IN THE CASE OF:
BOARD DATE: 12 August 2014
DOCKET NUMBER: AR20130021401
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, the daughter of a deceased former service member (FSM), requests that her father be awarded the Purple Heart because he developed diabetes and other conditions related to exposure to Agent Orange.
2. The applicant states the FSM developed diabetes, prostrate problems, and post-traumatic stress disorder through direct combat in Vietnam. He received extensive treatment and is deserving of the Purple Heart.
3. The applicant provides
* a March 1997 Georgia state Power of Attorney appointing the applicant as attorney-in-fact over any and all of the FSM's issues and concerns
* her birth certificate
* January 2007 Department of Veterans Affairs (VA) Statement in Support of Claim requesting service connection for diabetes due to Agent Orange and associated diabetic conditions
* FSM's death certificate
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 was originally inducted in July 1963. He later enlisted and served until November 1971 when he was retired, in pay grade E-5, for physical disability due to narcolepsy and venous thrombosis.
3. Upon retirement his awards included the National Defense Service Medal, Army Good Conduct Medal (2nd Award), Vietnam Service Medal with three bronze service stars, and the Expert Marksmanship Qualification Badge with Rifle Bar.
4. A career engineering equipment repairman, he served in Vietnam from October 1965 to June 1966 and from May 1970 to May 1971. He received a letter of appreciation for his service under combat conditions from 7 February to 7 March 1966
5. His DA Form 20 (Enlisted Qualification Record) does not list any wounds or show the Purple Heart as an authorized award.
6. There is no evidence of record showing that the applicant was treated for a wound sustained while in action against the enemy or as the result of enemy action.
7. Army Regulation 600-8-22 (Military Awards) states 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 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.
DISCUSSION AND CONCLUSIONS:
1. The quality of the FSM's service is acknowledged.
2. However, the prerequisites for award of the Purple Heart are quite specific. The Purple Heart is awarded only if a Soldier is treated for a wound (emphasis added) sustained while in action against the enemy or as a result of enemy action and only if there is an official record of that treatment.
3. The available evidence indicates that the FSM, over time, developed conditions that may be linked to Agent Orange but there is no evidence that he sustained and was treated for a combat wound. 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.
4. In view of the foregoing, 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) AR20130021401
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ABCMR Record of Proceedings (cont) AR20130021401
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ARMY BOARD FOR CORRECTION OF MILITARY RECORDS
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