RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:           03 AUGUST 2004
      DOCKET NUMBER:  AR2004100731


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

|     |Mr. Carl W. S. Chun               |     |Director             |
|     |Ms. Deborah L. Brantley           |     |Senior Analyst       |

      The following members, a quorum, were present:

|     |Mr. Fred Eichorn                  |     |Chairperson          |
|     |Mr. John Meixell                  |     |Member               |
|     |Ms. Gail Wire                     |     |Member               |

      The Board considered the following evidence:

      Exhibit A - Application for correction of military records.

      Exhibit B - Military Personnel Records (including advisory opinion,
if any).

THE APPLICANT'S REQUEST, STATEMENT, AND EVIDENCE:

1.  The applicant requests award of the Purple Heart.

2.  The applicant states he was exposed to chemicals in Khamisaya (Southern
Iraq) and surrounding areas and that as a 77W (water purification/treatment
specialist) he was exposed to biological and chemical agents during the
Persian Gulf War.

3.  The applicant provides no evidence in support of his request, but does
note information is contained in his Department of Veterans Affairs record.

CONSIDERATION OF EVIDENCE:

1.  The applicant is requesting correction of an alleged error or injustice
which occurred on 15 December 1995.  The application submitted in this case
is dated
20 September 2003.

2.  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 allows the Army
Board for Correction of Military Records (ABCMR) to excuse failure to file
within the 3-year statute of limitation if the ABCMR determines that it
would be in the interest of justice to do so.  In this case, the ABCMR will
conduct a review of the merits of the case to determine if it would be in
the interest of justice to excuse the applicant’s failure to timely file.

3.  Records available to the Board indicate that the applicant served on
active duty between 10 August 1988 and 15 December 1995.  During his
military service he was trained and performed duties as a water treatment
specialist.

4.  The applicant served in Southwest Asia during Operation Desert
Shield/Storm between 25 December 1990 and 15 July 1991.  He was awarded the
Southwest Asia Service Medal and one Kuwait Liberation Medal.

5.  There were no service medical records available to the Board or
provided by the applicant.

6.  Army Regulation 600-8-22 provides, in pertinent part, that the Purple
Heart is awarded for wounds sustained 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 a medical
officer, and the medical treatment must have been made a matter of official
record.  The regulation notes that injuries cause by enemy released
chemical, biological, or nuclear agents are the basis for an award of the
Purple Heart, while chemical, biological, or nuclear agents not released by
the enemy, are not a basis for an award of the Purple Heart.

7.  The Kuwait Liberation Medal (SA) awarded by the Kingdom of Saudi Arabia
was approved on 3 January 1992 and is awarded to those members who
participated in the Persian Gulf War from 17 January to 28 February 1991.
The Secretary of Defense accepted an offer by the Government of Kuwait to
award the Kuwait Liberation Medal (K) to members of the Armed Forces of the
United States who participated in operation Desert Shield and Operation
Desert Storm between 2 August 1990 and 31 August 1993.  The applicant’s
separation document reflects entitlement to one Kuwait Liberation Medal.

DISCUSSION AND CONCLUSIONS:

1.  There is no evidence, and the applicant has not provided any, that he
suffered from injuries resulting from chemical, biological, or nuclear
agents released by the enemy during the Persian Gulf War, which required
treatment by a medical officer and were made a matter of official record
while deployed in support of the Gulf War.

2.  The fact that the Department of Veterans Affairs may have granted the
applicant a service connected disability rating for issues they now
attribute to conditions of the Gulf War is not a basis for an award of the
Purple Heart.  To accept such ratings as the sole basis for an award of the
Purple Heart would in effect, mean that every Gulf War veteran now
receiving disability benefits attributed to service in Southwest Asia would
be entitled to an award of the Purple Heart.  Such an argument could then
be extended to all Soldiers who, in the years following their release from
military service, are subsequently awarded a service connected disability
rating which the Department of Veterans Affairs has attributed to an
individuals war time service.  Clearly that is outside the scope of the
intent of the Purple Heart, which is to recognize military members who are
wounded or injured in the heat of battle and require immediate medical
treatment by a medical officer.

3.  In order to justify correction of a military record the applicant must
show, or it must otherwise satisfactorily appear, that the record is in
error or unjust.  The applicant has failed to submit evidence that would
satisfy that requirement.

4.  Records show the applicant should have discovered the alleged error or
injustice now under consideration on 15 December 1995; therefore, the time
for the applicant to file a request for correction of any error or
injustice expired on
14 December 1998.  However, the applicant did not file within the 3-year
statute of limitations and has not provided a compelling explanation or
evidence to show that it would be in the interest of justice to excuse
failure to timely file in this case.

5.  Evidence shows that the applicant’s records contain administrative
error which does not require action by the Board.  Therefore,
administrative correction of the applicant's records will be accomplished
by the Case Management Support Division (CMSD), St. Louis, Missouri, as
outlined by the Board in paragraph 3 of the BOARD
DETERMINATION/RECOMMENDATION section below.

BOARD VOTE:

________  ________  ________  GRANT RELIEF

________  ________  ________  GRANT FORMAL HEARING

___FE __  ___JM___  ___GW  _  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

1.  The Board determined that 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.

2.  As a result, the Board further determined that there is no evidence
provided which shows that it would be in the interest of justice to excuse
the applicant's failure to timely file this application within the 3-year
statute of limitations prescribed by law.  Therefore, there is insufficient
basis to waive the statute of limitations for timely filing or for
correction of the records of the individual concerned.



3.  The Board determined that administrative error in the records of the
individual should be corrected.  Therefore, the Board requests that the
CMSD-St. Louis administratively correct the records of the individual
concerned to show he is entitled to two awards of the Kuwait Liberation
Medal, one awarded by the Kingdom of Saudi Arabia and one awarded by the
Government of Kuwait.



            _____Fred Eichorn______
                    CHAIRPERSON

                                    INDEX

|CASE ID                 |AR2004100731                            |
|SUFFIX                  |                                        |
|RECON                   |YYYYMMDD                                |
|DATE BOARDED            |20040803                                |
|TYPE OF DISCHARGE       |(HD, GD, UOTHC, UD, BCD, DD, UNCHAR)    |
|DATE OF DISCHARGE       |YYYYMMDD                                |
|DISCHARGE AUTHORITY     |AR . . . . .                            |
|DISCHARGE REASON        |                                        |
|BOARD DECISION          |DENY                                    |
|REVIEW AUTHORITY        |                                        |
|ISSUES         1.       |107.00                                  |
|2.                      |                                        |
|3.                      |                                        |
|4.                      |                                        |
|5.                      |                                        |
|6.                      |                                        |


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