IN THE CASE OF:	  

		BOARD DATE:	        26 August 2008

		DOCKET NUMBER:  AR20080010906 


THE BOARD CONSIDERED THE FOLLOWING EVIDENCE:

1.  Application for correction of military records (with supporting documents provided, if any).

2.  Military Personnel Records and advisory opinions (if any).


THE APPLICANT'S REQUEST, STATEMENT, AND EVIDENCE:

1.  The applicant requests, in effect, reconsideration of his earlier request for award of the Purple Heart and the Meritorious Unit Commendation (MUC).  He also requests, in effect, award of an Army Commendation Medal or a Meritorious Service Medal or a “bronze star for combat” (presumably he meant a Bronze Star Medal).

2.  The applicant states that he served with the 82d Airborne Division during Operation Desert Storm.  The Division was awarded an MUC.  He was also to be awarded an Army Commendation Medal for volunteering for Operation Desert Storm.  He was exposed to low levels of chemicals.  His unit, the 660th Transportation Company, was awarded an “Exceptional Meritorious Citation.”  They should have gotten an Army Commendation Medal or a Meritorious Service Medal for their actions.  He also has been service-connected for three chronic and unexplained illnesses, for which he was not awarded a Purple Heart.  He got the letter (from the Office of the Secretary of Defense) after he retired.  

3.  The applicant provides a portion of a Department of Veterans Affairs (VA) Rating Decision, dated 25 February 2005; Combat Medical Badge orders, with a notation on the bottom of the orders indicating that a unit of the 82d Airborne Division was awarded the MUC; a letter, dated 5 January 2000, from the Office of the Secretary of Defense; and an Army Achievement Medal award citation.


CONSIDERATION OF EVIDENCE:

1.  Incorporated herein by reference are military records which were summarized in the previous consideration of the applicant's case by the Army Board for Correction of Military Records (ABCMR) in Docket Number AC98-08247 on       26 August 1998.

2.  The applicant provides new evidence in regard to award of the Purple Heart and the MUC that will be considered by the ABCMR.

3.  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.

4.  The applicant enlisted in the Army National Guard on 20 December 1973.  His unit was ordered to active duty on 17 November 1990 for deployment to Operation Desert Shield/Storm.  He arrived in Saudi Arabia on 6 January 1991.  He was assigned/attached to the 660th Transportation Company providing support to the 369th Transportation Battalion and the 3d Battalion, 73d Armor, 82d Airborne Division, as a medic/combat medic.

5.  On 12 April 1991, the applicant was medically evacuated from the theater.  On 14 February 1992, a Physical Evaluation Board found him to be medically unfit by reason of diabetes mellitus, insulin dependent; and spinal stenosis.

6.  On 12 May 1992, the applicant was discharged by reason of physical disability, with severance pay.  Among other awards, his DD Form 214 for the period ending 12 May 1992 showed he was awarded the Southwest Asia Service Medal with 3 bronze service stars and the Army Achievement Medal (1st Oak Leaf Cluster).

7.  The applicant provided a document indicating that Headquarters and Headquarters Company, 3d Brigade, 82d Airborne Division, was awarded the MUC for the period 14 August 1990 through 1 April 1991.  The U. S. Army 

Human Resources Command’s Unit Awards Database shows that this unit was awarded the MUC for the period 27 August 1990 through 31 March 1991 on Department of the Army General Orders Number 27, dated 27 December 1994.

8.  The U. S. Army Human Resources Command’s Unit Awards Database does not show that the 660th Transportation Company was awarded any unit award.

9.  As a result of the ABCMR’s recommendation in Docket Number AC98-08247 on 26 August 1998, the Army Commendation Medal, the Army Good Conduct Medal, the Combat Medical Badge, the Armed Forces Reserve Medal with “M” Device, and the Kuwait Liberation Medal (Saudi Arabia and Kuwait) were added to his DD Form 214 for the period ending 12 May 1992.

10.  The applicant provided a letter from the Office of the Secretary of Defense, dated 5 January 2000.  This letter stated that, based upon orders confirming his assignment to the 660th Transportation Company, he was being informed that he may have been in an area where exposure to a very low level of nerve agents was possible after the weapons destruction at Khamisiyah.

11.  Army Regulation 600-8-22 (Military Awards) provides, in pertinent part, 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 (to include injuries caused by enemy-released chemical, biological, or nuclear agents), the wound must have required treatment by medical personnel, and the medical treatment must have been made a matter of official record.  

12.  Army Regulation 600-8-22 provides, in pertinent part, that the Bronze Star Medal is awarded in time of war for heroism and for meritorious achievement or service.  As with all personal decorations, formal recommendations, approval through the chain of command, and announcement in orders are required.  Recommendations must be made within 2 years of the event or period of service and the award must be made within 3 years.

13.  Army Regulation 600-8-22 provides, in pertinent part, that the Meritorious Service Medal is awarded to members of the Armed Forces of the United States or of a friendly foreign nation who distinguish themselves by outstanding meritorious achievement or service in a noncombat area.  As with all personal decorations, formal recommendations, approval through the chain of command, 
and announcement in orders are required.  Recommendations must be made within 2 years of the event or period of service and the award must be made within 3 years.  

14.  Army Regulation 600-8-22 provides that the Army Commendation Medal may be awarded to any member of the Armed Forces of the United States who distinguishes himself or herself by heroism, meritorious achievement or meritorious service.  As with all personal decorations, formal recommendations, approval through the chain of command, and announcement in orders are required.  Recommendations must be made within 2 years of the event or period of service and the award must be made within 3 years.

15.  Title 10 of the United States Code, section 1130 (10 USC 1130) provides the legal authority for consideration of proposals for decorations not previously submitted in a timely fashion.  It allows, in effect, that upon the request of a Member of Congress the Secretary concerned shall review a proposal for the award or presentation of a decoration (or the upgrading of a decoration), either for an individual or a unit, that is not otherwise authorized to be presented or awarded due to limitations established by law or policy for timely submission of a recommendation for such award or presentation.  Based upon such review, the Secretary shall make a determination as to the merits of approving the award or presentation of the decoration.

DISCUSSION AND CONCLUSIONS:

1.  The applicant contended, in effect, that he should be awarded the MUC because he served with the 82d Airborne Division during Operation Desert Storm and the Division was awarded an MUC.  However, it was not the entire Division that was awarded the MUC.  Only Headquarters and Headquarters Company of the 3d Brigade of the 82d Airborne Division was awarded the MUC.  There is no evidence to show and the applicant does not contend that he was assigned to that company.

2.  There is no evidence of record to show that the 660th Transportation Company was awarded any type of unit award.

3.  The applicant contended he was to be awarded an Army Commendation Medal for volunteering for Operation Desert Storm.  His DD Form 214 for the period ending 12 May 1992 was amended to add the Army Commendation Medal.

4.  The applicant contended that “they” should have gotten an Army Commendation Medal or a Meritorious Service Medal for their actions.  Both of these awards are personal decorations, and the Meritorious Service Medal would not have been authorized for any actions in a combat area.

5.  While the available evidence is insufficient for awarding the applicant another Army Commendation Medal or a Bronze Star Medal or any other personal decoration, this in no way affects his right to pursue his claim for the Army Commendation Medal or the Bronze Star Medal or any other personal decoration by submitting a request through his Member of Congress under the provisions of 10 USC 1130.

6.  There is still insufficient evidence upon which to base awarding the applicant the Purple Heart.  

7.  It is acknowledged that the applicant may have been in an area where exposure to a very low level of nerve agents was possible after the weapons destruction at Khamisiyah, Iraq, and it is acknowledged that his service-connected disabilities might be related to that exposure.  However, those chemical agents were not enemy-released and they were not even released as a result of a friendly fire incident.  They were accidently released when U. S. forces deliberately destroyed the munitions storage area at Khamisayah in March 1991 not knowing that many of the rockets stored there had been loaded for chemical warfare. 

8.  Regrettably, any injuries/medical conditions incurred by the applicant as a result of that accidental exposure does not meet the eligibility criteria for award of the Purple Heart.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

__xx____  __xx____  ___xx___  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

1.  As regards the applicant's request for award of an Army Commendation Medal or a Meritorious Service Medal or a “bronze star for combat,” 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 regards the applicant's request for reconsideration of his request for award of the Purple Heart and the Meritorious Unit Commendation, 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 to amend the decision of the ABCMR set forth in Docket Number AC98-08247 dated 26 August 1998.

3.  The Board wants the applicant and all others concerned to know that this action in no way diminishes the sacrifices made by him in service to our Nation.  The applicant and all Americans should be justifiably proud of his service in arms.



      __________xxxx________
               CHAIRPERSON
      
I certify that herein is recorded the true and complete record of the proceedings of the Army Board for Correction of Military Records in this case.



ABCMR Record of Proceedings (cont)                                         AR20080010906





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ABCMR Record of Proceedings (cont)                                         AR20080010906



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