MEMORANDUM OF CONSIDERATION


         IN THE CASE OF:
        


         BOARD DATE: 17 September 2002
         DOCKET NUMBER: AR2002070907

         I certify that hereinafter is recorded the record of consideration of the Army Board for Correction of Military Records in the case of the above-named individual.

Mr. Carl W. S. Chun		Director
Mr. Paul A. Petty		Analyst

The following members, a quorum, were present:

Mr. Elzey J. Arledge		Chairperson
Ms. Karen A. Heinz		Member
Mr. Thomas B. Redfern		Member

         The Board, established pursuant to authority contained in 10 U.S.C. 1552, convened at the call of the Chairperson on the above date. In accordance with Army Regulation 15-185, the application and the available military records pertinent to the corrective action requested were reviewed to determine whether to authorize a formal hearing, recommend that the records be corrected without a formal hearing, or to deny the application without a formal hearing if it is determined that insufficient relevant evidence has been presented to demonstrate the existence of probable material error or injustice.

         The applicant requests correction of military records as stated in the application to the Board and as restated herein.

         The Board considered the following evidence:

         Exhibit A - Application for correction of military
records
         Exhibit B - Military Personnel Records (including
         advisory opinion, if any)

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APPLICANT REQUESTS: That he be awarded a Purple Heart.

APPLICANT STATES: That he believes he is eligible for award of the Purple Heart due to injuries he sustained in Operation Provide Comfort in Northern Iraq where he served from April to August 1991. Since then he has been diagnosed with asthma, bursitis, major depression, and degenerative joint disease. He contends that the injuries were "caused by enemy released chemical, biological, or nuclear agent."

He submits copies of his Medical Evaluation Board (MEB) Proceedings, Physical Evaluation Board (PEB) Proceedings, related medical records, discharge orders, and DD Forms 214 (Certificate of Release or Discharge From Active Duty). He provides a copy of a 22 April 1994, Department of Veterans Affairs (VA) rating decision in which he was denied VA compensation for bilateral knee pain and hand pain and was granted less than 10 percent compensation for bursitis left hip and left shoulder. He provides a copy of a 15 March 2000, VA rating decision in which he was granted a combined 70 percent VA compensation for service connected disabilities: bronchial asthma, bursitis in left shoulder and left hip, degenerative joint disease in the right knee, and major depression.

EVIDENCE OF RECORD: The applicant's military records show:

That he was enlisted in the Regular Army from 27 July 1989 through 30 April 1993. He served as an airborne heavy anti-armor weapons infantryman. He was honorably released from active duty as a specialist, pay grade E-4, and transferred to the U. S. Army Reserve (USAR) Control Group (Reinforcement), Individual Ready Reserve (IRR). He was authorized early release from active duty to further his education. His DD Form 214 for this period of service shows that he served in Southwest Asia from 27 April to 20 July 1991.

On 20 May 1997, he again enlisted in the Regular Army as an airborne heavy anti-armor weapons infantryman. On 19 March 1999, at Womack Army Medical Center (WAMC), Fort Bragg, North Carolina, he was given a permanent physical profile for asthma, right knee pain, and depression. He was restricted from running, jumping, marching, or wearing backpack or load carrying equipment; no exposure to dust, humidity or vehicle exhaust; no airborne operations; no assignment away from psychiatrist level care; and no access to weapons.

On 8 March 1999, he was reviewed by a MEB at WAMC. The MEB found that he had exercise induced asthma, major depression, and right osteochondral fracture versus bone contusion with chronic knee pain originating from hyperextension of his right knee upon executing a parachute landing fall which


he experienced in an airborne exercise on 5 May 1998. The applicant expressed his desire to not continue on active duty and agreed with the findings and recommendation of the MEB. The MEB recommended that the applicant be reviewed by a PEB.

On or about 30 April 1998, a PEB was conducted at Walter Reed Medical Center, Washington, D.C. The PEB determined that the applicant was unfit for continued military service due to exercise induced asthma and right knee pain with possible osteochondral fracture or bone contusion which were incurred in the line of duty (LOD). With reference to the right knee, the PEB noted that the "service member was injured by an instrumentality of war, a military parachute, during a period of war, May 1998." He was given 30 percent and 10 percent disability ratings respectively, for these two conditions, for a total of 40 percent disability. The PEB did not find the diagnosis of major depression unfitting for military duty and it was not rated as a disability.

On 15 June 1999, the applicant was honorably separated from active duty and placed on the Temporary Disability Retired List as a specialist, pay grade E-4, by reason of temporary disability in accordance with Army Regulation 635-40, paragraph 4-24b(2). He was authorized 40 percent disability. His separation orders 133-0277, issued by XVIII Airborne Corps and Fort Bragg, dated 13 May 1999, state that, "Disability is based on injury or disease received in LOD as a direct result of armed conflict or caused by an instrumentality of war and incurred in the LOD during a war period as defined by law. Disability resulted from a combat related injury as defined in 26 USC 104 (Title 26, United States Code, section 104)." Title 26, US Code, section 104 (Compensation for Injuries and Sickness), states, in pertinent part, "For the purposes of this subsection, the term 'combat-related injury' means personal injury or sickness which is caused by an instrumentality of war."

His last duty station was Fort Bragg, North Carolina. He was retired with 5 years and 10 months active service, and 4 years, 2 months, and 26 days inactive service.

According to Army Regulation 600-8-22 (Military Awards), award of the
Purple Heart is made to soldiers wounded, injured, or killed from an outside force or agent as a result of an action against an enemy or an act of any such enemy. Wounds or injuries as a result of accident, to include explosive, aircraft, vehicular and other accidental wounds not caused by enemy action do not qualify for award of the Purple Heart. Examples of enemy-related injuries to a soldier which can justify award of a Purple Heart are, "injury caused by enemy released chemical, biological, or nuclear agent."



The U. S. Total Army Personnel Command, Military Awards Branch, provided an advisory opinion: "(The) applicant is claiming entitlement to award of the Purple Heart for injuries caused by enemy released chemical, biological, or nuclear agents while serving in Southwest Asia during the Persian Gulf War (Operation Desert Storm). As evidence to support his claim, the applicant provides documentation from the Department of Veterans Affairs (VA) showing the service connected medical conditions for which he is being compensated. There is no documented medical evidence linking exposure to low levels of chemical agents and those illnesses which are categorized as being Persian Gulf related. The medical conditions for which the applicant is receiving VA disability compensation (bronchial asthma, bursitis-left shoulder and left hip, degenerative joint disease right knee) occurred during military service. However, the applicant's medical conditions are not the result of actions by an enemy of the United States and he is not entitled to award of the Purple Heart." The applicant was provided a copy of this opinion by mail on 31 May 2002. As of the date of this Board, he has not submitted any rebuttal.

DISCUSSION: Considering all the evidence, allegations, and information presented by the applicant, together with the evidence of record, applicable law and regulations, and advisory opinion, it is concluded:

1. The applicant's service connected medical conditions are not the result of actions by an enemy of the United States and he is not entitled to award of the Purple Heart. There is no evidence that his service connected medical conditions were caused by enemy released chemical, biological, or nuclear agent as he contends.

2. His right knee was injured on 5 May 1998 by hyperextension of his right knee upon executing a parachute landing fall during an airborne exercise. On his PEB, it was noted that this injury was caused by a "military parachute" which was termed an instrumentality of war. Title 26, US Code, section 104, states, "For the purposes of this subsection (compensation for injuries), the term 'combat-related injury' means personal injury or sickness which is caused by an instrumentality of war." Thus the applicant's separation orders state that he was injured in the LOD as a direct result of armed conflict or ("or" means one or the other applies) caused by an instrumentality of war (the "military parachute"). The latter condition applies (injury caused by an instrumentality of war - the "military parachute") and the former condition does not apply (as a direct result of armed conflict) as the applicant was not injured as a result of armed conflict or actions by an enemy of the United States.





3. In view of the foregoing, there is no basis for granting the applicant's request.

DETERMINATION: The applicant has failed to submit sufficient relevant evidence to demonstrate the existence of probable error or injustice.

BOARD VOTE:

________ ________ ________ GRANT

________ ________ ________ GRANT FORMAL HEARING

__ea___ ___kh____ __tr____ DENY APPLICATION




                           Carl W. S. Chun
                           Director, Army Board for Correction
                                             of Military Records

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INDEX

CASE ID	AR2002070907
SUFFIX
RECON
DATE BOARDED	20020917
TYPE OF DISCHARGE
DATE OF DISCHARGE
DISCHARGE AUTHORITY
DISCHARGE REASON
BOARD DECISION	DENY
REVIEW AUTHORITY
ISSUES 1. 107	PURPLE HEART
2.
3.
4.
5.
6.