RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:         25 JANUARY 2005
      DOCKET NUMBER:  AR20040000111


      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             |
|     |Mr. Kenneth H. Aucock             |     |Analyst              |

      The following members, a quorum, were present:

|     |Ms. Kathleen Newman               |     |Chairperson          |
|     |Mr. James Anderholm               |     |Member               |
|     |Ms. LaVerne Douglas               |     |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 for wounds received
during the Persian Gulf War.

2.  The applicant states that he was exposed to chemical warfare agents
during the Persian Gulf War as verified by the Department of Defense (DOD)
letter [that he submits with his application]. The DOD letter was issued
subsequent to his medical retirement and Department of Veterans Affairs
(VA) findings.  According to Army Regulation 600-8-22 [Military Awards],
paragraph 2-8b(6)(b) he is eligible for award of the Purple Heart.  The
delayed nature of the injuries (secondary to Sarin nerve gas exposure) is
typical of low level Sarin exposure.

3.  The applicant provides a copy of a 5 December 2000 DOD letter from the
Special Assistant to the Secretary of Defense for Gulf War Illnesses,
Medical Readiness, and Medical Deployments.

CONSIDERATION OF EVIDENCE:

1.  The applicant is requesting correction of an alleged error or injustice
which occurred on 6 November 1996.  The application submitted in this case
is dated 11 April 2004.

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.  The applicant entered on active duty on 7 July 1976 and remained on
continuous active duty until his retirement in 1996, attaining the rank of
master sergeant.  He was trained as a medical specialist and then as a
practical nurse. He served in locations throughout the world, to include
Fort Leonard Wood, Missouri, Fort Sam Houston, Texas, Germany, the Presidio
of San Francisco, and Fort Bragg, North Carolina.

4.  The applicant’s Personnel Qualification Record shows that he served in
Saudi Arabia from 4 October 1990 to 20 April 1991.  He was awarded the
Bronze Star Medal for meritorious achievement for the period 17 January
1991 to 15 March 1991.
5.  In March 1992 the applicant was diagnosed with diabetes mellitus after
he presented with polyuria, polydipsia, polyphagia, and weakness.   He was
treated initially as an outpatient with oral hypoglycemic agents until
April 1993 when he was begun on split insulin therapy.  He went before a
Physical Evaluation Board (PEB) in December 1993 and again in July 1994 and
was found fit for duty.

6.  On 31 May 1996 a PEB determined that the applicant was physically unfit
for duty because of diabetes mellitus and bilateral peripheral neuropathy.
The PEB recommended that the applicant be permanently retired with a
disability rating of 40 percent.

7.  The applicant was retired because of his permanent disability on 6
November 1996.  He had over 20 years of active service.  Neither his DD
Form 214 nor his Personnel Qualification Record show award of the Purple
Heart.

8.  On 1 May 1997 the VA informed the applicant that he was granted service
connected disability for diabetes, 20 percent; inflammation of external
popliteal nerves, 20 percent; inflammation of median nerves, 20 percent;
knee condition,   10 percent; gout, 0 percent; and residuals of gall
bladder removal, 0 percent; for a combined rating of 60 percent.

9.  On 5 December 2000 the Special Assistant to the Secretary of Defense
for Gulf War Illnesses, Medical Readiness, and Military Deployments
informed the applicant that he had notified him in 1997 that if he was with
his unit between   10-13 March 1991, he may have been exposed to a very low
level of chemical agent resulting from the demolition of munitions at
Khamisiyah, Iraq.  He stated that if he was with his unit at that time, he
may have been exposed to very low levels of chemical agent for a brief
period of time (less than 3 days) after the demolition, and based on
current medical evidence and ongoing research, there was no indication of
any long-term health effects that would be expected from that exposure.  He
was informed that if he had specific health concerns, he should seek
medical assistance from the programs established for Gulf War veterans.

10.  Army Regulation 600-8-22 provides that the Purple Heart is awarded for
a wound 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.

11.  The paragraph cited by the applicant in his request states,
“Individuals wounded or killed as a result of ‘friendly fire’ in the ‘heat
of battle’ will be awarded the Purple Heart as long as the ‘friendly’
projectile or agent was released with the full intent of inflicting damage
or destroying enemy troops or equipment.”

DISCUSSION AND CONCLUSIONS:

1.  Notwithstanding the applicant’s contention and the DOD letter that he
submits with his request, there is no evidence that he was wounded in
action, either as a result of hostile action by the enemy, or as a result
of agents whose release was caused by friendly forces, as the applicant
depicts in the above cited paragraph.  There is no injury, no treatment of
an injury, and no record of any treatment.
2.  As depicted in the DOD letter, he “may” have been with his unit at the
time of the demolition, and “may” have been exposed to very low levels of
chemical agent for a brief period of time.  There is no evidence, and the
applicant has not furnished any that he was, in fact, exposed to any
chemical agents.  Even so, any such exposure is not tantamount to meeting
the strict criteria for award of the Purple Heart.

3.  There is insufficient evidence to show that the applicant was wounded
in action.  Consequently, he is not entitled to award of the Purple Heart.


4.  Records show the applicant should have discovered the alleged error or
injustice now under consideration on 6 November 1996; therefore, the time
for the applicant to file a request for correction of any error or
injustice expired on     5 November 1999.  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.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF

________  ________  ________  GRANT PARTIAL RELIEF

________  ________  ________  GRANT FORMAL HEARING

___KN __  ___JA___  ___LD  __  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.




                                  ____Kathleen Newman_____
                                            CHAIRPERSON



                                    INDEX

|CASE ID                 |AR20040000111                           |
|SUFFIX                  |                                        |
|RECON                   |YYYYMMDD                                |
|DATE BOARDED            |20050125                                |
|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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