RECORD OF PROCEEDINGS


	IN THE CASE OF:	  


	BOARD DATE:	  27 March 2008
	DOCKET NUMBER:  AR20070018352 


	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.


Ms. Catherine C. Mitrano

Director

Mr. Mohammed R. Elhaj

Analyst

The following members, a quorum, were present:


Mr. John T. Meixell

Chairperson

Ms. LaVerne M. Douglas

Member

Ms. Jeanette R. McCants

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 that he was exposed to Agent Orange while serving in Vietnam.  His exposure to Agent Orange has resulted in severe health problems and he is now disabled.  He believes he should be awarded the Purple Heart for Agent Orange exposure.

3.  The applicant did not provide any additional documentary evidence in support of his application.

CONSIDERATION OF EVIDENCE:

1.  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 also allows the Army Board for Correction of Military Records (ABCMR) to excuse an applicant’s failure to timely file within the 3-year statute of limitations if the ABCMR determines it would be in the interest of justice to do so.  While it appears the applicant did not file within the time frame provided in the statute of limitations, the ABCMR has elected to conduct a substantive review of this case and, only to the extent relief, if any, is granted, has determined it is in the interest of justice to excuse the applicant’s failure to timely file.  In all other respects, there are insufficient bases to waive the statute of limitations for timely filing.

2.  The applicant's records show that he enlisted in the Regular Army for a period of 3 years on 28 July 1968  He completed basic combat and advanced individual training and was awarded military occupational specialty (MOS) 71B (Clerk Typist).  The highest rank/grade he attained during his military service was specialist five (SP5)/E-5.  He was also awarded MOS 71M (Chaplain's Assistant) on 17 July 1969 and was honorably separated and transferred to the U.S. Army Reserve Control Group (Reinforcement) on 12 June 1971.

3.  The applicant’s records show that he served in the Republic of Vietnam during the period 3 December 1968 to 3 December 1969.  He was assigned to Headquarters and Headquarters Company, 17th Aviation Group.

4.  Item 24 (Decoration, Medals, Badges, Commendations, Citations and Campaign Ribbons Awarded or Authorized) of the applicant's DD Form 214 shows he was awarded the National Defense Service Medal, the Army 

Commendation Medal, the Vietnam Service Medal, the Vietnam Campaign Medal with 1960 Device, two Overseas Service Bars, and the Good Conduct Medal.  Item 24 does not show award of the Purple Heart.

5.  There are no general orders in the applicant's records that show he was awarded the Purple Heart.

6.  Item 40 (Wounds) of the applicant's DA Form 20 (Enlisted Qualification Record) does not show any entries for wounds received.  Item 41 (Awards and Decorations) does not show award of the Purple Heart.

7.  The applicant's name is not shown on the Vietnam Casualty Roster.

8.  The applicant's available medical records do not reveal that he was treated for wounds or injuries during his service in the Republic of Vietnam.

9.  Army Regulation 600-8-22 (Military Awards) provides, in pertinent part, that the Purple Heart is awarded for a wound sustained while in action against an enemy or 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 military medical personnel, and the medical treatment must have been made a matter of official record.  It also specifically provides that injuries or wounds caused by chemical agents not released by the enemy do not qualify for award of the Purple Heart.  This regulation further provides that there are no time limitations for requests for award of the Purple Heart. 

10.  Title 38 CFR §3.307 and Public Law 102-4, dated 6 February 1991, also known as the cited as the "Agent Orange Act of 1991," provides that a disease associated with exposure to certain herbicide agents – meaning a chemical in an herbicide used in support of the United States and allied military operations in the Republic of Vietnam during the period beginning on January 9, 1962, and ending on May 7, 1975, specifically: 2,4-D; 2,4,5-T and its contaminant TCDD; cacodylic acid; and picloram – will be considered to have been incurred in or aggravated by service even though there is no evidence of such disease during the period of service.  A veteran who, during active military, naval, or air service, served in the Republic of Vietnam during the period beginning on January 9, 1962, and ending on May 7, 1975, shall be presumed to have been exposed during such service to an herbicide agent, unless there is affirmative evidence to establish that the veteran was not exposed to any such agent during that service.


11.  Review of the applicant's records indicates entitlement to additional awards that are not shown on his DD Form 214.

12.  Headquarters, U.S. Army Training Center and Fort Leonard Wood, Fort Leonard Wood, Missouri, Special Orders Number 309, dated 4 November 1968, show the applicant was awarded the Expert Marksmanship Qualification Badge with Rifle Bar (M-16) on 31 October 1968.

13.  Headquarters, 1st Infantry Division Forward, Special Orders Number 112, dated 5 August 1970, show the applicant was awarded the Sharpshooter Marksmanship Qualification Badge with Rifle Bar (M-14) on 17 June 1970.

14.  Department of the Army Pamphlet 672-3 (Unit Citation and Campaign Participation Credit Register) shows the applicant is entitled to award of the Republic of Vietnam Gallantry Cross with Palm Unit Citation based on Department of the Army General Orders Number 8, dated 1974.

15.  Item 24 (Decoration, Medals, Badges, Commendations, Citations and Campaign Ribbons Awarded or Authorized) of the applicant's DD Form 214 shows he was awarded the Vietnam Service Medal.

16.  Appendix B of Army Regulation 600-8-22 shows that the applicant participated in the Vietnam Counteroffensive, Phase VI, the TET 69 Counteroffensive, the Vietnam Summer-Fall 1969, and the Vietnam Winter-Spring 1970 campaigns during his tour of duty in the Republic of Vietnam.  This same regulation states that a bronze service star will be awarded for wear on the Vietnam Service Medal for participation in each campaign.

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends that he is entitled to award of the Purple Heart for being exposed to Agent Orange while serving in the Republic of Vietnam.  The Purple Heart is awarded for a wound sustained while in action against an enemy or as a result of hostile action.  Exposure to Agent Orange and the contracting of a presumptive disease attributed to Agent Orange does not qualify for award of the Purple Heart.

2.  Evidence shows that the applicant’s records contain an 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 2 of the BOARD DETERMINATION/RECOMMENDATION section below.

3.  General Orders show the applicant was awarded the Sharpshooter Marksmanship Qualification Badge with Rifle Bar (M-14) and the Expert Marksmanship Qualification Badge with Rifle Bar (M-16).  Therefore, he is entitled to correction of his records to show these badges.

4.  General Orders show the applicant was awarded the Republic of Vietnam Gallantry Cross with Palm Unit Citation which is not shown on his records.  Therefore, he is entitled to correction of his records to show this award. 

5.  Evidence of record shows that the applicant was awarded the Vietnam Service Medal.  Additionally, records show the applicant participated in four campaigns while serving in the Republic of Vietnam.  Therefore, he is entitled to awards of four service stars to be affixed to the Vietnam Service Medal.

6.  The Department of Veterans Affairs (DVA) has stated that approximately 20 million gallons of herbicides were used in Vietnam between 1962 and 1971 to remove unwanted plant life and leaves which otherwise provided cover for enemy forces during the Vietnam Conflict.  Shortly following their military service in Vietnam, some veterans reported a variety of health problems and concerns which some of them attributed to exposure to Agent Orange or other herbicides.  The DVA has developed a comprehensive program to respond to these medical problems and concerns.  The principal elements of this program include quality health care services, disability compensation for veterans with service-connected illnesses, scientific research and outreach and education.  The applicant is urged to contact his local DVA office for enrollment in the Agent Orange program.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

__jtm___  __lmd___  __jrm___  DENY APPLICATION


BOARD DETERMINATION/RECOMMENDATION:

1.  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 to award the Purple Heart.

2.  The Board determined that an administrative error in the records of the individual concerned should be corrected.  Therefore, the Board requests that the CMSD-St. Louis administratively correct the records of the individual concerned by showing award of the Republic of Vietnam Gallantry Cross with Palm Unit Citation, the Sharpshooter Marksmanship Qualification Badge with Rifle Bar    (M-14), the Expert Marksmanship Qualification Badge with Rifle Bar (M-16), and four bronze service stars to be affixed to his already-awarded Vietnam Service Medal.

3.  The Board sympathizes with the applicant.  The denial of his request for award of the Purple Heart in no way diminishes his valuable service to our nation.



							John T. Meixell
______________________
          CHAIRPERSON




INDEX

CASE ID
AR
SUFFIX

RECON
YYYYMMDD
DATE BOARDED
YYYYMMDD
TYPE OF DISCHARGE
(HD, GD, UOTHC, UD, BCD, DD, UNCHAR)
DATE OF DISCHARGE
YYYYMMDD
DISCHARGE AUTHORITY
AR . . . . .  
DISCHARGE REASON

BOARD DECISION
(NC, GRANT , DENY, GRANT PLUS)
REVIEW AUTHORITY

ISSUES         1.

2.

3.

4.

5.

6.