IN THE CASE OF:  	  

		BOARD DATE:  30 April 2015	  

		DOCKET NUMBER:  AR20140014850 


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:

* two awards of the Purple Heart with Oak Leaf Cluster (Purple Heart 1OLC)
* that the Meritorious Unit Commendation (MUC) be added to his DD Form 214 (Certificate of Release or Discharge from Active Duty) 
* that his name be added to the Gulf War Casualty Roster
* that his retirement orders be corrected to reflect his “Disability is based on injury or disease received in line of duty as a direct result of armed conflict or caused by an instrumentality of was and incurred in line of duty during a war period as defined by law” and “Disability resulted from a combat related injury as defined in 28 USC [Title 28, U.S. Code] 104” 

2.  The applicant states, in pertinent part, on 26 February 1991, he sustained a 3rd degree burn to his leg when a multiple launch rocket system (MLRS) malfunctioned while firing at the enemy and caused an electrical fire that threatened to destroy the weapons system if not extinguished.  He jumped on the vehicle to fix the problem and distinguish the fire and unknowingly was burned on his left leg, which he later discovered and sought treatment.  He was exposed to Iraqi chemicals that have resulted in disability retirement.  His unit was awarded the MUC and it should be added to his records and his retirement orders should be corrected to show his disabilities were incurred as a result of armed conflict.   


3.  The applicant provides a six-page letter explaining his application, a list of enclosures, and a two-inch binder containing his enclosures.

CONSIDERATION OF EVIDENCE:

1.  Title 10, USC, 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 29 October 1986 for a period of 4 years and training as an MLRS repairer.  He completed basic training at Fort Leonard Wood, Missouri and advanced individual training at Redstone Arsenal, Alabama before being transferred to Germany on 17 June 1987 for assignment to the 45th Ordnance Company.  

3.  The applicant was deployed to Southwest Asia in support of Operation Desert Shield/Storm during the period 19901221 – 19910424.  He was in charge of a five-man detachment under operational control of Battery A, 4th Battalion, 27th MLRS.

4.  On 18 April 1995, a Medical Evaluation Board conducted at Landstuhl Regional Medical Center, Germany diagnosed the applicant as having mixed urticaria (a physical urticaria) plus the possible presence of a MAST cell activating substance, Idiopathic chronic fatigue, and multiple chemical sensitivities and recommended that he be referred to a Physical Evaluation Board (PEB).

5.  Although not present in the available records and the applicant has not provided his PEB proceedings, the applicant was placed on the Temporary Disability Retired List (TDRL) in the pay grade of E-6 effective 21 October 1995 with a 30% disability rating.  He was removed from the TDRL on 24 June 1997 and was permanently retired by reason of permanent disability with a 40% disability rating.  His disabilities were not deemed to be combat related.

6.  On 31 March 1997, the applicant was granted a combined 70% service-connected disability rating by the Department of Veterans Affairs (VA) for chronic fatigue syndrome, urticaria cholinergic, residuals of fracture of the lower thoracic/upper lumbar spine, and irritable bowel syndrome.  In 1999, the VA granted the applicant a 100% service-connected disability rating for chronic fatigue syndrome.

7.  On 10 June 2008, the applicant was awarded 100% combat-related special compensation (CRSC) for his disabilities.  VA records and presumptive conditions were used as the basis for the determination.

8.  On 8 August 2008, the Chief, Military Awards Branch, U.S. Army Human Resources Command, in response to an inquiry by the applicant’s Congressional Representative, informed the representative that the statement from the physician’s assistant was insufficient evidence of treatment and that more evidence in the form of unit reports, notarized witness statements, and medical records was needed to establish his eligibility for award of the Purple Heart.

9.  The statement from the physician’s assistant indicates that he remembers treating the applicant and that he completed the necessary records of treatment as required.  He also opines the applicant is eligible for award of the Purple Heart.

10.  The statement from his platoon leader at the time serves to verify that there was an MLRS tube fire on 26 February 1991 and the applicant was involved in distinguishing the fire.  He makes no mention of the applicant being injured or treated.

11.  A search of the lineage and honors of the 4th Battalion, 27th Field Artillery Regiment shows the unit was awarded the MUC for Southwest Asia for the period of 1990 – 1991. 

12.  Army Regulation 600-8-22 (Military Awards) provides, in pertinent part, 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, and the medical treatment must have been made a matter of official record.

13.  Army Regulation 600-8-22 states that the Purple Heart is awarded to a member who has been wounded or killed:  (1) In any action against an enemy of the United States; (2) In any action with an opposing armed force of a foreign country in which the Armed Forces of the United States are or have been engaged; (3) While serving with friendly foreign forces engaged in an armed conflict against an opposing armed force in which the United States is not a belligerent party; (4) As a result of an act of any such enemy of opposing armed forces; (5) As the result of an act of any hostile foreign force; and (6) After 
28 March 1973, as a result of an international terrorist attack against the United States or a foreign nation friendly to the United States, recognized as such an attack by the Secretary of Army, or jointly by the Secretaries of the separate armed services concerned if persons from more than one service are wounded in the attack.  

14.  Army Regulation 600-8-22 states the Kuwait Liberation Medal awarded by the Kingdom of Saudi Arabia (KLM-SA) was approved on 3 January 1992 and is awarded to members of the Armed Forces of the United States who participated in the Persian Gulf War between 17 January 1991 and 28 February 1991.

15.  Army Regulation 600-8-22 states the Kuwait Liberation Medal awarded by the Government of Kuwait (KLM-K) was approved on 9 November 1995 and is awarded to members of the Armed Forces of the United States who participated in the Persian Gulf War between 2 August 1990 and 31 August 1993.

16.  There is a difference between the VA and the Army disability systems.  The Army’s determination of a Soldier’s physical fitness or unfitness is a factual finding based upon the individual’s ability to perform the duties of his or her grade, rank or rating.  If the Soldier is found to be physically unfit, a disability rating is awarded by the Army and is permanent in nature.  The Army system requires that the Soldier only be rated as the condition(s) exist(s) at the time of the PEB hearing.  The VA may find a Soldier unfit by reason of service-connected disability and may even initially assign a higher rating.  The VA’s ratings are based upon an individual’s ability to gain employment as a civilian and may fluctuate within a period of time depending on the changes in the disability.

DISCUSSION AND CONCLUSIONS:

1.  The applicant deployed to SWA during the period 19901221 – 19910424 and was under operational control of Battery A, 4th Battalion, 27th Field Artillery Regiment (MLRS).  That unit was awarded the MUC during the period he served with the unit and he is entitled to have that award added to his DD Form 214.

2.  The applicant also served during a qualifying period for awards of the KLM-K and KLM-SA and is entitled to have those awards added to his DD Form 214. 

3.  The applicant contends that he was treated for a 3rd degree burn wound received while his unit was engaging the enemy on multiple occasions and his letter of support from the treating physician’s assistant indicates that records were made of the treatment; however, the applicant has produced no such records.

4.  Additionally, the applicant has provided insufficient evidence to show the incident in question occurred as he claims and that it in fact meets the criteria for award of the Purple Heart.

5.  In regard to the applicant’s claim that he should receive a Purple Heart for his exposure to Iraqi chemicals on 4 March 1991, it is noted that he has also not provided sufficient evidence to show that he was wounded or injured on 4 March 1991, that he sought immediate treatment for a wound or injury, and that such treatment was made a matter of record.

6.  While it is true that the applicant was granted 100% CRSC for his disabilities based on VA records and presumptive conditions, this decision does not serve as a basis to declare his disabilities as combat-related at the time he retired.  The Army system requires that the Soldier only be rated as the condition(s) exist(s) at the time of the PEB hearing and there is no evidence to show his disabilities were deemed to be combat-related.  Accordingly, there appears to be insufficient evidence to amend his retirement orders to show his disabilities were combat-related. 

7.  Therefore, in the absence of sufficient evidence to show that he was in fact injured or wounded as a result of enemy action on 26 February and/or 4 March 1991 and the treatment was made a matter of record, there appears to be no basis to grant his request to award him the Purple Heart or to add his name to the Gulf War Casualty Listing.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

____X___  ____X___  ____X___ GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION





BOARD DETERMINATION/RECOMMENDATION:

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

* deleting the Kuwait Liberation Medal from his DD Form 214
* adding the KLM-K, KLM-SA, and MUC to his DD Form 214 

2.  The Board further determined that the evidence presented is insufficient to warrant a portion of the requested relief.  As a result, the Board recommends denial of so much of the application that pertains to awarding him the Purple Heart, placing his name on the Gulf War Casualty Listing, and changing his retirement orders to show his disabilities were combat-incurred.

3.  The Board wants the applicant and all others concerned to know that this action in no way diminishes the sacrifices made by the applicant in service to the United States during the Gulf War.  The applicant and all Americans should be justifiably proud of his service in arms.



      _______ _   _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)                                         AR20140014850



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ABCMR Record of Proceedings (cont)                                         AR20140014850



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