.  Examples of injuries or wounds which clearly do not justify award of the PH include post-traumatic stress disorders, hearing loss and tinnitus, mild traumatic brain injury or concussions that do not either result in loss of consciousness or restriction from full duty for a period greater than 48 hours due to persistent signs, symptoms, or physical finding of impaired brain function.

   f.  When recommending and considering award of the PH for a mild TBI or concussion, 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.

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends that his military records should be corrected by showing he was awarded the PH because his vehicle was hit by an IED in Iraq and he was subsequently diagnosed with having a TBI, concussion, dizziness, forgetful episodes, and headaches just to name a few.

2.  The available evidence shows the applicant was driving a vehicle on 
22 January 2008 when it hit an IED and was severely damaged.

3.  The available evidence includes several sworn statements from individuals who were in the IED damaged vehicle consistently indicate that all of the individuals reported themselves to be fine except for a ringing in their ears.  None of the available evidence indicates the applicant suffered a concussion or TBI so disabling as to cause either loss of consciousness or restriction from full duty due to persistent signs, symptoms, or clinical finding, or impaired brain function for a period greater than 48 hours from the time of the incident.

4.  The applicant’s subsequent diagnosis of TBI in 2010 by the VA is noted.  However, the cause of his TBI is not directly associated with the IED explosion on 22 January 2008 and does not comply with the regulatory guideline stated above.

5.  In view of the above, the applicant’s request for the PH should be denied because there is no evidence showing he suffered a qualifying injury or wound.







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)                                         AR20130004321



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