AR20160001391

IN THE CASE OF:

BOARD DATE: 31 March 2016

DOCKET NUMBER: AR20160001391

BOARD VOTE:

_________ _______ ________ GRANT FULL RELIEF

________ ________ ________ GRANT PARTIAL RELIEF

________ ________ ________ GRANT FORMAL HEARING

___x____ ___x____ ___x____ DENY APPLICATION

2Enclosures
1. Board Determination/Recommendation
2. Evidence and Consideration

IN THE CASE OF:

BOARD DATE: 31 March 2016

DOCKET NUMBER: AR20160001391

BOARD DETERMINATION/RECOMMENDATION:

The evidence presented does not demonstrate the existence of a probable error or injustice. Therefore, the Board determined 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.

IN THE CASE OF:

BOARD DATE: 31 March 2016

DOCKET NUMBER: AR20160001391

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 PurpleHeart.

2. The applicant states he recently received a letter from the U.S.Army Human Resources Command (HRC) that disapproved award of the PurpleHeart because they felt his injuries sustained in a vehicle accident were not a direct result of enemy action. He believes the accident occurred as a direct result from enemy fire and he should be awarded the PurpleHeart for his injuries. He provided numerous statements supporting his claim that the accident occurred due to their convoy being attacked by the enemy. He believes HRC did not look at all of the supporting statements he provided which specifically address the issue.

3. The applicant provides:

* Enlisted Record Brief (ERB)
* orders awarding him the Combat Action Badge
* Standard Form 600 (Chronological Record of Medical Care), dated 5October 2009
* DAForm4856 (Developmental Counseling Form), dated 1November 2009
* DAForm638 (Recommendation for Award), dated 21October 2009
* Army Commendation Medal with “V”Device Certificate
* radiology results from the Troop Medical Clinic, FortCarson, CO, dated 29July 2010
* self-authored statement to HRC, dated 6February 2015
* DAForm4187 (Personnel Action), dated 4March 2015
* six letters of support
* newspaper article

CONSIDERATION OF EVIDENCE:

1. On 10 January 2008, he enlisted in the Regular Army for a term of 5 years.

2. He deployed to Afghanistan from 12 May 2009 to 14 May 2010.

3. A Standard Form 600, dated 5 October 2009, states he presented himself with complaints of upper back pain “after [his] vehicle was rear-ended by a jingle truck during today’s mission.” He had full range of motion with no shooting pain, no tingling in any extremities, and no numbness or pain anywhere else. Muscle pain was local to upper left back with no inflammation in the area. His condition was assessed as “experiencing possible whiplash.” The Standard Form 600 was signed by PrivateFirstClass (PFC) D____ and initialed by a captain (position not identified).

4. A DAForm4856, dated 1 November 2009, stated the applicant and several others were injured when a jingle truck slammed into the truck he was in. He sustained minor injuries, but it was enough to put him down for a few days.

5. Task Force Mountain Warrior Permanent Order Number310-209, dated 6November 2009, awarded him the Army Commendation Medal with “V”Device for valorous achievement on 5 October 2009. His certificate reads in part: “His dedication to duty and personal courage in combat while under direct enemy fire was instrumental to the unit’s success and provided security for three local Nationals.”

6. Radiology results from 1-31July 2010 showed a normal study for C-spine series (5), cervical spine series with obliques, and T-spine (2), thoracic spine series. An L-spine series (5), lumbosacral spine with obliques, showed L5-S1 posterior disc space narrowing was upper limits physiologic range, negative for fracture.

7. On 11 July 2012, he immediately reenlisted for a term of 4 years.

8. On 6 February 2015, he submitted a memorandum to HRC requesting award of the PurpleHeart and he stated:

a. On 5 October 2009, he was assigned to the 2nd Platoon, 984th Military Police (MP) Company, 759th MP Battalion deployed to Forward Operating Base (FOB) Blessing, Kunar Province, Afghanistan.

b. Second Platoon was headed west to east along route Rhode Island when they encountered three local national jingle trucks, which needed escort due to the type of supplies they were transporting. The jingle trucks were placed in their convoy. The convoy was approaching Tantil village when they started to received effective small arms fire. The enemy was engaging all of their vehicles from the mountains and cornfields on the north and south sides. At the same time the convoy halted because of another element ahead of them and the jingle truck drivers began to panic and swerve trying to pass each other.

c. This resulted in one of the jingle trucks colliding with the Mine Resistant Ambush Protective (MRAP) vehicle in which he was a passenger. He was wearing his seatbelt but at the same time was providing his gunner with ammunition. He remembers the impact being tremendous, because he thought their truck had been hit by a rocket propelled grenade. He felt pain instantly in his back, but knew there was not much that could be done so he continued on with the mission because they were still receiving heavy enemy fire.

d. When FirstLieutenant (1LT)N____ asked for a dismount to help with rounding up the jingle truck drivers who were now receiving constant enemy fire he volunteered. He asked his gunner to provide cover fire so they could exit the vehicle. When he met up with 1LTN, he directed them to take cover behind the wheel well of one of the jingle trucks. Once good cover was established, 1LTN____ started to find cover for the drivers and he started to engage the enemy with his M4. During the firefight he began to run low on ammunition and informed 1LTN____ he wouldn’t be able to provide much more fire. The applicant, and his interpreter made their way back to their vehicle and they pushed out of the area with the jingle truck drivers in their remaining operational vehicle.

e. When they arrived at Combat Outpost Michigan, his medic, PFCD____, did a thorough examination and once they arrived back at FOB Blessing he provided him with some medication for spasms he was having.

f. At the time of the incident there was so much excitement that he never realized how bad he was hurt. He finished the deployment and never sought further medical evaluation because of the lack of personnel they had in their platoon. The pain never fully stopped during deployment and he did his best to work out and try to recuperate himself. He did not bring up the pain to any of his leadership because he knew everyone was going through aches and pains.

g. Upon return from deployment, he eventually sought treatment but never really had much success. It wasn’t until 2011 when he really began to struggle with the pain and decided to again seek medical attention. He has since had multiple epidural steroid injections to ease the pain, been through physical therapy, and he was recently told he has degenerative disc disease as a result of the injury he suffered during deployment.

h. His gunner that day, SpecialistB____, injured his hip in the accident; he went through the medical evaluation board process and he is out of the Army. He did not receive a PurpleHeart either.

i. He was awarded the Army Commendation Medal with “V”Device.

j. He struggled with the idea of applying for a PurpleHeart for a long time, because he wasn’t sure his injury was serious enough. After research, he felt that he fully met the criteria for the PurpleHeart, as the injury he suffered that day was caused by a vehicle accident which was a result of direct enemy fire.

9. On 5 March 2015, a DAForm4187, was submitted through his chain of command, including the Commanding General, U.S. Army Criminal Investigative Command, to HRC recommending approval of the award of the PurpleHeart. The DAForm4187 included six witness statements.

a. Five of the statements, including one from 1LTN, attest to the fact that the convoy came under fire from the enemy and when the jingle truck drivers panicked one of the trucks rear-ended the applicant’s MRAP. They also attest to the fact that despite his injury, the applicant dismounted to assist 1LTN____ and provided covering fire.

b. A statement, dated 30 January 2015, from then StaffSergeantS____, indicates he was not present during the action on 5 October 2009. However, after the incident the applicant was in obvious discomfort for several days wearing gear that made the missions difficult. After some time (maybe a couple of weeks) he seemed to recover although he still complained of some back pain intermittently.

10. On 1 December 2015, HRC disapproved award of the PurpleHeart to the applicant for injuries received while deployed in support of Operation Enduring Freedom.
a. After a thorough review of the information provided, the award of the PurpleHeart for this particular event did not meet the statutory guidance.

b. According to the narrative provided in the request, the applicant received injuries as a result of a civilian vehicle colliding with the MRAP vehicle in which he was a passenger.

12. On 22 January 2016, he was discharged by reason of disability, severance pay, combat related.

REFERENCES:

1. Department of Defense (DOD) Manual Number1348.33, volume 3, provides guidance regarding DOD-wide performance and valor awards (excluding the Medal of Honor and Defense/Joint Awards), including basis and eligibility requirements, who is eligible to receive, and who is eligible to authorize the decorations and awards.

a. Enclosure3 (DOD-Wide Valor and Performance Decorations and Awards), paragraph 5c(1)(b), states a wound for which the PurpleHeart is awarded must have been of such severity that it required treatment, not merely examination, by a medical officer. Additionally, treatment of the wound shall be documented in the service member’s medical and/or health records. Award of the PurpleHeart 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 were such that they would have required treatment by a medical officer if one had been available to treat them.

b. A medical officer is defined as a physician with officer rank.

c. A medical professional is defined as a civilian physician or a physician extender. Physician extenders include nurse practitioners, physician assistants and other medical professional qualified to provide independent treatment, for example, independent duty corpsmen and special forces medics. Basic corpsmen and medics, such as combat medics, are not physician extenders.

2. Army Directive2011-07 (Awarding of the PurpleHeart) states authority to approve or disapprove recommendations for the award for Soldiers who did not receive a PurpleHeart while serving in a unit with approval authority for wartime awards is the Commander, HRC, and may be further delegated in writing no lower than the Branch Chief, Awards and Decorations Branch, HRC.

DISCUSSION:

1. The applicant’s record of treatment indicated he was experiencing possible whiplash and was signed by a PFC. It appears the PFC was a medic and did not meet the definition of a medical professional as defined in DOD Manual Number 1348.33, volume3. It was initialed by a CPT, but his position is not shown.

2. There is no evidence his injury was of such severity that it required treatment by a medical officer. There is no statement indicating that the extent of his injury was such that it would have required treatment by a medical officer if one had been available.

//NOTHING FOLLOWS//
ABCMR Record of Proceedings AR20150000953

Enclosure 1

ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

RECORD OF PROCEEDINGS

ABCMR Record of Proceedings (cont) AR20160001391

2

ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

RECORD OF PROCEEDINGS

Enclosure 1

ABCMR Record of Proceedings (cont) AR20160001391

2

ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

RECORD OF PROCEEDINGS

Enclosure 2