IN THE CASE OF: BOARD DATE: 7 June 2018 DOCKET NUMBER: AR20160006961 BOARD VOTE: Mbr 1 Mbr 2 Mbr 3 : : : 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: 7 June 2018 DOCKET NUMBER: AR20160006961 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 for injuries sustained during combat operations in support of Operation Iraqi Freedom (OIF). 2. He states: a. While assigned to the Explosive Ordnance Disposal (EOD) Team during OIF his team was maneuvering through the Rasheed District of Iraq neutralizing threats to coalition forces when they secured approximately seven Improvised Explosive Devices (IED), eight Unexploded Ordnances (UXO), and five mortars. b. Upon returning to the Forward Operating Base (FOB) around 2230 hours, all personnel in the truck began to suffer from burning eyes and throbbing headaches. Because of the late hour, they parked the trucks and a decision was made to detonate the explosives the next day. When he awoke the next morning his eyes where blood shot red, he had a rash on his arm, he was nauseous and fatigued. c. He reported to duty and was directed to report immediately to the Troop Medical Center (TMC). He contends that he was treated with penicillin but his treatment was not entered into his medical record. EOD team discovered that one of the UXOs they retrieved was leaking serum gas. Since the incident he has not been the same person. It has affected him greatly. 3. He provides: * a letter of support * deployment roster * three witness statements * Navy Achievement Award Recommendation * DD Form 214 (Certificate of Release or Discharge from Active Duty) * memorandum, U.S. Army Human Resources Command (HRC), dated 26 September 2014 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 enlisted in the Regular Army on 4 January 1999. He served as a transport management coordinator and he completed two deployments to Iraq. 3. His record contains a DA Form 2166-8 (Noncommissioned Officer Evaluation Report (NCOER)) for the period June 2004 through April 2005 that shows he performed the duties of a combat construction noncommissioned officer with Company B, 8th Engineer Battalion, 1st Combat Division, Iraq. During this period he also served as the EOD liaison officer conducting over thirty combat IEDs, UXOs, and cache removal missions. 4. He was retired due to a temporary disability on 28 July 2013. 5. He provides: a. A letter of support, dated 7 May 2007. In this letter Captain P speaks of the applicant's sadness at the tragic loss of a fellow Soldier killed by a rocket attack. His observation of the applicant found that he was respectful, intelligent, an active church member, hard worker and always looking for opportunities to better himself. This same individual provided a witness statement on 13 December 2012. He stated the applicant and another noncommissioned officer experienced headaches, and rashes after being exposed to a serum gas from a chemical round. b. A witness statement, dated 11 May 2007. Warrant Officer G stated the applicant and his platoon sergeant were exposed to a chemical leak round that was brought back to the FOB. They both suffered nausea, redness of the eyes, a small rash, and fatigue. The chemical found in the round was serum gas. c. A witness statement, dated 18 June 2014. Medic, PO, stated that the applicant was treated at the TMC with penicillin for symptoms of burning-red eyes, headaches, nausea and a rash, which began after returning from an EOD, UXO, IED mission. d. His request for award of the Purple Heart, dated 18 June 2014. In his requests he contends that his exposure to a chemical agent during OIF was not documented into his medical records because there were not supposed to be any chemical rounds or agents in Iraq at that time. Had this been reported it would raised red flags throughout the media. 6. The HRC denied his requests for award of the Purple Heart on 26 September 2014, stating that any chemical not released by the enemy does not meet the criteria for award of the Purple Heart. 7. On an unknown date, the Chief, Soldier Programs and Services Division, HRC, denied his request for the Purple Heart. The reason cited was that the diagnosis and treatment records provided by the applicant did not meet the criteria for award of the Purple Heart. REFERENCES: Army Regulation 600-8-22 (Military Awards) states the Purple Heart is awarded for a wound sustained 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 by medical personnel, and the medical treatment must have been made a matter of official record. Examples of enemy-related injuries that clearly justify award of the Purple Heart are: * 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 DISCUSSION AND CONCLUSIONS: 1. The applicant request award of the Purple Heart. 2. The sincerity of his witnesses is not in question, however, neither his exposure to serum gas nor his medical treatment is part of the official record. Further, there is no definitive indication that his exposure was the result of enemy action and not the result of the projectile being damaged upon recovery. Without such corroborating evidence it is not possible to determine the origin of his injury or his eligibility for award of the Purple Heart. 3. To meet the criteria for award of the Purple Heart, an injury caused by hostile action must have been severe enough to require treatment by medical personnel. 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. 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. //NOTHING FOLLOWS// ABCMR Record of Proceedings (cont) AR20160006961 2 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS ABCMR Record of Proceedings (cont) AR20160006961 4 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 2