RECORD OF PROCEEDINGS


	IN THE CASE OF:	  


	BOARD DATE:	  15 November 2007
	DOCKET NUMBER:  AR20070010867 


	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.


Ms. Catherine C. Mitrano

Director

Mr. Mohammed R. Elhaj

Analyst

The following members, a quorum, were present:


Ms. Margaret K. Patterson

Chairperson

Mr. Larry C. Bergquist

Member

Mr. Dale E. DeBruler

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 his brother, a former service member (FSM), be awarded the Purple Heart 

2.  The applicant states in effect that his brother sacrificed his life in defense of this Nation and should be awarded the Purple Heart.

3.  The applicant provided copies of DD Form 1300 (Report of Casualty), dated 20 November 1967; his Certificate of Birth and Driver's License; the FSM's DA Form 66B ([Insert Sheet to DA Form 66 (Officer Qualification Record)]; Western Union Telegram, dated 17 November 1967, notification of casualty; Secretary of the Army's Letter of Sympathy, dated 30 November 1967; and correspondence from the applicant to Army Human Resources Command, dated 4 July 2007, titled: Review for issue of the Purple Heart, in support of this application. 

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 FSM's records show that he was appointed as an Infantry commissioned officer in the U.S. Army Reserve (USAR) as a 2nd lieutenant on 5 May 1954.  He successfully completed the Fixed Wing Aviator Course during the period 3 March 1956 through 27 November 1956 and was re-designated as an Aviation Officer on 3 March 1956 with military occupational specialty (MOS) 1980 (Army Aviator).

3.  The FSM's record further show that he served in the Republic of Vietnam during the period 7 July 1967 through 8 November 1967.  He was assigned to the 244th Aviation Company.

4.  The FSM's records show that he was awarded the Senior Army Aviator Badge, the National Defense Service Medal (1st Oak Leaf Cluster), the Good Conduct Medal; the Armed Forces Reserve Medal; the Expert Infantryman Badge; the Army Commendation Medal (1st Oak Leaf Cluster), the Vietnam Campaign Medal, the Vietnam service Medal, and the Air Medal.  The applicant's records do not show award of the Purple Heart. 

4.  In his capacity as a pilot and accompanied by his observer, the FSM departed Can Tho Airfield, Can Tho, Republic of Vietnam, at 1:20 p.m., on 8 November 1967 aboard Army Aircraft OV-1C.  Their assigned mission called for them to fly from Can Tho to the Southern Coast of the Republic of Vietnam and to fly surveillance flights along the coast.  At approximately 3:20 p.m., on 17 November 1967, an OV-1C aircraft was observed crashing into the operational area designated for the FSM's mission.  The aircraft crashed into the South China Sea approximately 5 to 6 kilometers off the Southern coast of the Republic of Vietnam.  The aircraft crashed into the water at a high speed, disintegrating and sinking immediately upon impact.  A U.S. Navy ship at the scene of the crash arrived at the crash site within 90 seconds of impact and confirmed there were no survivors.  An examination of the aircraft parts and debris collected at the site of the crash confirmed that the aircraft was an OV-1C aircraft.  Recovery of both of the back seat cushions also substantiated the fact that neither pilot nor observer had an opportunity to eject.  Other personal belongings of both the FSM and his observer substantiated the fact that the same crew was aboard the aircraft at the time of its crash.  The bodies were not recovered, but small amounts of body tissue recovered positively identified the FSM as one of the occupants of the aircraft.  Due to force of impact at the time of the crash and the observation of the observers on the scene within two minutes of the crash, that the bodies of both Soldiers were mutilated.  Although search and diving operations continued, there were no additional findings.  Both Soldiers' status was classified as "Missing in Action."

5.  On 17 November 1967, a Board of Inquiry of Missing Persons convened to determine all the facts concerning the status of the FSM and the observer.  The Board of Inquiry investigated the facts and circumstances surrounding the crash. The Board of Inquiry determined that based on the recovery of the remains and positive identification of the casualties, their status was changed from "Missing in Action" to "Dead".

6.  The DD Form 1300 (Report of Casualty), dated 17 November 1967, shows that the casualty status was "Non Battle" and that the FSM died on 8 November 1967 in the Republic of Vietnam as a result of injuries sustained while a pilot of military aircraft which crashed into the water.

7.  The DA Form 2173 (Statement of Medical Examination and Duty Status), dated 15 December 1967, shows that the FSM was flying on an OV-1C surveillance aircraft on a visual reconnaissance mission when the aircraft, at an altitude of 200 feet, was seen to flip over on its back and dive into the water.  The aircraft disintegrated on impact. 

8.  There are no general orders in the FSM's records awarding him the Purple Heart.

9.  The FSM's name is shown on the Vietnam Casualty Roster as follows:

	a.  Casualty Status "33", indicating he was initially reported as "Missing in Action", Cause Code "J" indicating he was a pilot; and the date as 8 November 1967. 

	b.  Casualty Status "41", indicating he died as a result of non-hostile action; Cause Code "GLRJ" indicating he died in an aircraft at sea, due to other reasons, as a pilot in a Rotary Wing Aircraft; and the date as 8 November 1967.

10.  The Purple Heart was established by General George Washington at Newburgh, New York on 7 August 1782 during the Revolutionary War.  It was reestablished by the President of the United States per War Department General Orders Number 3 in 1932.  It was awarded in the name of the President of the United States to any member of the Armed Forces 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 after 5 April 1917, died or sustained wounds as a result of hostile action.

11.  Army Regulation 600-8-22 (Military Awards) provides, in pertinent part, that the Purple Heart 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 a medical officer, and the medical treatment must have been made a matter of official record.

12.  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 required in the initial report.


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

14.  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.

15.  Examples of injuries or wounds which clearly do not qualify for award of the Purple Heart are as follows: 

	(a) Frostbite or trench foot injuries. 
	(b) Heat stroke. 
	(c) Food poisoning not caused by enemy agents. 
	(d) Chemical, biological, or nuclear agents not released by the enemy. 
	(e) Battle fatigue. 
	(f) Disease not directly caused by enemy agents. 
	(g) Accidents, to include explosive, aircraft, vehicular, and other accidental wounding not related to or caused by enemy action. 

DISCUSSION AND CONCLUSIONS:

1.  There is complete empathy with the applicant’s desire to see that his brother is awarded the Purple Heart.  His brother made the supreme sacrifice in service to our nation.  However, the criteria for award of the Purple Heart includes the requirement that the death or injuries incurred be the direct result of hostile action.  In this case, the investigation into the cause of the aircraft crash was unable to discover the exact cause of the crash.  Because there was no definitive determination that the crash was caused by hostile action, and not the result of mechanical failure or other accident, regrettably there is insufficient evidence on which to base award of the Purple Heart.

2.  Guidance provided at the 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.  Notwithstanding the evidence submitted, the preponderance of evidence from military records shows that the aircraft crash in question was not the result of hostile action.  Therefore, there is insufficient evidence upon which to base award of the Purple Heart in this case.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

__mkp___  __lcb___  __ded___  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

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.




						Margaret K. Patterson
______________________
          CHAIRPERSON




INDEX

CASE ID
AR20070010867
SUFFIX

RECON

DATE BOARDED
20071115
TYPE OF DISCHARGE

DATE OF DISCHARGE

DISCHARGE AUTHORITY

DISCHARGE REASON

BOARD DECISION
(DENY)
REVIEW AUTHORITY

ISSUES         1.
107.0015
2.

3.

4.

5.

6.