IN THE CASE OF:	  

		BOARD DATE:	  4 June 2013

		DOCKET NUMBER:  AR20120019829 


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 applicants, the son and grandson of a deceased former service member (FSM), request posthumous award of the Purple Heart to the FSM.

2.  The applicants state the FSM should be awarded the Purple Heart for a wound he incurred to his right eye when he was gassed in the Meuse-Argonne campaign in 1918.

3.  The applicants provide documentation through counsel.

COUNSEL'S REQUEST, STATEMENT AND EVIDENCE:

1.  Counsel, a U.S. Senator, requests posthumous award of the Purple Heart to the FSM.

2.  Counsel states, in part, the FSM should be awarded the Purple Heart based on provisions of Army Regulation 600-8-22 (Military Awards) stating the Purple Heart may be awarded for an injury caused by an enemy-released chemical, biological, or nuclear agent.  The FSM was gassed with mustard gas during the Meuse-Argonne campaign in France on 2 October 1918 just before the end of World War I.

3.  Counsel provides:

* three-page letter to the Army Review Boards Agency (ARBA), dated 25 September 2012
* FSM's certificate of death
* copies of photographs of a Soldier, equipment, and awards
* FSM's Report of Physical Examination, dated 7 January 1921
* Treasury Department letter, dated 21 February 1921
* FSM's letter to the Federal Board for Vocational Education, dated 30 March 1921
* Affidavit of Disability and Honorable Discharge, dated 6 April 1921
* Federal Board for Vocational Education Survey, dated 18 April 1921
* FSM's Report of Physical Examination, dated 18 April 1921
* FSM's letter to the Veterans Bureau, Salt Lake City, UT, dated 21 July 1922
* FSM's Report of Physical Examination, dated 28 February 1923
* Veterans Administration (VA) letter, dated 20 July 1953
* printout of a page from the website of the Office of Medical History, Army Medical Department (AMEDD)
* two pages from Medical Aspects of Chemical Warfare
* printout of a webpage describing the effects of mustard gas
* applicants' birth certificates
* pages from a unit morning report
* WD AGO Form 724-1 (Record of Service)
* FSM's VA claim file

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 complete military records are not available for review.  A fire destroyed approximately 18 million service members' records at the National Personnel Records Center (NPRC) in 1973.  It is believed his records were lost or destroyed in that fire.  This case is being considered using the documents provided by counsel and a reconstructed record provided by NPRC.

3.  The FSM's VA claim file includes a copy of his Honorable Discharge Certificate and Enlistment Record.  This document shows:

* he enlisted on 2 October 1917
* he served with the 91st Division Military Police
* he participated in the Meuse-Argonne campaign from 26 September to 4 October 1918
* he received no wounds in service
* he was honorably discharged on 29 April 1919

4.  In a notarized Affidavit of Disability and Honorable Discharge, dated 6 April 1921, the FSM stated he "was gassed about Oct 2, 1918, at the Meuse-Argonne and was treated by U.S. doctors in a private home at La Ferte-Barnard [sic] France for about six weeks."  He stated he did not make a claim for disability when he was discharged because he thought his condition would improve.  He stated, "Since discharge I have suffered continually with discharge and pains in my right eye, which commenced almost immediately after discharge, and which is a serious handicap to me since I have considerable bookwork to do in connection with my farming activities.  Also I suffer greatly with nervousness."

5.  A Federal Board for Vocational Education Survey, dated 18 April 1921, shows he reported "defective sight in right eye and nervousness caused by gassing in action."  He indicated the disability occurred on about 2 October 1918 in Meuse-Argonne.  He stated he received treatment at La Ferté-Bernard, France, for about 6 weeks and was not hospitalized.

6.  A U.S. Public Health Service Report of Physical Examination, dated 18 April 1921, shows in:

* item 9 – "Gassed Oct. 2, 1918, no hospital treatment but was off duty for 6 weeks."
* item 10 – "Nervousness.  Sight is bad in right eye."
* item 12 – "Hypertension, cause undetermined."
* Item 22 – "Disability greater than 10%.  Did not report to eye specialist, 
x-ray or laboratory."

7.  A Federal Board for Vocational Education Form 213, dated 12 May 1921, shows the FSM's complete hospital and medical records were requested from the Army.  The reverse side of the form shows two handwritten entries and a typewritten entry that appear to have been provided by the Army in response to the request.

	a.  The handwritten entries show he was treated twice at Camp Lewis, WA, for conditions incurred in the line of duty.  He was treated for acute bronchitis and returned to duty on 3 November 1917.  He was treated for acute tonsillitis and returned to duty on 25 June 1918.

	b.  A typewritten entry with the heading "Hospital Record" states he was "gassed about Oct. 2, 1918 at the Meuse, Argonne, and was treated by U.S. doctors in a private home at La-Ferte-Barnard [sic], France for about six weeks."

8.  In a letter to the Veterans Bureau, Salt Lake City, UT, dated 21 July 1922, the FSM appealed for assistance with his eyes.  He stated they were growing worse and he was afraid of losing sight in one of them.  He stated, "When examined by Doctors they claim it to be the direct result of gas."

9.  A U.S. Veterans Bureau Report of Physical Examination, dated 28 February 1923, shows in:

* item 9 (Brief History of Claimant's Disability During Service) – "Gassed Oct. 2nd, 1918, no hospital treatment but off duty for six weeks."
* item 10 (Present Complaint (Subjective Symptoms, Not Diagnosis) – "Trouble with right eye, can't read.  There is a haze in front of the eye, burns and pains all the time."  
* item 12 (Diagnosis) – "1 – Nephritis [inflammation in the kidneys], chronic.  2 – Arterial hypertension.  3 – Amygdalitis [inflammation of the tonsils], chronic.  4 – Hyperopic astigmatism, right; hypermetropia, left."

10.  A Veterans Bureau Claims Brief, dated 12 December 1928, shows a service-connected rating determination had been previously been made for "trachoma – granulated lid – defective eyesight" and "missing teeth."  The claims official noted service connection had previously been denied for trachoma and there was no evidence to support service connection except for the FSM's affidavit, dated 6 April 1921.  There were no comrades' affidavits, no medical statements, and the Adjutant General's Office showed no eye disability and nothing to cause eye disability.  The claims official further noted the FSM was discharged with no disability noted.  It was determined service connection for trachoma was not shown by a preponderance of evidence.

11.  A Veterans Bureau Rating Sheet, dated 14 December 1928, shows a rating board found the FSM's trachoma was not incurred in or aggravated by service.

12.  On 20 October 1951, his right eye was removed as the result of an injury he sustained on 7 September 1951.

13.  On 20 July 1953, the VA notified him he had been awarded monthly compensation based on the enucleation of his right eye, a condition affecting his circulatory system, and a condition affecting his genital region.  The effective date was the date the VA received notification his employment had been terminated.

14.  The FSM died on 17 December 1955.

15.  A VA Form VB 8-606 (Decision – Dependents Pension Board), dated 5 April 1956, shows service connection had not been established for any eye conditions.

16.  Counsel provides, in part:

	a.  a printout of a page from the website of the Office of Medical History, AMEDD, showing 12 members of the 91st Division were gassed near Véry, France, on 3 October 1918;

	b.  two pages from Medical Aspects of Chemical Warfare published by the Borden Institute, Office of the Surgeon General, AMEDD Center and School, U.S. Army, showing approximately 20,000 chemical warfare casualties were reported among 1st Army divisions during the Meuse-Argonne campaign and the 91st Division was involved in chemical warfare during the Meuse-Argonne offensive from 26 September to 11 November 1918; and

	c.  a printout of a webpage describing the effects of mustard gas showing exposure would cause inflammation and swelling of the conjunctiva, opacity of the cornea, congestion, and corneal ulcer.

17.  In a letter to ARBA, dated 25 September 2012, counsel describes the treatment of Soldiers exposed to gas during World War I.  He notes these Soldiers could not be placed with other wounded Soldiers or placed in a hospital.  In the FSM's case, he was treated in a private home for 6 weeks and he was not counted among the wounded.  Many Soldiers exposed to gas were falsely diagnosed with pneumonia and bronchitis because of the effects on their tonsils and breathing issues.  They were also falsely diagnosed with trachoma, which has symptoms similar to those caused by exposure to gas.  Counsel states the FSM's "injuries consisted of temporary blindness, sticky eyes, burning and pain, bronchial problems, and nervousness, which are consistent with exposure to mustard gas."  Counsel continues, stating, in effect, that today the FSM's eye problems would be attributed to being gassed.

18.  The Purple Heart was established by General George Washington at Newburgh, New York, on 7 August 1782, during the Revolutionary War.  In 1932, it was reestablished by the President of the United States per War Department General Orders Number 3.  It was awarded in the name of the President of the United States to any member of the Armed Forces or any civilian national of the United States who, while serving under competent authority in any capacity with one of the U.S. Armed Services after 5 April 1917, died or sustained wounds as a result of hostile action.

19.  Army Regulation 600-8-22 (Military Awards) states the Purple Heart is awarded for a wound sustained as a result of hostile action.  Substantiating evidence must be provided to verify 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.  The Purple Heart may be awarded for an injury caused by an enemy-released chemical, biological, or nuclear agent.

20.  War Department Circular Number 6, dated 22 February 1932, published the initial criteria for the reestablished Purple Heart and ended authorization for award of the wound chevron.  The circular stated awards of the Purple Heart for acts or service performed prior to 22 February 1932 would be confined to the following persons:

	a.  members of the Army of the United States who were awarded the Meritorious Service Citation Certificate for expeditionary service in World War I,

	b.  individuals authorized to wear the wound chevron and who made application for the Purple Heart, and

	c.  individuals not authorized to wear the wound chevron prior to 22 February 1932 who would otherwise have been authorized to wear that decoration under the provisions of Army Regulation 600-95 (Authority for Wearing, and Supply of, Wound and War Service Chevrons).

21.  Army Regulation 600-95 stated a wound chevron was authorized for wear by individuals who received a wound in action with an enemy of the United States that necessitated treatment by a medical officer.  A wound chevron was not authorized in any case where medical treatment was not given.  The word "wound," as used in this regulation, included "disablement by gas or gas poisoning."

22.  A review of medical research shows a causal relationship has been established between exposure to mustard gas and the development of recurrent keratitis (inflammation of the cornea often marked by moderate to intense pain with impaired eyesight and feelings of scratching each time an individual blinks) and chronic conjunctivitis (inflammation of the outermost layer of the eye and the inner surface of the eyelids).

DISCUSSION AND CONCLUSIONS:

1.  The available evidence supports the applicants' request for posthumous award of the Purple Heart to the FSM.

2.  Although the VA was unable to establish that his eye condition was connected to military service, medical research has since shown that the long-term effects of exposure to gas may include conditions with symptoms like those the FSM reported after his discharge.  Further, the available evidence shows the Army provided information to the VA indicating the FSM was treated by doctors after he was gassed in October 1918.  While this information may have been insufficient for the VA to establish service connection for his eye condition, it is accepted as sufficient to establish his eligibility for the wound chevron and, therefore, award of the Purple Heart.

3.  In view of the foregoing, it would be appropriate to posthumously award the Purple Heart to the FSM for wounds he received when he was exposed to gas on or about 2 October 1918.

BOARD VOTE:

____X____  __X______  ___X_____  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

The Board determined the evidence presented is sufficient to warrant a recommendation for relief.  As a result, the Board recommends that all Department of the Army records of the individual concerned be corrected by 


posthumously awarding him the Purple Heart for wounds he received on or about 2 October 1918.



      ____________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)                                         AR20120019829



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ABCMR Record of Proceedings (cont)                                         AR20120019829



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