IN THE CASE OF:
BOARD DATE: 23 July 2015
DOCKET NUMBER: AR20140021312
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 that her deceased husband, a former service member (FSM), be awarded the Purple Heart.
2. The applicant states the FSM died from overexposure to Agent Orange. He was exposed to Agent Orange while on active duty during wartime.
3. The applicant provides:
* Marriage License
* Certificate of Death
* DD Form 214 (Report of Separation from Active Duty)
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 enlisted in the Regular Army on 27 April 1965. He completed training and he was awarded military occupational specialty 12C (Bridge Specialist).
3. The FSM's record contains:
a. DA Form 2-1 (Personnel Qualification Record) which shows he served in the Republic of Vietnam from 5 January 1968 to 25 August 1969.
b. DA Form 199 (Physical Evaluation Board (PEB) Proceedings), dated 17 January 1978, which reveals a PEB found the FSM physically unfit and recommended a combined rating of 60 percent due to Hodgkin's Disease and Bronchitis, and that he be placed on the Temporary Disability Retired List (TDRL).
c. DA Form 199, dated 28 April 1981, which indicates a PEB found the FSM physically unfit and recommended a combined rating of 30 percent due to Hodgkin's Disease and that he be permanently retired from the service.
d. Orders D92-7, issued by the Chief, Disability Section, Retirements Branch, dated 13 May 1981, which removed him from the TDRL, effective 31 May 1981, and permanently retired him in the grade/rank of sergeant/E-5 the following day.
4. The FSM's available records do not list any wounds or show the Purple Heart as an authorized award. In addition, 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 and his name does not appear on the Vietnam casualty roster.
5. 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 FSM 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." Notwithstanding the applicant's contention, exposure to Agent Orange cannot be the basis for award of the Purple Heart.
3. In view of the foregoing, 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.
ABCMR Record of Proceedings (cont) AR20140021312
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ABCMR Record of Proceedings (cont) AR20140021312
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