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AF | BCMR | CY2005 | BC-2003-03249
Original file (BC-2003-03249.doc) Auto-classification: Denied

RECORD OF PROCEEDINGS
             AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS

IN THE MATTER OF:      DOCKET NUMBER:  BC-2003-03249
            INDEX CODE:  107.00

            COUNSEL:  NONE

            HEARING DESIRED:  NO

MANDATORY CASE COMPLETION DATE:  25 AUG 06

_________________________________________________________________

APPLICANT REQUESTS THAT:

His records be corrected to reflect award of the Purple Heart (PH) for
Agent Orange exposure during his service in Vietnam.

_________________________________________________________________

APPLICANT CONTENDS THAT:

He should be awarded the PH due to the  fact  that  while  engaged  in
combat in Vietnam, he was sprayed with Agent Orange.  As a  result  of
being  sprayed,  he  acquired  Diabetes,   for   which   he   receives
compensation  from  Department  of  Veterans   Affairs   (DVA).    DVA
determined his diabetes was service connected due to exposure to Agent
Orange.

Applicant's complete submission,  with  attachments,  is  attached  at
Exhibit A.

_________________________________________________________________

STATEMENT OF FACTS:

On 31 May 1951, the  applicant  enlisted  in  the  Regular  Air  Force
(RegAF) and served as an aircraft maintenance  technician  and  flight
engineer.

His records reflect he participated in flight  missions  into  Vietnam
from 22 September 1968 through 7 October 1968, 16  October  through  1
November 1968, 7 November 1968 to 23 November 1968,  23 December  1968
through 9 January 1969 and 17 March 1969 through 1 April 1969.

The applicant retired on 1 March  1972,  in  the  grade  of  technical
sergeant (TSgt).  He served 20 years  and  9  months  of  active  duty
service.

The applicant was diagnosed with adult onset diabetes in 1983  and  is
receiving Department of Veterans Affairs (DVA) disability compensation
for diabetes mellitus based on provisions of Title 38 for  presumptive
service connection  for  Agent  Orange  exposure  due  to  service  in
Vietnam.  His total combined disability rating is 100 percent.

In an application dated 23 September  2003,  the  applicant  requested
award of the PH.  The Board staff advised the applicant on 11 February
2004, that the processing of his request could not be accomplished due
to the fact that the pertinent records to  assist  in  establishing  a
determination were unavailable to the Board because they were  in  the
possession of DVA.  The Board further advised the applicant to  notify
the Board once his DVA claim was finalized and the  necessary  medical
records to process his request would be obtained.

The applicant submitted an  application  for  Combat  Related  Special
Compensation (CRSC) and in February 2004, the Air Force Combat Related
Special Compensation Board approved the request for CRSC.

The applicant submitted a second application in February 2005.   On  7
April 2005, the Board staff advised the applicant that his DVA records
had been received and his case was being forwarded to the  offices  of
primary responsibility for advisory opinions.

_________________________________________________________________

AIR FORCE EVALUATION:

The Chief  Medical  Consultant,  AFBCMR,  states  Agent  Orange  is  a
herbicide that  was  used  in  Vietnam  between  1962  and  1971.   It
contained small amounts of dioxin which has  been  found  to  cause  a
variety of diseases in  laboratory  animals.   Dioxin  has  also  been
associated with an increased risk for the development of  diseases  in
humans including certain  cancers  (specifically  chronic  lymphocytic
leukemia,  soft  tissue  sarcoma,  non-Hodgkin’s  lymphoma,  Hodgkin’s
lymphoma, and prostate cancer) and adult onset diabetes mellitus.  The
Medical Consultant further states that Title 38, Section 1116 provides
for the VA to grant service connected disability benefits for  certain
diseases that develop after service that may have been the  result  of
exposure  to  herbicides  during  service  in  Vietnam.   Adult  onset
diabetes mellitus is one of the diseases identified by  the  Institute
of Medicine/National Academy  of  Sciences  that  is  presumed  to  be
service connected from exposure to Agent Orange.

Servicemembers are entitled to award of the PH for wounds received  as
a direct result of enemy action and for which  medical  treatment  was
required.  However, medical conditions that  are  presumed  under  the
provisions of Title 38 to be service connected  due  to  Agent  Orange
Exposure do not qualify for award of the PH.

Public Law (PL) 108-136, contained a provision to restore the  retired
pay currently deducted from retiree’s accounts due to their receipt of
DVA compensation.   This  restoration  of  retired  pay  is  known  as
Concurrent Retirement and Disability Pay (CRDP).  Since his disability
rating is 100 percent, he is eligible for payments under  CRDP.    The
applicant may elect either CRSC or CRDP,  not  both,  based  on  which
provides the greatest compensation.

The Medical Consultant recommends the requested relief be denied.

A complete copy of the evaluation is attached at Exhibit C.

AFPC/DPPPR states in order for a servicemember to be awarded  the  PH,
the individual must provide documentation to support they were wounded
as a direct result of enemy action.  In addition, the wound must  have
required and received medical treatment  by  medical  personnel.   The
applicant only provided a  copy  of  his  VA  medical  records.   They
further state the applicant has not provided any eyewitness statements
nor medical documentation from the area of assignment to  substantiate
the wounds met the criteria for award of the PH.  Therefore, based  on
the documentation provided they  recommend  the  requested  relief  be
denied.

A complete copy of the evaluation is attached at Exhibit D.

_________________________________________________________________

APPLICANT'S REVIEW OF AIR FORCE EVALUATION:

Copies of the Air Force evaluations were forwarded to the applicant on
26 May 2005, for review and response within 30 days.  As of this date,
no response has been received by this office.

_________________________________________________________________

THE BOARD CONCLUDES THAT:

1.  The applicant has exhausted all remedies provided by existing  law
or regulations.

2.  The application was not  timely  filed;  however,  it  is  in  the
interest of justice to excuse the failure to timely file.

3.  Insufficient relevant evidence has been presented  to  demonstrate
the existence of an error or an  injustice  warranting  award  of  the
Purple Heart Medal.  The applicant claims he is entitled to the Purple
Heart for being exposed to Agent Orange while he  served  in  Vietnam.
We took notice of the applicant’s complete submission in  judging  the
merits  of  the  case;  however,  we  agree  with  the  opinions   and
recommendations of the Air Force and  adopt  their  rationale  as  the
basis for our conclusion that the applicant has not been the victim of
an error or an injustice.  The Board notes the Purple Heart is awarded
for wounds received as a direct result of enemy action.  As  noted  by
the AFBCMR Medical Consultant, while the applicant is suffering from a
medical condition that is  presumed  under  Title  38  to  be  service
connected, the medical condition does not qualify him for award of the
PH.  The personal sacrifice the applicant endured for his  country  is
noted and our decision in no way diminishes the high  regard  we  have
for his service; however, insufficient documentary evidence  has  been
presented to warrant awarding him the Purple Heart.  Therefore, in the
absences of evidence to the contrary, we find no compelling  basis  to
recommend granting the relief sought.

_________________________________________________________________

THE BOARD DETERMINES THAT:

The  applicant  be  notified  that  the  evidence  presented  did  not
demonstrate the existence of material error  or  injustice;  that  the
application was denied without a personal  appearance;  and  that  the
application will only be reconsidered upon  the  submission  of  newly
discovered relevant evidence not considered with this application.

_________________________________________________________________

The following members of the Board considered AFBCMR Docket Number BC-
2003-03249 in Executive Session on 6 July 2005 under the provisions of
AFI 36-2603:

            Ms. B. J. White-Olson, Panel Chair
            Ms. Patricia Robey, Member
            Mr. Patrick C. Daugherty, Member

The following documentary evidence was considered:

      Exhibit A. DD Form 149, dated 23 Sep 03.
      Exhibit B. Veteran Affairs Medical Records.
      Exhibit C. Letter, AFBCMR Medical Consultant, dated
            13 Apr 05.
      Exhibit D. Letter, AFPC/DPPPR, dated 12 May 05.
      Exhibit E. Letter, AFBCMR, dated 26 May 05, w/atchs.





                 B. J. WHITE-OLSON
                 Panel Chair

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