BOARD DATE: 19 March 2014
DOCKET NUMBER: AR20130012127
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.
2. The applicant states, in effect, he should be awarded the Purple Heart based on his exposure to Agent Orange causing his chloracne 5 1/2 years ago.
3. The applicant provides 10 photographs.
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 6 October 1969, he enlisted in the Regular Army. He immediately reenlisted on 30 September 1970 and on 4 May 1971. His DD Forms 214 (Armed Forces of the United States Report of Transfer or Discharge) with effective dates of 29 September 1970 and 3 May 1971 do not show he was awarded the Purple Heart.
3. He served in the Republic of Vietnam from 2 September 1970 to 1 September 1971. He was assigned to the:
* 378th Main Support Company from 12 - 15 September 1970
* 185th Maintenance Battalion from 16 September - 15 December 1970
* 510th Engineer Company from 16 December 1970 - 8 February 1971
* 378th Maintenance Support Company from 9 February - 29 August 1971
4. On 3 May 1976, he was discharged by reason of his completion of required service. His DD Form 214 (Report of Separation from Active Duty) with an effective date of 3 May 1976 does not show he was awarded the Purple Heart.
5. There is no evidence in the available records which shows the applicant was awarded the Purple Heart or wounded as a result of hostile action in Vietnam.
6. His DA Form 20 (Enlisted Qualification Record) does not show entitlement to the Purple Heart. Item 40 (Wounds) is blank. His name does not appear on the Vietnam casualty roster.
7. 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.
a. 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.
b. The regulation also 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.
DISCUSSION AND CONCLUSIONS:
1. There is no evidence of record which shows the applicant was wounded as a result of hostile action in Vietnam.
2. 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. 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. In addition, Agent Orange was not used as a weapon against enemy forces. Therefore, there would be no basis to show exposure as "friendly fire" in the "heat of battle." Therefore, exposure to Agent Orange cannot be the basis for award of the Purple Heart.
3. In view of the above, regrettably, there is insufficient evidence upon which to base award of the Purple Heart 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.
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