IN THE CASE OF:	

		BOARD DATE:	  29 April 2010

		DOCKET NUMBER:  AR20090017634 


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 award of the Purple Heart for an injury received in Iraq during Operation Desert Storm.

2.  The applicant states that he was diagnosed in 2001 with Gulf War Syndrome.

3.  The applicant provides, in support of his application, a copy of a letter from a psychiatrist with the Department of Veterans Affairs (VA), dated 10 July 2007.

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.  On 9 September 1986, the applicant enlisted in the Regular Army.  He completed the training requirements and he was awarded military occupational specialty (MOS) 19E (Armor Crewman).  He was subsequently assigned to Fort Carson, Colorado.

3.  On 9 March 1988, the applicant departed Fort Carson for duty in the Federal Republic of Germany.  Soon after his arrival he was given transitional training for award of MOS 19K (Abrams Armor Crewman).

4.  Item 5 (Overseas Service) of the applicant's DA Form 2-1 (Personnel Qualification Record -Part II) shows he served in Saudi Arabia from 
9 January to 22 May 1991.

5.  On 19 July 1991, the applicant was honorably released from active duty due to expiration term of service.  He had attained the rank of specialist, pay grade 
E-4, and had completed 4 years, 10 months, and 11 days of creditable active service.

6.  Item 13 (Decorations, Medals, Badges, citations and Campaign Ribbons Awarded or Authorized) of the applicant's DD Form 214, as amended, lists his awards as the Army Service Ribbon, National Defense Service Medal, Army Achievement Medal with three Oak Leaf Clusters, Army Commendation Medal, Overseas Service Ribbon, Southwest Asia Service Medal with three bronze service stars, and the Kuwait Liberation Medal.

7.  The applicant's service medical records are not available for review.

8.  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, the wound must have required treatment, and the medical treatment must have been made a matter of official record.

9.  In a letter provided by the applicant, dated 10 July 2007, a psychiatrist with the VA stated the applicant had a number of diagnoses and symptoms that contributed to his disability.  During the applicant's service in the Gulf War, he was exposed, without protective gear, to smoke and debris from oil well fires.  Additionally, the vaccinations and nerve agent antidote medications that he received have been implicated in subsequent illnesses:  

   a.  The applicant has chronic fatigue syndrome, which is service connected and rated by the VA at 100 percent disabling.
   
   b.  He also has fibromyalgia and neurological consequences of toxin exposure in Iraq and Kuwait.  A magnetic resonance spectroscopy showed signs of demyelization and an elevation of lactate and glutamate (toxic to the brain) in the thalamus.  This condition is thought to be a finding of Gulf War Syndrome.  
   
   c.  A neuropsychological testing indicated a chronic working memory, fine motor speed and dexterity that are below expectations.

10.  The psychiatrist further stated that in 2002 the applicant was diagnosed with depression, recurrent, severe, without psychotic features.  His symptoms included anxiety, restlessness, and confrontational, angry, paranoid, and tenacious feelings.  After a manic episode his diagnosis was changed to bipolar.  The applicant's physical symptoms are quite disabling as well.  He has chronic gastrointestinal distress, recurring headaches, loss of coordination and balance, sleep disturbance, severe chronic fatigue, sinusitis, and asthma.  The psychiatrist opines that the applicant will never be capable of working in any capacity now or at any time in the future.

11.  A Wikipedia (free encyclopedia) entry concerning the Kuwaiti oil fires in 1991, states that by the summer of 1990, Kuwait's high levels of oil production had become a serious point of contention with Iraq.  It is speculated that Iraq's motive for invading Kuwait was to punish the ruling family for not stopping their overproduction of oil.  Hence, Iraq's reason for burning the wells.

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends that he suffers from Gulf War Syndrome as a result of his service in Kuwait and Iraq during Operation Desert Storm, and should be awarded the Purple Heart.

2.  There are no available general orders awarding the applicant the Purple Heart.  

3.  The burning of Kuwaiti oil wells is not considered to have been a hostile act against enemy Soldiers; but rather, was a means of punishing the ruling family of Kuwait for their overproduction of oil.  As such, any injuries sustained as a result of exposure to toxins from these fires do not qualify for award of the Purple Heart. 

4.  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 the aforementioned requirement.
5.  In view of the foregoing, the applicant's request should be denied.

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)                                         AR20090017634



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ABCMR Record of Proceedings (cont)                                         AR20090017634



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