IN THE CASE OF: BOARD DATE: 19 December 2017 DOCKET NUMBER: AR20160005218 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 IN THE CASE OF: BOARD DATE: 19 December 2017 DOCKET NUMBER: AR20160005218 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. IN THE CASE OF: BOARD DATE: 19 December 2017 DOCKET NUMBER: AR20160005218 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, in effect, correction of his military service records to show he was awarded the Purple Heart and medically discharged. He also requests personal appearance before the Board. 2. The applicant states he served in a combat zone and performed hazardous duty while assigned to transportation units in Vietnam. His military duties required him to handle (i.e., load and unload) the chemical Agent Orange on a regular basis. He states the Department of Veterans Affairs (VA) has granted him service-connection for illnesses and injuries caused by Agent Orange. 3. The applicant provides copies of his VA medical records and seven letters from medical professionals. 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 was inducted into the U.S. Army on 1 February 1967. a. He completed training and was awarded the following military occupational specialties (MOS) – * MOS 61B (Harbor Craft Boatswain) on 10 July 1967 * MOS 57H (Cargo Handler) on 11 December 1967 b. He was promoted to corporal/pay grade E-4 on 23 November 1967. c. He was reassigned overseas to Vietnam on 28 April 1968. He served in Duty MOS 61B2O as a harbor craft boatswain while assigned to – * 97th Transportation Company from 2 May 1968 to 8 September 1968 * 155th Transportation Company from 9 September to 15 January 1969 3. Headquarters, U.S. Army Personnel Center, Fort Lewis, WA, Special Orders Number 19, dated 19 January 1969, released the applicant from active duty not by reason of physical disability effective 19 January 1969. 4. The applicant's DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge) shows he entered active duty this period on 1 February 1967, was honorably released from active duty under the provisions of (UP) Army Regulation (AR) 635-200 (Personnel Separations – Enlisted Personnel), Chapter 5, Section VII, with Separation Program Number 411 (Overseas Returnee), and transferred to the U.S. Army Reserve (USAR) Control Group (Annual Training) to complete his Reserve service obligation. He had completed 1 year, 11 months, and 19 days of total active service this period that included 8 months and 22 days of foreign service. 5. A review of the applicant's military service records failed to reveal evidence that he was referred to a medical evaluation board or physical evaluation board during the period of service under review. 6. A thorough review of the applicant's available military personnel records failed to show he was wounded in action. This review also failed to reveal any orders or other evidence showing he was awarded the Purple Heart. 7. A review of The Adjutant General's Office, Casualty Division's Vietnam Casualty Roster failed to reveal the applicant's name, service number, or social security number. 8. A request for review of the Awards and Decorations Computer-Assisted Retrieval System, an index of general orders issued during the Vietnam era between 1965 and 1973 maintained by the Awards and Decorations Branch of the U.S. Army Human Resources Command, failed to return award orders for the Purple Heart pertaining to the applicant. (Note: The search was conducted using the applicant's name, service number, and social security number.) 9. In support of his application the applicant provides the following documents. a. Paces Perry Hospital medical record that shows the applicant underwent a procedure for bladder neck obstruction on 17 April 1984. The post-operative diagnosis was bladder neck obstruction with polypoid lesion in the midline. b. VA Medical Center (VAMC) Atlanta, Decatur, GA, medical records covering the period 1 March to 23 March 2004. The records show the applicant handled drums of Agent Orange for several months; however, he was not directly involved in Operation Ranch Hand. He was diagnosed with mildly slowed distal sensory latencies, consistent with sensory neuropathy; distal sensory polyneuropathy; and restless leg syndrome. c. VAMC Atlanta, Decatur, GA, letter, dated 21 April 2004, that shows S___ C____, Medical Doctor (M.D.), notified the applicant the studies he underwent showed an abnormality on his laboratory test (Epstein-Barr virus titers; the three antibodies the test looks for are: viral, capsid, antigen) that should be evaluated by his personal health care provider. d. A letter from R__ S_____, M.D., to the Veteran's Law Group, dated 27 May 2008, that shows she treated the applicant for plasmacytoma of the L2 spine. She stated, "As you know, there has been a reported connection between exposure to Agent Orange and the development of multiple blood disorders, including multiple myeloma and associated syndromes. Although I cannot definitively say that Agent Orange caused the palsmacytoma/myeloma, there is a likely connection." e. South Fulton Dermatology Associates, LLP, East Point, GA, letter, dated 13 August 2009, that shows J___ T. S____, M.D., noted the applicant has been filing claims (since 1975) for cutaneous eruptions on various portions of his body. His evaluation determined the condition is chronic and temporally coincides with the time of the applicant's service in the Vietnam War. He stated, "It's in my professional opinion that because of this temporal relationship, that the patient's claim for a relationship to Agent Orange exposure be considered valid." f. An undated letter from J___ T. S___, M.D. (the applicant's dermatologist) to the applicant's congressman. He provided a history of the applicant's skin conditions and the medical treatment he received at the VAMC. He stated, "It is my professional opinion that the best diagnosis is that of a dermatosis of unknown etiology, with onset temporally associated with his military service dating back to 1970." g. Primary Care Specialists, LLC, Atlanta, GA, letter, dated 29 August 2012, that shows C___ S____, M.D., noted the applicant has diagnoses of hypothyroidism and glucose intolerance with onset in June 2012. The medical doctor opined, "The diagnoses could plausibly be from exposure to Agent Orange." h. Georgia Cancer Specialists, Northside Hospital Cancer Institute, dated 3 June 2014, that shows, in pertinent part, R___ S____, M.D., wrote: "To Whom It May Concern: Multiple myeloma is not curable by normal standards of treatment." i. Physicians Care Center of Atlanta, Atlanta, GA, letter, dated 7 July 2016, that shows J___ I____, M.D., stated the applicant was in Operation Ranch Hand and exposed to Agent Orange, and he has diagnoses of hypothyroidism and polyneuropathy. He cited evidence related to veterans of Operation Ranch Hand that linked both diseases to Agent Orange. 10. In the processing of this case, an advisory opinion was obtained from the Army Review Boards Agency (ARBA) medical staff, dated 23 August 2017. a. The ARBA senior medical advisor reviewed the applicant's available military personnel and medical records. b. The medical opinion was based on the information and records provided by the ABCMR and the applicant in his application to the Board. The applicant's paper Service Treatment Record was not available and records were not available in the Department of Defense electronic medical record (AHLTA). c. The senior medical advisor provided a summary of the VA's efforts (from 14 January 1972 to 1 February 2011) to obtain medical information pertaining to the applicant's medical treatment during his military service. The efforts to obtain the records were mostly unsuccessful. d. The senior medical advisor reviewed the medical records submitted by the applicant and provided an extensive description of the applicant's clinical encounters, medical examinations, and laboratory results. (1) He noted the following VA service-connected conditions – * Hodgkin's disease – 100 percent (%) * post-traumatic stress disorder (PTSD) – 100% * paralysis of all radicular nerve groups – 40% * paralysis of sciatic nerve (times 2) – 40% (each) * paralysis of anterior crural nerve – 20% * hypertensive vascular disease – 10% (2) He noted, in pertinent part, the following VA medical record entries – * EMG/NCV (electromyogram/nerve conduction velocities) on 8 October 1997 for history of low back pain since 1970 * applicant handled drums of Agent Orange for several months, though he was not directly involved in Operation Ranch Hand * no mention of signs or symptom of peripheral neuropathy during the period 1969 to 1997 (3) He also provided a summary of his review of the medical records and letters the applicant submitted in support of his application to the Board. (4) The ARBA senior medical advisor noted: "Exposure to ionizing radiation, including radiotherapy that may have been used to treat the applicant's Hodgkin's disease, predisposes a person to development of myeloma and plasmacytoma (a malignant growth of plasma cells that grows as a single tumor and causes bone destruction such that the patient comes to clinical attention due to bone pain before there is a sign of any other disease elsewhere in the body). e. His review of the VA Joint Legacy Viewer revealed 30 listed problems, including PTSD, major depression, systemic lupus erythematosus, sleep apnea, chest pain, chronic low back pain, joint pain, rash/dermatitis, hypertension, hypothyroidism, polyneuropathy unspecified plasmacytoma (in remission), and others. The applicant is currently VA service connected at 100% overall. f. The ARBA senior medical advisor found that the applicant's available records do not reasonably support him having had PTSD or another boardable medical condition at the time of his military service. g. He found the applicant met medical retention standards for physical, medical, and/or behavioral conditions in accordance with (IAW) AR 40-501 (Standards of Medical Fitness), chapter 3 (Medical Fitness Standards for Retention and Separation, Including Retirement), and following the provisions set forth in AR 635-40 (Physical Evaluation for Retention, Retirement, or Separation) that were applicable to the applicant's era of service. h. The ARBA senior medical advisor concluded the applicant's medical conditions were duly considered during his medical separation processing. His review of the available documentation found no evidence of a medical disability or condition which would support a change to the character or reason for the discharge in this case. 11. On 25 August 2017, the applicant was provided a copy of the ARBA advisory opinion to allow him the opportunity (15 days) to submit comments or a rebuttal. There is no evidence of a response from the applicant. REFERENCES: 1. AR 600-8-22 (Military Awards) provides policy, criteria, and administrative instructions concerning military awards and decorations. It shows the Purple Heart is awarded to any member who was wounded or killed in action against an enemy or as a result of hostile action. a. A wound is defined as an injury to any part of the body from an outside force, element, or agent sustained in action in the face of the armed enemy or as a result of a hostile act of such enemy. b. In order to support awarding a member the Purple Heart, it is necessary to establish the wound for which the award is being made required treatment by medical personnel and the medical treatment for the wound or injury received in action must have been made a matter of official record. c. The regulation provides examples of injuries or wounds which clearly do not justify award of the Purple Heart that includes, in pertinent part, "disease not directly caused by enemy agents." 2. AR 635-40 sets forth policies, responsibilities, and procedures in determining whether a Soldier is unfit because of physical disability to reasonably perform the duties of his or her office, grade, rank, or rating. In each case, it is necessary to compare the nature and degree of physical disability present with the requirements of the duties the Soldier may reasonably be expected to perform because of his or her office, grade, rank, or rating. Separation by reason of disability requires processing through the disability evaluation system. a. Disability compensation is provided to Soldiers whose service is interrupted and who can no longer continue to reasonably perform because of a physical disability incurred or aggravated in service. It also allows Soldiers to appeal the decisions of the various boards and agencies involved in determining a Soldier's disability ratings. b. The Army's determination of a Soldier's physical fitness or unfitness is a factual finding based on 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 be rated as the condition(s) exist(s) at the time of the physical evaluation board hearing. The VA (and some other government agencies) may find a Soldier unfit by reason of a service-connected disability and may even assign a disability rating after separation. Such ratings are based on 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. 3. Title 38, U.S. Code, sections 1110 and 1131, permit the VA to award compensation for disabilities which were incurred in or aggravated by active military service. However, an award of a VA rating does not establish error or injustice on the part of the Army. The VA, which has neither the authority nor the responsibility for determining physical fitness for military service, awards disability ratings to veterans for conditions that it determines were incurred during military service and subsequently affect the individual's civilian employability. Furthermore, the VA can evaluate a veteran throughout his or her lifetime, adjusting the percentage of disability based upon that agency's examinations and findings. The Army rates only conditions determined to be physically unfitting at the time of discharge, thus compensating the individual for loss of a career; while the VA (and some other government agencies) may rate any service-connected impairment, including those that are detected after discharge, in order to compensate the individual for loss of civilian employability. 4. AR 15-185 (ABCMR) prescribes policies and procedures for correction of military records by the Secretary of the Army, acting through the ABCMR. Paragraph 2-11 states that applicants do not have a right to a hearing before the ABCMR. The Director of the ABCMR or an ABCMR panel may grant a formal hearing whenever justice requires. DISCUSSION: 1. The applicant contends that his military service records should be corrected to show he was awarded the Purple Heart and that he was medically discharged based on unfitting medical conditions. 2. The applicant's request for a personal appearance hearing was carefully considered. However, by regulation, an applicant is not entitled to a hearing before the ABCMR. Hearings may be authorized by a panel of the ABCMR or by the Director of the ABCMR. In this case, the evidence of record and independent evidence provided by the applicant are sufficient to render a fair and equitable decision at this time. 3. The applicant's military service records do not contain any evidence that he was wounded or injured in action as a result of a hostile act by the enemy or that any such wound or injury required treatment by medical personnel and that the treatment was made a matter of official record. a. The applicant contends, in effect, that his service-connected illnesses qualify him for award of the Purple Heart because he performed hazardous duty that required him to handle the chemical Agent Orange on a regular basis. b. The evidence of record shows the VA has granted the applicant disability for several service-connected conditions. The VA rating decision is based, in part, on the use of Agent Orange as a defoliant by U.S. Armed Forces during the Vietnam War. It is noted that the VAMC Atlanta confirmed the applicant handled drums of Agent Orange for several months; however, he was not directly involved in Operation Ranch Hand (i.e., the mission to disburse the chemical). c. The evidence of record shows the Purple Heart is authorized for disease or illness directly caused by enemy agents. d. The evidence of record fails to satisfy the strict criteria for award of the Purple Heart. 4. There is no evidence of record that shows the applicant had an unfitting physical or medical condition during his military service that precluded him from reasonably performing the duties of his office, grade, rank, or rating. 5. The applicant was released from active duty upon completion of his active duty service obligation, not by reason of physical disability, and he was transferred to the USAR to complete his Reserve service obligation. The available records indicate he had the ability to perform the duties of his grade/rank and MOS at that time. 6. The ARBA senior medical advisor conducted an extensive review of the applicant's medical records and concluded that his medical conditions were duly considered during his medical separation processing. His review found no evidence of a medical disability or condition which would support a change to the character or reason for the discharge in this case. 7. The applicant's administrative separation UP AR 635-200, chapter 2, based on completion of required active service, was in compliance with all requirements of law and applicable regulations with no indication of procedural errors which would have jeopardized his rights. In addition, the type of discharge, separation code, and narrative reason are appropriate and correct. 8. Both the statutory and regulatory guidance provide that the Army rates only conditions determined to be physically unfitting that were incurred or aggravated during the period of service. Furthermore, the condition(s) can only be rated to the extent that the condition(s) limit(s) the performance of duty. The VA (and some other government agencies) provides compensation for disabilities which it determines were incurred in or aggravated by active military service, including those that are detected after discharge, and which impair the individual's industrial or social functioning. //NOTHING FOLLOWS// ABCMR Record of Proceedings AR20150000953 Enclosure 1 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS ABCMR Record of Proceedings (cont) AR20160005218 2 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 1 ABCMR Record of Proceedings (cont) AR20160005218 9 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 2