IN THE CASE OF:	  

		BOARD DATE:	  15 December 2011

		DOCKET NUMBER:  AR20110012609 


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 correction of his DD Form 214 (Certificate of Release or Discharge from Active Duty) to show he was exposed to Sarin gas while in a combat zone.  

2.  He states he was exposed to Sarin gas while serving in a combat zone and wishes to have this [entry] included on his DD Form 214.  

3.  He provides his DD Form 214.  

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 27 October 1989.  

3.  Item 18 (Remarks) on his DD Form 214 shows he served in Southwest Asia from 16 October 1990 to 2 May 1991.  

4.  On 1 April 2002, the applicant was evaluated by a Medical Evaluation Board (MEB) and was diagnosed as having organic brain syndrome (not otherwise specified) and major depression.  His medical conditions of right knee pain, bilateral pes planus, and chronic daily headaches met retention standards.  He concurred with the board’s findings and recommendation.  He was referred to a Physical Evaluation Board (PEB).

5.  On 22 April 2002, an informal PEB determined that the applicant was physically unfit for duty due to organic brain syndrome (dementia) and recommended a combined disability rating of 30 percent.  He was considered as not competent and his mother was appointed as the legal next-of-kin representative.  The PEB recommended that the applicant be separated and placed on the temporary disability retired list with reevaluation during August 2003.  The applicant's legal next-of-kin (mother) did not concur with the PEB's findings and recommendation and demanded a formal hearing with a personal hearing.  

6.  The PEB proceedings indicated that if the applicant retired because of disability, the board made the recommended finding that: 

	a.  The applicant's retirement was not based on a disability from an injury or disease received in the line of duty as a direct result of armed conflict or caused by an instrumentality of war incurring in line of duty during a period of war as defined by law;

   b.  The applicant was not a member or obligated to become a member of an armed force or Reserve thereof, or the NOAA [National Oceanic and Atmospheric Administration] or the USPHS [United States Public Health Service] on 24 September 1975; and

   c.  The disability did not result from a combat related injury as defined in 26 U.S.C. [United States Code] 104.

7.  On 12 June 2002, a formal PEB found the applicant unfit for military service due to organic brain syndrome (dementia).  The PEB recommended a combined disability rating of 70 percent with a permanent physical disability retirement.  The applicant's legal next-of-kin concurred with the PEB findings and recommendation.  

8.  His service record is void of evidence which indicates he was exposed to Sarin gas in a combat zone.  

9.  On 27 September 2002, he was retired from active duty based on a permanent physical disability.

10.  Army Regulation 635-5 (Separation Documents) prescribes the separation documents prepared for Soldiers upon retirement, discharge, or release from active military service or control of the Army.  It establishes standardized policy for the preparation of the DD Form 214.  

   a.  It states that for an active duty Soldier deployed with his or her unit during their continuous period of active service, the statement "SERVICE IN (NAME OF COUNTRY DEPLOYED) FROM (inclusive dates for example, YYYYMMDD - YYYYMMDD)" will be entered in item 18.  
   
   b.  The regulation does not provide guidance for entry of exposure to gases while in a combat zone.  

11.  Information retrieved from Nilesema.com revealed that Sarin is a man-made chemical warfare agent classified as a nerve agent.  Nerve agents are the most toxic and rapidly acting of the known chemical warfare agents.  They are similar to certain kinds of insecticides called organophosphate insecticides in terms of how they work and what kind of harmful effects they cause; however, nerve agents are much more potent than insecticides.  Sarin originally was developed in 1938 in Germany as an insecticide.  Sarin and other nerve agents may have been used in chemical warfare during the Iran-Iraq War in the 1980s and was used in two terrorist attacks in Japan in 1994 and 1995.

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends that he was exposed to Sarin gas while serving in a combat zone.  However, his service record is void of evidence to support his claim.  Additionally, his MEB/PEB proceedings do not indicate he incurred medical conditions due to exposure to gases while in a combat zone.  

2.  He served in Southwest Asia from 16 October 1990 to 2 May 1991 and this deployment is properly recorded in item 18 of his DD Form 214.  

3.  There is no regulatory provision for modifying his DD Form 214 to show he was exposed to gases while in a combat zone.  Therefore, there is no basis for granting the applicant's request.  

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)                                         AR20110012609



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ABCMR Record of Proceedings (cont)                                         AR20110012609



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