IN THE CASE OF: BOARD DATE: 14 January 2016 DOCKET NUMBER: AR20150005429 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 reconsideration of his earlier request for award of the Purple Heart for injuries suffered during operations at the Tuwaitha Nuclear Research and Development Center (TNRC) in Iraq in June 2003. 2. The applicant states: a. He was unable to find personnel who had firsthand knowledge of the incident in a timely fashion. Without resources and with such a significant time lag since the original event, it took considerable time to find people who could corroborate the information that was contained in the original submission for the Purple Heart. However, he is providing a statement from a colonel who was the senior health physicist on his team and was also the individual who conducted the test to verify the existence of the chlorine gas in the area in which he and a staff sergeant had been working. He was also a witness to their condition as they were evacuated from the warehouse that contained the chlorine gas. b. He recently located the original doctor who examined him in Iraq and who wrote up chlorine gas exposure in his redeployment package that he submitted in his original application. However, the doctor was unable to provide any additional information since so much time had transpired since the original event. He is still trying to locate the staff sergeant, since retired, for two reasons. First, he too could substantiate the exposure during their course of operations and second, should his appeal be successful, he would recommend that the staff sergeant should also submit for consideration since he was exposed at the same time. c. Based on the additional evidence he provided, it is clear that chlorine gas was present in the area unbeknownst to the team members and he was exposed. His injuries continue to affect his daily life. d. He appreciates that at the time of his injuries, Army regulations required that injuries involving a chemical compound had to be suffered during an actual gas attack. However, their team was conducting operations never before conducted on the battlefield and the risks were completely unknown at the time of their deployment. There is no clear way to determine if the Iraqi forces that fled the area as U.S. Forces approached had intentionally created this as an ambush to injure American service members or if locals had carelessly created the hazardous environment that his team walked into. In either case, the results remain the same, two American Soldiers were injured during the conduct of their assigned operations through no fault or negligence on their part. e. He finds it interesting that there is consternation today over the use of chlorine gas in the conflict against the Islamic State of Iraq and Syria. The gas represents a clear danger to humans if exposed. 3. The applicant provides a memorandum from a health physicist (colonel), dated 2 June 2014. CONSIDERATION OF EVIDENCE: 1. Incorporated herein by reference are military records which were summarized in the previous consideration of the applicant's case by the Army Board for Correction of Military Records (ABCMR) in Docket Number AR20120008615 on 13 November 2012. 2. He provided a letter from a health physicist, dated 2 June 2014, which was not previously considered by the Board. This letter is new evidence that warrants consideration by the Board at this time. 3. Having prior service, the applicant was appointed as a Regular Army commissioned officer on 6 June 1979. He was promoted to colonel (COL) effective 1 July 2002. 4. He served in Kuwait/Iraq from on or about April 2003 to on or about July 2003. He was a member of the Nuclear Disablement Team attached to the 75th Exploitation Task Force (75th XTF) at Baghdad International Airport from 7 May to 25 June 2003. 5. He applied to the U.S. Human Resources Command (HRC) for award of the Purple Heart by submitting a self-authored DA Form 4187 wherein he contended: * he was Head of Delegation for Non-Proliferation Treaty inspection by the International Atomic Energy Agency at the Iraqi Nuclear facility in Tuwaitha attached to the 75th XTF for the purpose of inspections * on 11 June 2003 during looting, someone spilled an "EMIS [electromagnetic isotope separation process]" solution onto some uranium tetrachloride that resulted in producing hydrochloric acid and chlorine gas * he and others experienced burning sensations in the nose and throat, dizziness, and slight disorientation * they were immediately evacuated to fresh air and donned their protective masks * they reported the issue to their physician and, although there were no immediate symptoms, there were long-term effects * he was ultimately referred to a pulmonary specialist who confirmed bronchial damage as a result of inhalation of chlorine gas resulting in moderate asthma 6. With his request, he also submitted: * a self-authored daily report describing their daily activities, findings, and observations * a post-deployment health assessment, dated 7 October 2003, indicating he was exposed to chlorine, fluoride gas, and hydraulic acid 7. On 17 October 2005, HRC denied his request. 8. He retired on 31 December 2005 and he was placed on the Retired List in the grade of COL on 1 January 2006. He completed 28 years, 5 months, and 26 days of creditable active service. 9. On 13 November 2012, the ABCMR denied his request for award of the Purple Heart. The Board determined the evidence presented was insufficient for award of the Purple Heart. 10. As new evidence, he provided a letter from a health physicist, dated 2 June 2014, who states: a. He served as the health physicist on the Nuclear Disablement Team deployed with the applicant to Iraq and conducted daily operations with him at the TNRC near Baghdad. He designed and implemented the personal protective equipment and safety procedures used by the team. b. On 11 June 2003, he observed the applicant and a staff sergeant enter a looted building at TNRC for the purpose of packaging various compounds of uranium spilled in large piles on the floor. They wore the standard protective ensemble, to include a Tyvek suit, sealed gloves and booties, and a powered air purifying respirator with mask filter. c. He observed the staff sergeant exit the building, and, at the hotline, complain of dizziness, burning inside his throat and nose, and difficulty breathing. He was disoriented also. Immediately, he observed the applicant exit the building and complain of the same symptoms. Their masks were immediately removed, Tyvek suits doffed, and fresh water provided to them. No burns were visible on their bodies and their signs and symptoms disappeared after 10-15 minutes. d. He entered the building wearing an M40 mask and tested the air with a Draeger Hazardous Material Simultest kit. The kit detected hydrochloric acid and chlorine gas. A follow-on team broke the windows out, the building was ventilated, and work resumed using M40 masks. e. He believes the applicant's and the staff sergeant's symptoms were caused by chlorine gas inhalation. The masks used by the applicant and the staff sergeant were designed to filter particulates/organic vapors/acid gas, but not high concentrations of chlorine gas. The likely cause was looters emptying liquid-solutions and mixing together various uranium compounds, which reacted with the hydrogen in the air or in the liquid solutions. Empty bottles of liquid solutions were discovered subsequently under the piles of uranium. 11. Army Regulation 600-8-22 (Military Awards) provides that 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 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. a. A wound is defined as an injury to any part of the body from an outside force or agent sustained under one or more of the conditions applicable to the Purple Heart. A physical lesion is not required; however, the wound for which the award is made must have required treatment by medical personnel and records of medical treatment for wounds or injuries received in action must have been made a matter of official record. b. Examples of enemy-related injuries that clearly justify award of the Purple Heart are as follows: * injury caused by enemy bullet, shrapnel, or other projectile created by enemy action * injury caused by enemy placed mine or trap * injury caused by enemy released chemical, biological, or nuclear agent * injury caused by vehicle or aircraft accident resulting from enemy fire * concussion injuries caused as a result of enemy generated explosions c. Examples of injuries or wounds which clearly do not justify award of the Purple Heart are as follows: * frostbite or trench foot injuries * heat stroke * food poisoning not caused by enemy agents * chemical, biological, or nuclear agents not released by the enemy * battle fatigue * disease not directly caused by enemy agents * accidents, to include explosive, aircraft, vehicular, and other accidental wounding not related to or caused by enemy action * self-inflicted wounds * except when in the heat of battle and not involving gross negligence * post-traumatic stress disorders * jump injuries not caused by enemy action DISCUSSION AND CONCLUSIONS: 1. The applicant requests award of the Purple Heart for injuries suffered during operations at the TNRC in Iraq in June 2003. 2. In October 2005, HRC denied his request for award of the Purple Heart. 3. Army Regulation 600-8-22 establishes basic requirements for award of the Purple Heart and all other awards. The Purple Heart requires evidence to verify the wound was the result of hostile action, treatment of the wound by military medical personnel, and documentation of the wound in official records. 4. The eyewitness statement from the health physicist who believes the applicant's symptoms in June 2003 in Iraq were caused by chlorine gas inhalation was carefully considered. However, there is no evidence showing the applicant was wounded or injured by an enemy-released chemical, biological, or nuclear agent in Iraq. Under clearly established regulatory guidelines, there is insufficient evidence in which to base awarding him the Purple Heart. 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 the overall merits of this case are insufficient as a basis to amend the decision of the ABCMR set forth in Docket Number AR20120008615, dated 13 November 2012. _______ _ 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) AR20150005429 3 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1 ABCMR Record of Proceedings (cont) AR20150005429 2 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1