IN THE CASE OF:	

		BOARD DATE:	  13 November 2012

		DOCKET NUMBER:  AR20120008615 


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.  He also requests a personal hearing.

2.  The applicant states:

* He sustained injuries while performing assigned duties during the course of Operation Iraqi Freedom (OIF) at the Iraqi Nuclear Research and Development Center at Al Tuwaithah, Iraq in 2003
* The current regulation for award of the Purple Heart does not consider the Army mission into weapons of mass destruction and associated hazards
* The situation at Al Tuwaitha was tantamount to an ambush site in that a hazard was created by the enemy that his unit walked into
* Due to chemical processes involved in the production of weapons grade uranium, a real hazard of chlorine gas existed at the site
* It is unclear who created the hazard but it can be reasonable to presume the enemy did so to obstruct advancement of U.S. forces
* If the regulation is changed, it would entitle him to the Purple Heart

3.  The applicant provides:

* Denial letter from the U.S. Army Human Resources Command (HRC)
* Self-authored DA Form 4187 (Personnel Action)
* Self-authored daily report
* 
DD Form 2796 (Post-Deployment Health Assessment)
* Internet article about handling toxic exposure in Iraq

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.  Having had prior service, the applicant was appointed as a Regular Army commissioned officer and he executed an oath of office on 6 June 1979.  He served in a variety of stateside or overseas assignments, and he was promoted to colonel (COL).

3.  He retired on 31 December 2005 and he was placed on the Retired List in his retired grade of COL on 1 January 2006.  He completed 28 years, 5 months, and 26 days of creditable active service.

4.  He served in Kuwait/Iraq from on or about April 2003 to on or about July 2003. He was a member of the Nuclear Disablement Team (NDT), attached to the
75th Exploitation Task Force (75th XTF) at Baghdad International Airport from
7 May to 25 June 2003.

5.  He applied to HRC for award of the Purple Heart by submitting a self-authored DA Form 4187 wherein he contended:

* He was Head of Delegation for Non-Proliferation Treaty inspection by the International Atomic Energy Agency at the Iraqi Nuclear facility in Tuwaitha, attached to the 75th XTF for the purpose of inspections
* On 11 June 2003, during looting, someone spilled an "EMIS" solution onto some uranium tetrachloride that resulted in producing hydrochloric acid and chlorine gas
* He and others experienced burning sensations in the nose and throat, dizziness, and slight disorientation
* They were immediately evacuated to fresh air and donned on their protective masks
* They reported the issue to their physician and although there were no immediate symptoms, there were long-term effects
* He was ultimately referred to a pulmonary specialist who confirmed bronchial damage as a result of inhalation of chlorine gas resulting in moderate asthma

6.  With his request, he also submitted:

* A self-authored daily report describing their daily activities, findings, and observations
* A post-deployment health assessment, dated 7 October 2003, indicating he was exposed to chlorine, fluoride gas, and hydraulic acid

7.  On 17 October 2005, HRC officials denied his request.

8.  Army Regulation 600-8-22 (Military Awards) provides that the Purple Heart is awarded for a wound sustained while in action against an enemy or 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.

	a.  A wound is defined as an injury to any part of the body from an outside force or agent sustained under one or more of the conditions applicable to the Purple Heart.  A physical lesion is not required; however, the wound for which the award is made must have required treatment by medical personnel and records of medical treatment for wounds or injuries received in action must have been made a matter of official record.  

	b.  Examples of enemy-related injuries that clearly justify award of the Purple Heart are as follows:

* injury caused by enemy bullet, shrapnel, or other projectile created by enemy action
* injury caused by enemy placed mine or trap
* injury caused by enemy released chemical, biological, or nuclear agent
* injury caused by vehicle or aircraft accident resulting from enemy fire
* concussion injuries caused as a result of enemy generated explosions

	c.  Examples of injuries or wounds which clearly do not justify award of the Purple Heart are as follows:

* frostbite or trench foot injuries
* heat stroke
* food poisoning not caused by enemy agents
* chemical, biological, or nuclear agents not released by the enemy
* battle fatigue
* disease not directly caused by enemy agents
* accidents, to include explosive, aircraft, vehicular, and other accidental wounding not related to or caused by enemy action
* self-inflicted wounds
* except when in the heat of battle and not involving gross negligence
* post-traumatic stress disorders
* jump injuries not caused by enemy action

9.  Army Regulation 15-185 (ABCMR) prescribes the policies and procedures for correction of military records by the Secretary of the Army, acting through the ABCMR.  Paragraph 2-11 states applicants do not have a right to a hearing before the ABCMR.  The Director or the ABCMR may grant a formal hearing whenever justice requires.

DISCUSSION AND CONCLUSIONS:

1.  The Purple Heart differs from all other decorations in that an individual is not "recommended" for the decoration; rather he or she is entitled to it upon meeting specific criteria.  When contemplating award of the Purple Heart, the key issue that commanders must take into consideration is the degree to which the enemy caused the injury.  The fact that the proposed recipient was participating in direct or indirect combat operations is a necessary prerequisite, but is not sole justification for the award.

2.  The criteria for an award of the Purple Heart requires the submission of substantiating evidence to verify that the injury/wound was the result of hostile action or while engaged in combat, the injury/wound must have required treatment by medical personnel, and the medical treatment must have been made a matter of official record. 

3.  In this case, the applicant does not meet any of the three conditions for award of the Purple Heart in that there is no evidence of record and he has not provided any evidence to support a combat wound or treatment.  He is suggesting a change to the regulation to fit his specific situation.

4.  Notwithstanding his sincerity, in the absence of documentation that conclusively shows he was wounded or injured as a result of hostile action, treated for those wounds/injuries, and his treatment was made a matter of record, there is insufficient evidence upon which to base award of the Purple Heart in this case.

5.  The applicant’s request for a personal appearance hearing was also carefully considered.  However, by regulation, an applicant is not entitled to a hearing before the Board.  Hearings may be authorized by a panel of the Board or by the Director of the ABCMR.  In this case, the evidence of record and independent evidence provided by the applicant is sufficient to render a fair and equitable decision at this time.  As a result, a personal appearance hearing is not warranted to serve the interest of equity and justice in this case.

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)                                         AR20120008615



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ABCMR Record of Proceedings (cont)                                         AR20120008615



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