RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:        23 November 2004
      DOCKET NUMBER:  AR2004102653


      I certify that hereinafter is recorded the true and complete record
of the proceedings of the Army Board for Correction of Military Records in
the case of the above-named individual.

|     |Mr. Carl W. S. Chun               |     |Director             |
|     |Ms. Prevolia Harper               |     |Analyst              |


      The following members, a quorum, were present:

|     |Mr. Fred Eichorn                  |     |Chairperson          |
|     |Mr. John T. Meixell               |     |Member               |
|     |Mr. Robert J. Osborn, II          |     |Member               |

      The Board considered the following evidence:

      Exhibit A - Application for correction of military records.

      Exhibit B - Military Personnel Records (including advisory opinion,
if any).

THE APPLICANT'S REQUEST, STATEMENT, AND EVIDENCE:

1.  The applicant requests that her deceased brother, a former service
member (FSM), be posthumously awarded the Purple Heart.

2.  The applicant states, in effect, that the FSM should have been awarded
the Purple Heart because he was serving on active duty and engaged in
combat operations at the time of his death.

3.  The applicant provides a self-authored letter, dated 9 January 2004;
copy of a birth certificate from the State of Florida Office of Vital
Statistics, a DD Form 52-2 (Report of Casualty), dated 27 February 1969; a
copy of a DD Form 52-2, dated 4 March 1969; a statement from a retired
major general, dated 21 December 2003; a copy of a Casualty Notification,
dated 24 February 1969; a copy of three witness statements; and a newspaper
article from the Jacksonville Times Union, dated 7 April 2003.

CONSIDERATION OF EVIDENCE:

1.  The applicant is requesting correction of an alleged error or
injustice, which occurred on 27 February 1969, the date of the final report
of casualty.  The application submitted in this case is dated 11 January
2004.

2.  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 allows the Army
Board for Correction of Military Records (ABCMR) to excuse failure to file
within the 3-year statute of limitation if the ABCMR determines that it
would be in the interest of justice to do so.  In this
case, the ABCMR will conduct a review of the merits of the case to
determine if it would be in the interest of justice to excuse the
applicant’s failure to timely file

3.  The FSM's records show that he enlisted with parental consent on 25
October 1966 for a period of 3 years.  He successfully completed basic
combat and advanced individual training and was awarded the military
occupational specialty 68E20 (Aircraft Rotor and Propeller Repairman).

4.  The FSM's military records show that he arrived in the Republic of
Vietnam on 10 April 1968 and that he was assigned to the 116th Aviation
Company, 269th Aviation Battalion, 12th Aviation Group, 1st Aviation
Brigade.

5.  Item 2C (Casualty Status) of an AGPZ Form 80 (Report of Casualty) shows
that the FSM was a crew chief on a military aircraft that was on combat
mission and that the FSM died due to burns received when the aircraft
crashed.  Item 2a  (Circumstances) contains the entry "unk" [unknown] and
"non-battle."

6.  A DD Form 1300 (Report of Casualty), dated 27 February 1969, shows that
the FSM died on 21 February 1969 in Vietnam from burns received when his
military aircraft crashed.  This form also shows that the casualty status
was "non-battle."

7.  The FSM's records contain a message, dated 18 March 1969 which stated
that the FSM was the crew chief on a combat assault mission and that tail
rotor came loose and tore the tail boom loose which caused the aircraft to
crash and burn.

8. The FSM's records contain a letter, dated 15 August 2003, sent by the
Chief, Military Awards Branch, U.S. Total Army Personnel Command (PERSCOM)
to three members of Congress and a retired U.S. Army major general.  The
letter was in response to inquiries by the above individuals concerning
posthumous awards of the Purple Heart to, among others, the FSM.  The Chief
of the Military Awards Branch stated that the basic criteria for award of
the Purple Heart required that it be awarded to soldiers for wounds or
injuries received as a direct result of enemy action.

9.  The Chief of the Military Awards Branch stated in his letter, that a
careful review had been made of all reports pertaining to the aircraft
crash, which was classified as a non-hostile accident.  He also stated that
the crash investigation concluded that the soldiers were on a combat
assault mission when the tail rotor came loose and tore the tail boom loose
causing the aircraft to crash and burn.

10.  The Chief of the Military Awards Branch continued that the basis of a
determination of hostile or non-hostile classification in helicopter and
aircraft accidents is that the cause of the accident must be directly
attributable to action by the enemy rather than by the mere presence of the
enemy.  He explained that enemy fire on the aircraft must have caused or
directly contributed to the accident.

11.  The Chief of the Military Awards Branch concluded by stating that the
official records indicated that the aircraft crash was an accident and not
the result of enemy action.  The Chief of the Military Awards Branch
further concluded that non-hostile injuries or death incurred in a combat
zone do not entitle an individual to an award of the Purple Heart.

12.  The applicant submitted statements from three former crewmen who were
assigned to the 116th Aviation Company and present when the FSM's
helicopter crashed.  All three statements described the combat mission that
was conducted on 21 February 1969 and that the FSM and his crew where
participating in that mission.  The statements do not provide evidence that
the FSM's helicopter was hit by hostile fire or that the helicopter crashed
as a direct result of that hostile fire.

13.  The applicant (the FSM's sister) submitted a statement, dated 21
December 2003, from a retired Army major general.  In his letter, the major
general stated that he supports the applicant's attempt to obtain a
posthumous award of the Purple Heart for her late brother.  While the
statement described what happened on 21 February 1969, the major general
does not state that he was present when the aircraft crashed or that he
witnessed the aircraft being hit by enemy fire causing it to crash.

14.  The applicant submitted a newspaper article from the Jacksonville
Times-Union, dated 7 April 2003, which stated in effect, that the FSM died
on the afternoon of 21 February 1969, when the four man helicopter gunship
on which the FSM was crew chief, abruptly fell out of the sky while
returning from an afternoon of combat.

15.  The applicant submitted a self-authored statement in which she wrote,
in effect, that over the past ten months, she has learned a lot of what
happened on
21 February 1969.  The applicant further stated that the Assault Helicopter
Company (the FSM's unit) was called upon to complete the mission of support
and extraction by launching gun ships to suppress enemy fire.  The
applicant further stated that all three gun ships took hits from enemy fire
and suffered damage.

16.  The applicant continued that the FSM's aircraft came apart in the air
and burned on impact killing all four crewmembers.  The applicant stated
that it is her belief and that of the other witnesses that the failure of
the aircraft in flight was a result of enemy ground fire received during
the extraction of the friendly forces.

17.  The applicant stated that at the time of the FSM's death, the family
was told only that the FSM died as a result of burns received while on a
non-combat mission.  The applicant further stated that information was
omitted from the accident report regarding the activities of the FSM's
mission and contends that her brother and fellow crewmembers were denied
the Purple Heart.

18.  The applicant noted that both parents served in World War II and the
honor that they wanted for their son was withheld.  The applicant continued
that both parents died never knowing the truth of what happened that day
when the FSM paid the ultimate price in service to our country.

19.  Review of the FSM's records indicate that he may be entitled to
campaign credit, which is not reflected in his military records.

20.  The FSM's service records indicate that he participated in the
following   campaigns:  The Vietnam Counteroffensive Phase IV (2 April 1968
through
30 June 1968), the Vietnam Counteroffensive Phase V (1 July 1968 through
1 November 1969), and the Vietnam Counteroffensive Phase VI (2 November
1968 through 22 February 1969).  The FSM's award of the Vietnam Service
Medal does not show bronze service stars to indicate credit for these
campaigns.

21.  Army Regulation 672-5-1(Military Awards), then in effect, provides, in
pertinent part, that the Purple Heart is awarded to any member of an Armed
Force or any civilian national of the United States who, while serving
under competent authority in any capacity with one of the U.S. armed
services has been wounded, killed, or who has died as a result of 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 a medical officer, and the medical
treatment must have been made a matter of official record.

22.  Army Regulation 600-10 (The Army Casualty System), then in effect,
prescribes policies and procedures for the operation of the Army Casualty
System.  These policies and procedures include casualty reporting, casualty
notification, and survivor assistance.  The regulation, in pertinent part,
states that when reporting a casualty, a determination as to whether the
casualty is "battle", "non-battle," or unknown is required in the initial
report.

23.  A DD Form 173 (Joint Message Form), dated 20 June 1968 from the Chief,
Casualty Division, Washington D.C. to the commanding general of U.S. Army
Vietnam, provided additional guidance in the determination of hostile
action casualties in addition to that provided in Army Regulation 600-10.

24.  Paragraph 3 of this DD Form 173 stated, "The rule that has been
applied in helicopter or aircraft accidents is that the cause of the
accident must be directly attributable to action by the enemy rather than
merely the presence of the enemy."  The message goes on to state that enemy
fire on the aircraft must have caused or directly contributed to the
accident.  The fact that an aircraft is on or returning from a combat
mission when an accident occurs is not sufficient, standing alone, to
classify as hostile, casualties resulting from such accident.




DISCUSSION AND CONCLUSIONS:

1.  The applicant contends that her late brother should have received a
posthumous award of the Purple Heart based on a helicopter crash in Vietnam
on 21 February 1969.

2.  Guidance at that time distinguished between accidents classified as non-
hostile or hostile.  This guidance specifically states that the fact that
an aircraft is on or returning from a combat mission when an accident
occurs is not sufficient, standing alone, to classify as hostile casualties
resulting from such accident.

3.  Casualty reports in the FSM's military records stated that the death of
the FSM was classified as non-battle.

4.  The applicant contends that her late brother should have been awarded
the Purple Heart.  However, there is insufficient evidence to show that the
helicopter crash was the result of hostile action.

5.  Evidence shows that officials at the Military Awards Branch extensively
reviewed the FSM's entitlement to award of the Purple Heart.  They
concluded that while the crash investigation showed that the FSM was on a
combat mission, the cause of the helicopter crash was not directly
attributable to hostile action.

6.  Additionally, the Army determined that the helicopter crash on 21
February 1969 in Vietnam was not the result of hostile action.  The Army's
determination regarding the crash in this case was based on review by the
Chief of the Military Awards Branch, casualty reports, and the crash
investigation.

7.  The statements submitted by former crewmen describe actions on
21 February 1969 and attest to the fact that the FSM was on a combat
mission.  However, these statements do not provide evidence that the
helicopter crash was directly attributable to hostile action.

8.  The newspaper article submitted by the applicant reported that the FSM
died when the helicopter gunship on which the FSM was crew chief, abruptly
fell out of the sky while returning from an afternoon of combat.  However,
the article did not state that the crash was the result of hostile action.

9.  The applicant stated that information was apparently omitted from the
accident report regarding the activities of their mission and the
crewmembers were denied award of the Purple Heart.  However, there is no
evidence nor has the applicant provided evidence to the contrary.

10.  The FSM's sister contends that she recently learned of the events that
led to the loss of her brother and that he did not receive the Purple
Heart.

11.  Notwithstanding the evidence submitted by the applicant, the evidence
in the FSM 's military records show that the helicopter crash was not the
result of hostile action.  Therefore, there is insufficient evidence upon
which to base award of the Purple Heart in this case.

12.  The FSM is entitled to award of three bronze service stars to be
placed on his Vietnam Service Medal.  These awards are based on his
participation in three campaigns during his Vietnam service.

13.  Records show the alleged error now under consideration should have
been discovered on 27 February 1969, the date of the final report of
casualty.  Therefore, the time to file a request for correction of any
error or injustice expired on 26 February 1972.  However, it is appropriate
to waive failure to timely file based on the fact there is no statute of
limitations on requests for award of the Purple Heart.

14.  Evidence shows that the applicant’s records contain administrative
error which does not require action by the Board.  Therefore,
administrative correction of the applicant's records will be accomplished
by the Case Management Support Division (CMSD), St. Louis, Missouri, as
outlined by the Board in paragraph 3 of the BOARD
DETERMINATION/RECOMMENDATION section below.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF

________  ________  ________  GRANT PARTIAL RELIEF

________  ________  ________  GRANT FORMAL HEARING

__fe____  __jtm___  __rjo___  DENY APPLICATION








BOARD DETERMINATION/RECOMMENDATION:

1.  The Board determined that it is appropriate to waive the ABCMR's three-
year statue of limitations in this case.

2.  The evidence presented does not demonstrate the existence of a probable
error or injustice.  Therefore, the Board determined that the overall
merits of this case are insufficient as a basis for correction of the
records of the individual concerned to show award of the Purple Heart.

3.  The Board determined that administrative error in the records of the
individual should be corrected.  Therefore, the Board requests that the
CMSD-St. Louis administratively correct the records of the individual
concerned to show award of
three bronze service stars to be affixed to his Vietnam Service Medal.


                                        Fred Eichorn
                                  ______________________
                                            CHAIRPERSON


                                    INDEX

|CASE ID                 |AR2004102653                            |
|SUFFIX                  |                                        |
|RECON                   |                                        |
|DATE BOARDED            |20041123                                |
|TYPE OF DISCHARGE       |                                        |
|DATE OF DISCHARGE       |                                        |
|DISCHARGE AUTHORITY     |                                        |
|DISCHARGE REASON        |                                        |
|BOARD DECISION          |DENY                                    |
|REVIEW AUTHORITY        |                                        |
|ISSUES         1.       |107.0015                                |
|2.                      |                                        |
|3.                      |                                        |
|4.                      |                                        |
|5.                      |                                        |
|6.                      |                                        |


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