IN THE CASE OF: . BOARD DATE: 1 October 2020 DOCKET NUMBER: AR20190007556 APPLICANT REQUESTS: the award of the Purple Heart. APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: * DD Form 149 (Application for Correction of Military Record), dated 19 March 2019 * self-authored statement, dated 20 March 2019 * Standard Form 600 (Chronological Record of Medical Care), dated 3 February 1994 * Standard Form 520 (Electrocardiographic Record), dated 3 February 1994 * Landstuhl Army Regional Medical Center laboratory results, dated 19 April 1994 * DD Form 214 (Certificate of Release or Discharge from Active Duty) * Department of Veterans Affairs (VA), Board of Veterans Appeals Decision, dated 27 April 2012 * Medical Progress Notes, Dartmouth-Hitchcock Cancer Center, dated 31 January 2014 * letter, Dartmouth-Hitchcock Cancer Center, dated 2 October 2014 * VA Rating Decision, dated 20 November 2014 * Congressional Correspondence, dated 15 January 2019 * Email, dated 26 February 2019 * letter, Awards and Decorations Branch, U.S. Army Human Resources Command (HRC), dated 5 March 2019 FACTS: 1. The applicant did not file within the three-year time frame provided in Title 10, United States Code, section 1552(b); however, the ABCMR conducted a substantive review of this case and determined it is in the interest of justice to excuse the applicant's failure to timely file. 2. The applicant states: a. He was exposed to enemy related chemical agents as a result of Iraqi forces igniting the Kuwaiti oil fields during the Persian Gulf War. By igniting the oil wells, Iraqi enemy forces turned the fires into instruments of war, directly releasing benzene, as well as other chemical agents into the air creating the necessary conditions to cause injury. His injury of composite follicular and diffuse large B-cell lymphoma was caused, at least in part, by exposure to benzene released from the fires. b. According to ABCMR opinions, latent cancer is a cognizable injury. c. His military records show initial treatment on three occasions in early 1994 for a skin disorder and general health concerns. The injury manifested itself years later when it was diagnosed as lymphoma in 2014. d. The original conditions for which he sought medical attention and the lymphoma resolved only after undergoing extensive chemotherapy, including salvage therapy, a stem cell transplant, and radiation from January 2014 to February 2015. Perhaps not a coincidence, the skin condition that first appeared in 1992 finally resolved after the stem cell transplant, as did the general improvement of his overall health. In regard to the requirements of Army Regulation 600-8-22 (Military Awards), paragraph 2-8f, it is impossible to say to what degree the enemy caused the injury, but on this issue, he requests the Board to consider the extensive treatment the injury required. e. On 15 January 2019, HRC incorrectly concluded that his request failed to meet the requirements of Army Regulation 600-8-22, paragraph 2-8(e). HRC largely denied the request for award of the Purple Heart because HRC wrongly asserted that the injury in question was Gulf War Syndrome when in fact the actual injury is cancer. f. Upon a request for reconsideration, on 5 March 2019, HRC appears to acknowledge that cancer is a recognizable injury for award of the Purple Heart, but denied the request nonetheless because his medical records do not show a connection between the injury and enemy action. This conclusion apparently ignores the medical opinion included in the submission to HRC connecting the injury with the oil fires started by the Iraqi forces during the Gulf War. g. A decision from the Deputy Assistant Secretary of the Army described a much broader definition of "enemy agent" and stated that, "The applicable regulatory framework implies a requirement that the wound result from an affirmative offensive action initiated by an opposing military actor" and that the chain of causation "contemplate[s] a force or energy initiated by the enemy or more broadly, someone other than the injured Soldier himself." This interpretation comports with the definition of "wound" in Army Regulation 600-8-22. h. The VA medical documents are the basis of a link between enemy actions and his injury and he remains under the care of the VA. i. HRC's letter states his injury falls within the non-cognizable injuries under Army Regulation 600-8-22, paragraph 2-8(h). It should not be in dispute that the Iraqi forces igniting the Kuwaiti oil wells and the release of benzene with other chemicals represents "an offensive action initiated by an opposing military actor." j. There is a direct and unbroken causation between the injury and the release of chemicals. HRC failed to consider that "agent" could be construed in broader terms as "a force or energy initiated by the enemy." k. In November 2014 by awarding him a 100-percent disability service rating, the VA recognized the connection between the injury and oil fires, as well as other exposures. l. The medical opinion of his oncologist and VA Citation Number 122XXXX, dated 27 August 2012, show the necessary nexus between the injury and enemy action. m. His military medical records show visits with Army medical officers multiple times in early to mid-1994 for treatment of a skin condition and general health concerns that first presented subsequent to the tour in Operation Desert Storm. His health continued to decline after leaving active duty, culminating in frequent visits to his primary physician and specialists from 2012 to 2014. n. His unit arrived in Saudi Arabia just two months after the last fires were extinguished and the effects of the fires lingered for several months. 3. On 26 May 1990, the applicant was appointed as a Reserve commissioned officer. He was ordered to active duty on 30 September 1990. 4. He served in Southwest Asia from 28 January 1992 to 27 June 1992. 5. He provided copies of his: a. Standard Form 600, dated 3 February 1994, that shows he was treated for chest/shoulder pain. b. Standard Form 520, dated 3 February 1994, that shows he was given an electrocardiographic examination. His summary serial changes, and implications, in part, shows "sinus bradycardia." c. Landstudl Army Regional Medical Center lab test result, dated 19 April 1994, that show his glucose, cholesterol, and triglyceride levels. His specimen was listed as slightly lipemic. 6. On 1 September 1995, he was honorably released from active duty. His DD Form 214 for this period does not show award of the Purple Heart. 7. The applicant referenced a previous ABCMR Record of Proceedings, ABCMR Docket Number AR2004XXXXXX, dated 2 September 2004, which denied an applicant award of the Purple Heart. The Board determined the evidence showed that the applicant had medical conditions caused by his exposure to chemical agents during his service in Vietnam. There was no evidence, however, that the diseases that he now had were caused by enemy released chemical agents. To the contrary, it appeared that his injuries resulted from exposure to Agent Orange and other chemicals released in Vietnam by United States forces. Consequently, because there was insufficient evidence to show that he was wounded as a result of enemy action, he was not entitled to a second award of the Purple Heart. 8. He provided copies of: a. a VA Board of Veteran's Appeals decision, Citation Number 122XXXX, dated 27 August 2012, wherein the VA granted disability benefits on appeal to a Soldier for service connection for b-cell lymphoma and chronic lymphocytic leukemia (CLL) with fatigue, headache, and rashes. The Soldier served in Southwest Asia from August 1990 to March 1991. The decision shows the Army provided, through the veteran, the results of a study regarding exposure to smoke from oil well fires in Iraq and Kuwait. The Soldier's b-cell lymphoma and CLL were determined to be related to in-service exposure to environmental hazards in Southwest Asia. b. five pages of Progress Notes from Dartmouth-Hitchcock Cancer Center, dated 30 January 2014, showing treatment progress over six cycles for follicular lymphoma grade 3B with extensive abdominal lymphadenopathy, neck lymphadenopathy, and possible parotid gland involvement. c. a letter from Dartmouth-Hitchcock Cancer Center, dated 2 October 2014, wherein his provider stated he had been under his care since 17 January 2014 and opined he could have developed diffuse large B-cell lymphoma as a result of exposures that occurred during his tour of duty during the Gulf War from 28 January 1992 to 1 July 1992. He further stated the applicant was younger than the median age of persons (age 60) who develop lymphoma; he was exposed to benzene; his unit area was periodically sprayed with pesticides that could have contained agents contributing to his condition; his exposure to depleted uranium could be a contributor, and his multiple environmental exposures had significantly increased his risk for developing a lymphoma. It was his provider's belief that a causal relationship between the applicant's environmental exposure incurred during the Gulf War and his diagnosis of non- Hodgkin's lymphoma was very probable, especially in light of the absence of other risk factors, including family history. d. his VA rating decision letter, dated 20 November 2014, which granted him a 100-percent disability rating for benefits for B-Cell lymphoma and follicular lymphoma. e. Deputy Assistant Secretary of the Army (Review Boards) letter to the United States District Court for the District of Columbia, dated 19 December 2018, wherein this official responded to an order from the U.S. District Court to explain a 26 October 2016 Board decision on another case decided in 2018 (AR2018XXXXXXX), regarding an application for award of the Purple Heart. This official stated, in part: (1) The facts in SSG [Staff Sergeant] J____ B____'s case indicate that he was injured when he leapt over a desk to take cover and, in doing so, dislocated his shoulder. Consequently, the specific issue presented is whether these particular circumstances indicate an injury resulting from an outside force or agent and whether there is a sufficient degree of enemy (in this case, terrorist) causation relative to the injury. The applicable regulatory framework implies a requirement that the wound result from an affirmative offensive action initiated by an opposing military actor. (2) As examples for qualifying injuries, the regulation cites injuries caused by "enemy bullet, shrapnel, or other projectile created by enemy action;" caused by "enemy-placed trap or mine;" or caused by "enemy-released chemical, biological or nuclear agent." These examples all contemplate a force or energy initiated by the enemy or, more broadly, someone other than the injured Soldier himself. (3) Specifically excluded from the regulation's qualifying injury criterion are "frostbite;" "trench foot or immersion foot;" "heat stroke;" "food poisoning not caused by enemy agents;" "chemical, biological, or nuclear agents not released by the enemy;" "battle fatigue;" and "disease not directly caused by enemy agents." Thus, the regulation excludes injuries not directly caused by the enemy even though the injuries might be severe and might have been sustained in a kinetic combat environment. (4) When applied to the facts and circumstances of this case, these provisions do not immediately suggest that SSG B____'s injury satisfies the criteria for a qualifying wound. The force or agent that separated SSG B____'s shoulder was the force he himself exerted in order to leap or dive to the floor to take cover. Although SSG B____ would not have dived to the floor but for the terrorist's attack, the greater weight of the evidence indicates that SSG B____'s injury resulted from his effort to take cover in reaction to the gunfire he heard emanating from outside the building and outside the office that he and others were occupying. Consequently, with regard to SSG B____'s separated shoulder, it is difficult to conclude that there existed a high degree of enemy causation or that the injury was inflicted by an outside force. (5) The regulation specifically excludes "self-inflicted wounds" from consideration for the Purple Heart, but it does make an allowance if such wounds are sustained "in the heat of battle and not involving gross negligence." Although this provision might appear to cover SSG B____'s injury, the phrase "self-inflicted wound" implies an accidental discharge of one's own weapon. In this regard, a separated shoulder from a tactical dive to the ground could not plausibly be deemed as "self- inflicted" any more than could a broken leg suffered during a tactical leap into a foxhole. Furthermore, at the time he was injured, SSG B____ had not yet entered the heat of battle. Consequently, it is my determination that SSG B____'s injury does not fit within this particular exception." f. his VA rating decision letter, dated 21 December 2018, that shows his monthly compensation was adjusted and he had a 100 percent combined service-connected disability rating. 9. The applicant provided the following Congressional correspondence: a. a letter from the Chief, Awards and Decorations Branch, HRC, dated 15 January 2019, that shows the applicant's member of Congress was advised his award of the Purple Heart was denied. This official stated that researchers had been unable to link the symptoms of those who served in Operation Desert Shield/Desert Storm to any particular disease or biological agent, although the Government had acknowledged the illnesses were real. However, the current laws and Department of Defense policy, which govern award of the Purple Heart, did not officially consider Gulf War Syndrome and related conditions to fulfill the criteria for this award. b. an email, dated 26 February 2019, from the applicant's member of Congress to an unidentified source [Awards and Decorations Branch, HRC] wherein he requested clarification on why the condition of Gulf War Syndrome and related conditions were used to fulfill the requirement for award of the Purple Heart when the applicant's lymphoma that developed from his in-service exposures was used as qualifying criteria along with supporting evidence. c. a letter from the Chief, Awards and Decorations Branch, HRC, dated 5 March 2019, which responded to the 29 February 2018 Congressional email. This official stated this office remained unable to act favorably in this matter and as indicated in previous correspondence, in order to approve an award of the Purple Heart, medical documentation must clearly link a qualifying wound or injury to enemy action. Additionally, Army Regulation 600-8-22, paragraph 2-8h, listed a number of wounds/injuries that are not considered to be qualifying for an award of the Purple Heart. Chemical, biological, or nuclear agents not released by the enemy, as well as diseases not directly caused by enemy agents are specifically listed as wounds or injuries that do not justify award of the Purple Heart. The applicant was advised to petition the ABCMR if he found the response to be unfair or unjust. BOARD DISCUSSION: 1. After reviewing the application and all supporting documents, a majority of the Board found that relief is not warranted. 2. The majority of the Board agreed that the criteria governing the Purple Heart do not authorize the award based on disease that may have resulted from exposure to toxins in a combat environment. While the applicant's lymphoma may have been caused, in part, by exposure to toxins released by oil well fires, the majority determined there is insufficient evidence to support a conclusion that his disease meets the criteria for the Purple Heart. 3. The member in the minority found the applicant's argument and medical evidence compelling, and determined his disease does meet the criteria for award of the Purple Heart. BOARD VOTE: Mbr 1 Mbr 2 Mbr 3 : : :X GRANT FULL RELIEF : : : GRANT PARTIAL RELIEF : : : GRANT FORMAL HEARING :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 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. REFERENCES: 1. Title 10, United States 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 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. 2. Army Regulation 600-8-22 prescribes Army policy, criteria, and administrative instructions concerning individual and unit military awards. Criteria for the Purple Heart stated: a. The Purple Heart is awarded in the name of the President of the United States and, in accordance with Title 10, United States Code, section 1131, effective 19 May 1998, is limited to members of the Armed Forces of the United States who, while serving under competent authority in any capacity with one of the U.S. Armed Services after 5 April 1917, have been wounded, were killed, or who have died or may hereafter die of wounds received under any of the following circumstances: (1) In any action against an enemy of the United States. (2) In any action with an opposing armed force of a foreign country in which the Armed Forces of the United States are or have been engaged. (3) While serving with friendly foreign forces engaged in an armed conflict against an opposing armed force in which the United States is not a belligerent party. (4) As the result of an act of any such enemy of opposing armed forces. (5) As the result of an act of any hostile foreign force. (6) After 28 March 1973, as a result of an international terrorist attack against the United States or a foreign nation friendly to the United States, recognized as such an attack by the Secretary of the Army, or jointly by the Secretaries of the separate Armed Services concerned if persons from more than one Service are wounded in the attack. (7) After 28 March 1973, as a result of military operations while serving outside the territory of the United States as part of a peacekeeping force. (8) Service members who are killed or wounded in action by friendly fire. In accordance with Title10, United States Code, section 1129, for award of the Purple Heart, the Secretary of the Army will treat a service member of the Armed Forces in the same manner as a service member who is killed or wounded in action as the result of an act of an enemy of the United States. (9) Pursuant to Title 10, United States Code, section 1129a, as amended by the Carl Levin and Howard P. “Buck” McKeon National Defense Authorization Act for Fiscal Year 2015, section 571, the award of the Purple Heart for service members killed or wounded in attacks by foreign terrorist organizations, the Secretary of the Army will treat a service member of the Armed Forces who is killed or wounded as a result of an international terrorist attack against the United States. (a) A member described in this subparagraph is a member on active duty who was killed or wounded in an attack by a foreign terrorist organization in circumstances where the death or wound is the result of an attack targeted on the service member due to such service member’s status as a member of the Armed Forces, unless the death or wound is the result of the service member’s willful misconduct. (b) An attack by an individual or entity will be considered to be an attack by a foreign terrorist organization if the individual or entity was in communication with the foreign terrorist organization before the attack and the attack was inspired or motivated by the foreign terrorist organization. (c) The term "foreign terrorist organization" is defined as an entity designated as a foreign terrorist organization by the Secretary of State pursuant to section 219 of the Immigration and Nationality Act (Title 8, United States Code, section 1189). b. Paragraph 2-8e, in effect at the time, stated 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 listed above. A physical lesion is not required. However, the wound for which the award is made must have required treatment, not merely examination, by a medical officer. Additionally, treatment of the wound will be documented in the service member’s medical and/or health record. Award of the Purple Heart may be made for wounds treated by a medical professional other than a medical officer provided a medical officer includes a statement in the Service member’s medical record that the extent of the wounds was such that they would have required treatment by a medical officer if one had been available to treat them. c. Paragraph 2-8f, in effect at the time, stated when contemplating an award of this decoration, the key issue that commanders must take into consideration is the degree to which the enemy caused the injury. The fact that the proposed recipient was participating in direct or indirect combat operations is a necessary prerequisite, but is not sole justification for award. d. Paragraph 2-g, in effect at the time, stated examples of enemy-related injuries which clearly justify award of the Purple Heart are as follows: (1) Injury caused by enemy bullet, shrapnel, or other projectile created by enemy action. (2) Injury caused by enemy-placed trap or mine. (3) Injury caused by enemy-released chemical, biological, or nuclear agent. (4) Injury caused by vehicle or aircraft accident resulting from enemy fire. (5) Concussion injuries caused as a result of enemy-generated explosions. (6) Mild traumatic brain injury or concussion severe enough to cause either loss of consciousness or restriction from full duty due to persistent signs, symptoms, or clinical finding, or impaired brain function for a period greater than 48 hours from the time of the concussive incident. e. Paragraph 2-8h, in effect at the time, stated examples of injuries or wounds which clearly do not justify award of the Purple Heart are as follows: (1) Frostbite (excluding severe frostbite requiring hospitalization from 7 December 1941 to 22 August 1951). (2) Trench foot or immersion foot. (3) Heat stroke. (4) Food poisoning not caused by enemy agents. (5) Chemical, biological, or nuclear agents not released by the enemy. (6) Battle fatigue. (7) Disease not directly caused by enemy agents. (8) Accidents, to include explosive, aircraft, vehicular, and other accidental wounding not related to or caused by enemy action. (9) Self-inflicted wounds, except when in the heat of battle and not involving gross negligence. (10) Post traumatic stress disorders. (11) Airborne (for example, parachute/jump) injuries not caused by enemy action. (12) Hearing loss and tinnitus (for example: ringing in the ears). (13) Mild traumatic brain injury or concussions that do not either result in loss of consciousness or restriction from full duty for a period greater than 48 hours due to persistent signs, symptoms, or physical finding of impaired brain function. (14) Abrasions and lacerations (unless of a severity to be incapacitating). (15) Bruises (unless caused by direct impact of the enemy weapon and severe enough to require treatment by a medical officer). (16) Soft tissue injuries (for example, ligament, tendon or muscle strains, sprains, and so forth). (17) First degree burns. f. Paragraph 2-8c of the current regulation states to qualify for award of the Purple Heart the wound must have been of such severity that it required treatment, not merely examination, by a medical officer. A wound is defined as an injury to any part of the body from an outside force or agent. A physical lesion is not required. (1) Treatment of the wound will be documented in the member’s medical and/or health record. (2) Award may be made for a wound treated by a medical professional other than a medical officer provided a medical officer includes a statement in the member’s medical record that the severity of the wound was such that it would have required treatment by a medical officer if one had been available to provide treatment. (3) A medical professional is defined as a civilian physician or a physician extender. Physician extenders include nurse practitioners, physician assistants, and other medical professionals qualified to provide independent treatment (to include Special Forces medics). Medics (such as combat medics – military occupational specialty 68W) are not physician extenders. (4) A medical officer is defined as a physician with officer rank. The following are medical officers: (a) An officer of the medical corps of the Army. (b) An officer of the medical corps of the U.S. Navy. (c) An officer in the U.S. Air Force designated as a medical officer in accordance with Title 10, United States Code, section 101. g. Paragraph 2-8e, currently in effect, states when contemplating eligibility for the Purple Heart, the two critical factors commanders must consider is the degree to which the enemy or hostile force caused the wound, and was the wound so severe that it required treatment by a medical officer. h. Paragraph 2-8f, currently in effect, states some examples of enemy-related actions which justify eligibility for the Purple Heart are as follows: (1) Injury caused by enemy bullet, shrapnel, or other projectile created by enemy action. (2) Injury caused by enemy emplaced trap, mine or other improvised explosive device. (3) Injury caused by chemical, biological, or nuclear agent released by the enemy. (4) Injury caused by vehicle or aircraft accident resulting from enemy fire. (5) Smoke inhalation injuries from enemy actions that result in burns to the respiratory tract. (6) Concussions (and/or mild traumatic brain injury (mTBI)) caused as a result of enemy-generated explosions that result in either loss of consciousness or restriction from full duty due to persistent signs, symptoms, or clinical finding, or impaired brain function for a period greater than 48 hours from the time of the concussive incident. i. Paragraph 2-8g, currently in effect, states some examples of injuries which do not justify eligibility for the Purple Heart are as follows: (1) Frostbite (excluding severe frostbite requiring hospitalization from 7 December 1941 to 22 August 1951). (2) Trench foot or immersion foot. (3) Heat stroke. (4) Food poisoning not caused by enemy agents. (5) Exposure to chemical, biological, or nuclear agents not directly released by the enemy. (6) Battle fatigue, neuro-psychosis and post-traumatic stress disorders. (7) Disease not directly caused by enemy agents. (8) Accidents, to include explosive, aircraft, vehicular, and other accidental wounding not related to or caused by enemy action. (9) Self-inflicted wounds, except when in the heat of battle and not involving gross negligence. (10) First degree burns. (11) Airborne (for example, parachute/jump) injuries not caused by enemy action. (12) Hearing loss and tinnitus (for example: ringing in the ears, ruptured tympanic membrane). (13) mTBI that does not result in loss of consciousness or restriction from full duty for a period greater than 48 hours due to persistent signs, symptoms, or physical finding of impaired brain function. (14) Abrasions or lacerations (unless of a severity requiring treatment by a medical officer). (15) Bruises or contusions (unless caused by direct impact of the enemy weapon and severe enough to require treatment by a medical officer). (16) Soft tissue injuries (for example, ligament, tendon or muscle strains, sprains, and so forth). //NOTHING FOLLOWS// ABCMR Record of Proceedings (cont) AR20190007556 13 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1