IN THE CASE OF:	  

		BOARD DATE:	  10 February 2009

		DOCKET NUMBER:  AR20080019618 


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, that her deceased husband, a former service member (FSM), be awarded the Purple Heart (PH).

2.  The applicant states, in effect, the FSM was wounded and eventually killed due to exposure to Agent Orange while serving in the Republic of Vietnam (RVN).  She states that Agent Orange has been classified as a biological weapon that can be classified as "friendly fire," and that her husband was exposed to Agent Orange while it was being used as a biological weapon by this country. She further states that the FSM died due to his exposure to Agent Orange and therefore, she believes he should be awarded the PH for this fatal wound.  

3.  The applicant provides the following documents in support of her application:  Self-Authored Statement; Army Review Boards Agency (ARBA) Letter, dated 
25 August 2008; Certificate of Death; Certificate of Marriage; United States Army Human Resources Command (HRC) Letter, dated 31 January 2008; Certificates of Release or Discharge From Active Duty (DD Forms 214); Department of Veterans Affairs (VA) Rating Decisions, dated 25 May 2006 and 17 December 2007; Bronze Star Medal (BSM) Citation; Personnel Qualification Record 
(DA Form 2-1); and Photographs.

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 FSM's record shows he was honorably released from active duty (REFRAD), in the rank of sergeant major (SGM)), for the purpose of length of service retirement on 31 March 1983 after completing a total of 30 years and 
23 days of active military service.  

3.  The FSM's Enlisted Qualification Record (DA Form 20) shows he served in the RVN from 19 August 1967 through 5 August 1968 and that during this tour of duty, he was assigned to the United States Military Assistance Command, Vietnam (USMACV) and performed duties in MOS 76K as a supply sergeant and training director. 

4.  Item 40 (Wounds) of the FSM's DA Form 20 is blank and the PH is not included in the list of awards contained in Item 41 (Awards and Decorations).  Item 48 (Date of Audit) confirms the FSM last audited his DA Form 20 on 2 May 1973.  

5.  The FSM's record is void of any medical treatment records or other documents that indicate he was ever wounded in action or treated for a combat related wound or injury while serving on active duty.  

6.  The applicant provides VA rating decisions, dated 25 May 2006 and 
17 December 2007, which granted the FSM service connection for the following disabilities related to herbicide exposure with the percentage (%) indicated:  coronary artery disease, 100 %; high blood pressure, 0%; diabetic retinopathy and pseudophakic in both eyes 30%; and onychomycosis of both feet, 0%; and for his cause of death.  

7.  The applicant provides a letter from the Chief, Military Awards Branch, HRC that was addressed to Member of Congress, dated 31 January 2008.  This letter shows that applicant requested that the FSM be awarded the PH.  This HRC awards official indicated that it was unable to determine the FSM's eligibility for award of the PH.  The HRC official further indicated that under friendly fire provisions of the law, members of the Army who are killed or wounded in action by weapons fire while engaged in armed conflict, other than as the result of an act of an enemy of the United States (friendly fire), in the same manner as a member who is killed or wounded in action as a result of an act of an enemy may be awarded the PH.  However, in order to qualify for the PH under this provision of the law, the wounds or injuries must have been incurred during the "heat of battle" and must have required treatment by a medical personnel and been made a matter of official record.    

8.  Army Regulation 600-8-22 (Military Awards) prescribes Army policy and criteria concerning individual military awards.  Paragraph 2-8 contains the regulatory guidance pertaining to awarding the PH and states, in pertinent part, that in order to support awarding a member the PH, it is necessary to establish that the wound for which the award is being made was received as a direct result of or was caused by enemy action; that the wound required treatment by medical personnel; and a record of this medical treatment must have been made a matter of official record. 

9.  The awards regulation stipulates that members killed or wounded in action other than as a result of an act of an enemy (friendly fire) may be awarded the PH if they are killed or wounded in action by weapons fire while directly engaged in armed conflict (heat of battle) in the same manner as a member who is killed or wounded in action as a result of an act of an enemy of the United States.  In Paragraph 2-8h there are examples of injuries or wounds which clearly do not justify award of the PH.  Included in these examples are chemical, biological, or nuclear agents not released by the enemy and diseases not directly caused by enemy agents.  

DISCUSSION AND CONCLUSIONS:

1.  The applicant's contention that her late husband should be awarded the PH based on his exposure to Agent Orange was carefully considered.  However, there is insufficient evidence to support this claim.  

2.  By law and regulation, in order to support award of the PH there must be evidence confirming that the wound for which the award is being made was received as a result of enemy action, that it was treated by military medical personnel, and a record of this treatment must have been made a matter of official record.  Further, in order to support award of the PH based on friendly fire, the wound must have been received in the heat of battle, it must have required treatment by military medical personnel, and a record of this treatment must have been made a matter of official record.  The regulation also stipulates that 
chemical, biological, or nuclear agents not released by the enemy and diseases not directly caused by enemy agents do not justify award of the PH.  As a result, Agent Orange exposure does not support award of the PH under the existing law and regulation.   

3.  The FSM's record is void of any indication that he was ever wounded in action.  Item 40 of his DA Form 20 is blank, which indicates he was never wounded in action, and the PH is not included in the list of awards contained in Item 41.  The FSM last audited his DA Form 20 in May 1973, almost 5 years after he departed from the RVN.  Further, the FSM's name is not included on the Vietnam Casualty Roster, the official DA RVN battle casualty list.  

4.  Finally, there is no indication that the FSM ever claimed entitlement to the PH in the almost 15 years he continued to serve on active duty in the Army after his return from the RVN, or at any time prior to his death in 2007.  As a result, the regulatory criteria necessary to support award of the PH has not been satisfied in this case.  Therefore, it would not be appropriate or serve the interest of all those who served in the RVN and who faced similar circumstances to grant the requested relief in this case.  

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

6.  The applicant and all others concerned should know that this action related to award of the PH in no way diminishes the sacrifices made by the FSM in service to our Nation.  The applicant and all Americans should be justifiably proud of the FSM's service in arms.  

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

___x____  ___x____  ___x____  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

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.




      _______ _x   _______   ___
               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)                                         AR20080019618



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ABCMR Record of Proceedings (cont)                                         AR20080019618


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