Docket No: 3071-20
Ref: Signature Date                                                                                                           
                                                      
 
 
Dear :  
 
This letter is in reference to your reconsideration request.  You previously petitioned the Board for Correction of Naval Records (Board) and were advised that your application had been denied.  Your case was reconsidered in accordance with Board procedures that conform to Lipsman v. Sec’y of the Army, 335 F. Supp. 2d 48 (D.D.C. 2004).  After careful and conscientious consideration of relevant portions of your naval record and your application, the Board found the evidence submitted was insufficient to establish the existence of probable material error or injustice.  Consequently, your application has been denied.      
 
Although your application was not filed in a timely manner, the Board found it in the interest of justice to waive the statute of limitations and consider your application on its merits.  A three-member panel of the Board, sitting in executive session, considered your application on 1 October 2020.  The names and votes of the members of the panel will be furnished upon request.  Your allegations of error and injustice were reviewed in accordance with administrative regulations and procedures applicable to the proceedings of this Board.  Documentary material considered by the Board consisted of your application, together with all material submitted in support thereof, relevant portions of your naval record, and applicable statutes, regulations, and policies. 
 
Regarding your request for a personal appearance, the Board determined that a personal appearance with or without counsel will not materially add to its understanding of the issues involved.  Therefore, the Board determined that a personal appearance was not necessary and considered your case based on the evidence of record. 
 
You request reconsideration of the Board’s previous decision of case NR20190002675 in which you sought a Purple Heart Medal (PH) for an injury sustained during the inspection and removal of a cache of ammunition found near Samarra, Iraq on 19 December 2006.  You were examining a munition you found and a brown oily liquid spilled on your left forearm which resulted in a 6”x3” wound that eventually scarred.  You assert that the previous Board determined that there was not enough evidence that a medical officer treated you for a Chemical Agent (Mustard) burn, and therefore declined to award the PH.  You provided a sworn statement from the medical officer who treated you in Iraq for the Board’s consideration along with previously submitted documentation. 
The current Board noted the previous Board concluded that you were exposed to some type of chemical agent on 19 December 2006, but that the resultant injury did not meet the Purple Heart threshold.  The current Board examined the new matters provided in your reconsideration application including the statement of the Field Surgeon who was deployed with the      at the time you were injured.  The Field Surgeon stated that he does not have records from that deployment but he does recall treating at least one patient for exposure to probable mustard gas and you were that individual.  The Field Surgeon stated that he reviewed the medical records you provided and it is his professional opinion that you received the injury in Iraq at the time you were both at the same forward operating base. 
 
As part of the review process, the Navy Department Board of Decorations and Medals issued an Advisory Opinion dated 24 July 2020.  The Advisory Opinion reviewed the statement of the Field Surgeon and commented that the “statement does not certify that the nature or severity of the exposure necessitated treatment by a medical officer.”  The Advisory Opinion concluded that the statement did not substantiate that any significant treatment was rendered, and found that based on the totality of evidence, the PH is not warranted in this case.  The Advisory Opinion was provided to you, and you were given 30 days in which to submit a response.  When you did not provide a response within the 30-day timeframe, your case was submitted to the Board for consideration.   
 
The Board, in its review of your entire record and application, carefully weighed your request for reconsideration and took into consideration the findings and recommendations of the Advisory Opinion.  The Board also took particular note of the Flight Surgeon’s statement, but concurred substantively with the Advisory Opinion.  The Board once again concluded that while you do appear to have been exposed to some type of chemical agent on 19 December 2006, the resultant injury does not meet the PH threshold.       
It is regretted that the circumstances of your reconsideration petition are such that favorable action cannot be taken.  You are entitled to have the Board reconsider its decision upon the submission of new matters, which will require you to complete and submit a new DD Form 149.  New matters are those not previously presented to or considered by the Board.  In the absence of new matters for reconsideration, the decision of the Board is final, and your only recourse would be to seek relief, at no cost to the Board, from a court of appropriate jurisdiction. 
 
It is important to keep in mind that a presumption of regularity attaches to all official records.  Consequently, when applying for a correction of an official naval record, the burden is on the applicant to demonstrate the existence of probable material error or injustice. 
 
Sincerely,