BOARD DATE: 14 June 2016 DOCKET NUMBER: AR20160004792 BOARD VOTE: _________ _______ ________ GRANT FULL RELIEF ________ ________ ________ GRANT PARTIAL RELIEF ________ ________ ________ GRANT FORMAL HEARING ___x____ __x______ __x___ DENY APPLICATION 2 Enclosures 1. Board Determination/Recommendation 2. Evidence and Consideration BOARD DATE: 14 June 2016 DOCKET NUMBER: AR20160004792 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 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. BOARD DATE: 14 June 2016 DOCKET NUMBER: AR20160004792 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 award of the Purple Heart (PH) and a change to his Department of Veterans Affairs Combat Code 1 (no combat disabilities) to Combat Code 2, 3, or 4. 2. The applicant states, in effect, that: a. He has always thought that since he had been in a combat theater that he had a combat status. He was unaware that in his medical records there was a copy of his active duty legacy code. Upon viewing his medical records, he discovered that his Combat Code was 1. b. He is also requesting to be considered for the award of the PH. c. When he entered the Army as a volunteer, he knew that most likely he would be going to Vietnam. What he did not expect or want was to be stationed at a support base camp. He would have rather been on the front lines with the men he went to basic training with. As a young man, he was unaware that he could request reassignment to the front lines. d. He was stationed at Long Binh, Vietnam as a postal clerk, then at Cam Ranh Bay for perimeter guard duty, and later returned to Long Binh. e. He always felt angry and unworthy because he was not in actual combat. f. In March 1972, the Easter Tide Offensive began and everyone was put on high alert. He could see and hear the sounds of gun fire and bombs exploding all around Bien Hoa. At the time, he was unaware that this was the beginning of the end of the war. Had he known, he would have requested to stay in Vietnam instead of returning home where he was hated by everyone, including some of his own family. g. He has carried with him the greatest of remorse for not having been in actual combat or having died with all the other brave men who never made it home. It is for this reason that he has for so many years had thoughts of committing suicide. h. It was for the grace of God and finally marrying his third wife that he did not commit suicide. He had gone through two failed marriages and was on the road to self-destruction. His wife and his child gave him the strength and will to live. i. He was exposed to Agent Orange in Vietnam and has nine other illnesses that he believes warrants a PH. j. He had a stroke in 2008, which should be considered a traumatic brain injury. He received a heart transplant and he has been rated by the VA with a 100 percent disability rating for coronary artery disease as a result of his exposure to Agent Orange in Vietnam. He also received a disability rating for 50 percent due to post-traumatic stress disorder. 3. The applicant provides a self-authored letter, DD Form 214 (Report of Separation from Active Duty), and a VA disability rating decision. 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’s request to correct his Combat Code 1 on his VA Rating Decisional document is outside the purview of this Board. Therefore, this portion of the applicant's request will not be discussed further in this record of proceedings. 3. On 1 April 1971, he enlisted in the Regular Army. 4. A DA Form 20 (Enlisted Qualification Record) shows in: * item 31 (Foreign Service) - he served in the Republic of Vietnam from 6 September 1971 through 11 May 1972 * item 38 (Record of Assignments) - he was assigned to the 56th Army Postal Unit * item 40 (Wounds) – no entries 5. The applicant’s name does not appear on the Vietnam casualty roster. 6. On 5 April 1974, he was honorably released from active duty. He completed 2 years, 11 months, and 29 days of total active service. His DD Form 214 does not show he was awarded the PH. 7. There is no evidence in the available records which shows the applicant was awarded the PH or wounded as a result of hostile action in Vietnam. 8. The applicant provided a letter from the VA that shows he has several service-connected disabilities, two of which are presumed to have been caused by exposure to Agent Orange. REFERENCES: Army Regulation 600-8-22 (Military Awards) provides that the PH 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 PH. b. The regulation also provides for award of the PH 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: 1. There is no evidence of record which shows the applicant 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 PH. 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." Therefore, exposure to Agent Orange cannot be the basis for award of the PH. //NOTHING FOLLOWS// ABCMR Record of Proceedings AR20150000953 Enclosure 1 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS ABCMR Record of Proceedings (cont) AR20160004792 2 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 1 ABCMR Record of Proceedings (cont) AR20160004792 4 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 2