BOARD DATE:	  21 September 2010

		DOCKET NUMBER:  AR20100007357 


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, Republic of Korea (ROK) Presidential Unit Citation (PUC), and Military Outstanding Volunteer Service Medal.  He also requests that correction be made to his DA Form 199 (Physical Evaluation Board (PEB) Proceedings), dated 1978.

2.  The applicant states he is suffering with lymphocytic/chronic lymphocytic leukemia.  This form of cancer is related to Agent Orange and has a direct bearing on his request for award of the Purple Heart.  He contends Agent Orange was used as a weapon and should be viewed as such and resulting casualties should be classified as friendly fire.  As of December 2009, the Disabled American Veterans and the Department of Veterans Affairs (VA) are processing his request for entitlement to service connection for this cancer.  He points out that he was retired for medical reasons and placed on the Permanent Disability Retired List with a 100-percent service-connected disability and he received compensation under the Agent Orange Veteran Payment Program in February 1996.

3.  The applicant states that he understands what has been said in previous correspondence from the Military Awards Branch, but he does not agree with the cited reference.  He thinks it is time to take a fresh look at Agent Orange and the damage it has done, both physically and mentally.  History has shown this agent is deadly and lifelong, both mentally and physically.  He contends the use of a chemical weapon was approved by the U.S. Government and sprayed by U.S. Forces which ultimately led to his illness.

4.  The applicant considers himself a good Soldier and was recognized by being awarded the Legion of Merit and Meritorious Service Medal with First Oak Leaf Cluster.  He also received a recommendation for promotion to master sergeant.  He contends his service was unexpectedly cut short after serving for nearly 13 years.  Since filing his initial application on 5 January 2010, the VA has granted service connection for chronic lymphocytic leukemia due to Agent Orange exposure and included acknowledgement of a history of migraine on 14 May 2010.  He points out his medical board proceedings state "inflammation of the colon" and his medical records indicate a correlation between ulcerated colitis and inflammation of the colon.  He states that since there were many unknowns at the time about Agent Orange, it is appropriate to presume that his chronic lymphocytic leukemia disease began at this time (1977) and went undetected for many years.

5.  The applicant also states his DA Form 199 presently reflects his original disability established on 20 March 1978 as not based on an instrumentality of war and item 8e (Incurred or Aggravated in Line of Duty in Time of War or National Emergency) of his DA Form 199 indicates "Yes."

6.  The applicant further states he served with Company B, 508th Army Security Agency, attached to the 7th Infantry Division at Camp Casey and Camp Alamo in the demilitarized zone in Korea during the period 1966/1967.  Based on his volunteer service for the last 3 years with the 1st Battalion, 304th Regiment, 4th Brigade, 98th Division, based at the Armed Forces Reserve Center, Londonderry, NH, he requests consideration for award of the Military Outstanding Volunteer Service Medal.  He served as the senior volunteer and Family Readiness Group leader; he was directly involved with multiple recruiting events while serving as a recruiting assistant; and he organized and coordinated the battalion's mobilization and demobilizing events from start to finish.  In order to end his service on a positive note, he sought out the Family Readiness Group position and volunteered to assist with the recruitment effort for the 1st Battalion, 304th Regiment, 4th Brigade, 98th Division.

7.  The applicant provides:

* two DD Forms 149 (Application for Correction of Military Record Under the Provisions of Title 10, U.S. Code, Section 1552)
* 14 attachments outlined on pages 3 and 4 of his letter to the Board, dated 5 January 2010
* 18 attachments outlined on pages 5 and 6 of his letter to the Board, dated 1 July 2010
* document titled, The Story of Agent Orange


* letter, dated 15 July 2010, with seven attachments outlined in the letter
* letter, dated 24 July 2010, with 10 attachments outlined in the letter

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 enlisted in the Regular Army on 6 July 1965 for a period of 4 years.  He served as a personnel specialist assigned to Company B, 508th Army Security Agency, 7th Infantry Division, in Korea from 8 April 1966 to 6 May 1967.  He served as a personnel specialist in Vietnam from 22 June 1968 to 24 April 1969.  On 9 January 1969, the applicant was honorably discharged for immediate reenlistment.

3.  The applicant's DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge) for the period ending 9 January 1969 does not show the Purple Heart as an authorized award.

4.  There is no evidence in the available records which shows the applicant was awarded the Purple Heart or was wounded as a result of hostile action in Vietnam.

5.  The applicant's DA Form 20 (Enlisted Qualification Record) does not show entitlement to the Purple Heart.  Item 40 (Wounds) is blank.  The applicant's name does not appear on the Vietnam casualty roster.

6.  The applicant reenlisted on 10 January 1969.  He remained on active duty through continuous reenlistments.

7.  On 21 February 1978, a PEB found the applicant physically unfit due to ulcerative colitis status post permanent ileostomy.  The PEB recommended a combined rating of 100 percent and that the applicant be permanently retired from the service.  The DA Form 199 shows the entry "Yes" in item 8e.  Item 10 states the applicant's retirement is not based on disability resulting from injury or disease received in the line of duty (LOD) as a direct result of armed conflict or caused by an instrumentality of war and incurred in the LOD during a period of war as defined by law.  On 23 February 1978, the applicant concurred with the PEB's findings and waived a formal hearing.

8.  On 20 March 1978, the applicant was retired by reason of permanent disability.

9.  The applicant's subsequent DD Forms 214 do not show the Purple Heart, ROK PUC or Military Outstanding Volunteer Service Medal as authorized awards.

10.  Department of the Army Pamphlet 672-3 (Unit Citation and Campaign Participation Credit Register) shows the 7th Infantry Division was awarded the ROK PUC for actions during the period 17 September 1950 to 27 March 1971 based on Department of the Army General Orders Number 50, dated 1971.

11.  There are no orders for the Military Outstanding Volunteer Service Medal in the available records.

12.  In support of his claim, the applicant provided two letters, dated November 2009 and June 2009, from the Military Awards Branch, U.S. Army Human Resources Command, Alexandria, Virginia, in response to his requests for the Purple Heart for injuries received as a result of exposure to Agent Orange.  These letters state the current criteria for award of the Purple Heart specifically excludes any chemical agents not released by the enemy and that since Agent Orange was directed at destroying the foliage that was being used as enemy cover and not directly intended for the enemy itself, an award of the Purple Heart on the basis of friendly fire cannot be authorized.

13.  The applicant provided a VA Rating Decision, dated 14 May 2010, which shows service connection was granted for chronic lymphocytic leukemia associated with herbicide exposure (100 percent).  This decision also states, "Although not shown in service, service connection for chronic lymphocytic leukemia has been granted on the basis of presumption due to Agent Orange exposure."

14.  Army Regulation 600-8-22 (Military Awards) 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 medical personnel, and the medical treatment must have been made a matter of official record.  The regulation also states that chemical, biological, or nuclear agents not released by enemy agents are examples of injuries or wounds which clearly do not qualify for award of the Purple Heart.

15.  Army Regulation 600-8-22 provides for award of the Purple Heart to individuals wounded or killed as a result of "friendly fire" in the "heat of battle" as long as the "friendly" projectile or agent was released with the full intent of inflicting damage or destroying enemy troops or equipment.

16.  Army Regulation 600-8-22 states the Military Outstanding Volunteer Service Medal may be awarded to members of the Armed Forces of the United States and their Reserve Components who, subsequent to 31 December 1992, perform outstanding volunteer community service of a sustained, direct, and consequential nature.  To qualify for award of the Military Outstanding Volunteer Service Medal, a service member's volunteer service must meet the following requirements:  (1) be to the civilian community, to include the military family community; (2) be significant in nature and produce tangible results; (3) reflect favorably on the military service and the Department of Defense; and (4) be of a sustained and direct nature.

17.  Title 26, U.S. Code, section 104, states that the term "combat-related injury" means personal injury or sickness which is incurred as a direct result of armed conflict, while engaged in extra hazardous service under conditions simulating war, or which is caused by an instrumentality of war.

18.  The Army Combat-Related Special Compensation website provides information pertaining to combat-related injuries that qualify through an instrumentality of war (combat vehicles, weapons, Agent Orange, etc.).  It states that incurrence during actual period of war is not required.  However, there must be a direct causal relationship between the instrumentality of war and disability.  The disability must be incurred incident to a hazard or risk of the service.  An instrumentality of war is a vehicle, vessel, or device designated primarily for military service and intended for use in such service at the time of the occurrence or injury.  It may include such instrumentalities not designated primarily for military service if use of or occurrence involving such instrumentality subjects the individual to a hazard peculiar to military service.  A determination that a disability is the result of an instrumentality of war may be made if the disability was incurred in any period of service as a result of such diverse causes as wounds caused by a military weapon, accidents involving military combat vehicle, injury or sickness caused by fumes, gases, or explosion or military ordinance, vehicles, or material.



DISCUSSION AND CONCLUSIONS:

1.  The applicant contends he should be awarded the Purple Heart for injuries he received as a result of exposure to Agent Orange and that Agent Orange was used as a weapon and should be viewed as such and resulting casualties should be classified as friendly fire.

2.  There is no evidence of record which shows the applicant was wounded as a result of hostile action in Vietnam.  The governing regulation clearly states that chemical, biological, or nuclear agents not released by enemy agents are examples of injuries or wounds which clearly do not qualify for award of the Purple Heart.  Since Agent Orange was employed by U.S. Forces in Vietnam as a chemical defoliant and not by the enemy, its use cannot be construed as a hostile action on the part of the enemy and exposure to Agent Orange cannot be the basis for award of the Purple Heart.  In addition, there is no evidence of record which shows the applicant was wounded as a result of "friendly fire" in the "heat of battle" as long as the "friendly" projectile or agent was released with the full intent of inflicting damage or destroying enemy troops or equipment as required by the governing regulation.  Regrettably, there is insufficient evidence on which to base award of the Purple Heart in this case.

3.  Department of the Army Pamphlet 672-1 shows the 7th Infantry Division was cited for award of the ROK PUC while the applicant was assigned to it.  Therefore, his DD Form 214 for the period ending 20 March 1978 should be corrected to show this unit citation.

4.  Since the applicant did not have an Active Army status on or after 31 December 1992, there is no basis for granting his request for the Military Outstanding Volunteer Service Medal.

5.  The applicant requests his DA Form 199 be corrected to show his disability resulted from an instrumentality of war.  His contention that his DA Form 199 shows his disability was incurred in the LOD in time of war or National emergency was noted.  The VA has recognized chronic lymphocytic leukemia as being associated with exposure to Agent Orange, and it appears that the VA recognizes Agent Orange as an instrumentality of war.  However, that was not the case in 1978.  There is no error on his DA Form 199 as it was prepared in accordance with guidelines in effect in 1978.

6.  The applicant's DA Form 199, dated 21 February 1978, properly indicates the facts at the time; that is, that his disability was not a direct result of armed conflict or caused by an instrumentality of war.  There is insufficient evidence on which to amend the DA Form 199.
BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

___x____  ___x____  ____x___  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

1.  The Board determined the evidence presented is sufficient to warrant a recommendation for partial relief.  As a result, the Board recommends that all Department of the Army records of the individual concerned be corrected by adding the ROK PUC to his DD Form 214 for the period ending 20 March 1978.

2.  The Board further determined the evidence presented is insufficient to warrant a portion of the requested relief.  As a result, the Board recommends denial of so much of the application that pertains to award of the Purple Heart and Military Outstanding Volunteer Service Medal or correction of his DA Form 199.



      ___________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)                                         AR20100007357



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ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


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ABCMR Record of Proceedings (cont)