IN THE CASE OF:	  

	BOARD DATE:	  19 June 2008

	DOCKET NUMBER:  AR20080005311 


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 that he be awarded the Purple Heart for injuries sustained in combat in Vietnam on 22 September 1969.  

2.  The applicant states that he was flying a helicopter gunship mission to search an area where a lieutenant colonel was shot and killed in an observation helicopter recently.  After firing on a bunker complex he heard a “crack” “crack” sound and lost total control and crashed.  He goes on to state that he believed it to be from hostile fire. 

3.  The applicant provides an information sheet related to the history of the crashed helicopter, a copy of his last DD Form 214 and DD Form 215, a black and white photo of a crash scene, and copies of his medical records showing that on 22 September 1969, he was treated for lacerations.  

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 United States Army Reserve (USAR) in Newburgh, New York on 1 March 1968 under the delayed entry program (DEP).  On 29 March 1968, he enlisted in the Regular Army for a period of 2 years and the Warrant Officer Flight Program.

3.  He successfully completed his training and was honorably discharged on 9 March 1969 to accept an appointment as a USAR warrant officer.  

4.  On 10 March 1969, he was appointed as a USAR warrant officer one (WO1) with a concurrent call to active duty.  He was transferred to Vietnam on 6 April 1969 for assignment to the 101st Airborne Division for duty as a rotary wing helicopter pilot.

5.  The documents provided by the applicant show that on 22 September 1969, the applicant was piloting a OH-6A helicopter that experienced mechanical failure and crashed.  The helicopter had 549 hours of operation on it when it was deemed a total loss.  The crash was deemed an accident and there was no indication of the aircraft being hit by small arms fire.  The applicant and one crewmember were injured.

6.  However, the previous entry for the same helicopter, again with 549 hours on it, indicates that on 23 August 1969, the helicopter took four hits from small arms fire and the fuel system was damaged.  

7.  The applicant was treated at the 18th Surgical Hospital for injuries to his forehead, nose, and hand.  His sutures were removed on 26 September 1969 and on 11 October 1969, the Division Flight Surgeon noted that the applicant had been injured on 22 September 1969 in a helicopter crash due to mechanical failure.  He cleared the applicant to return to flight status.

8.  The applicant was promoted to the rank of Chief Warrant Officer Two (CW2) on 10 March 1970 and departed Vietnam on 22 March 1970 for assignment to Hunter Army Airfield, Georgia, where he remained until he was honorably released from active duty (REFRAD) on 14 April 1971 and was transferred to the USAR Control Group (Reinforcement).  He had served 3 years and 16 days of 


total active service and his DD Form 214 issued at the time of his REFRAD shows that he was awarded the National Defense Service Medal, the Army Aviator Badge, the Army Commendation Medal, and the Air Medal with Numeral 18.

9.  The applicant was promoted to the rank of Chief Warrant Officer Three (CW3) on 12 June 1981 and to the rank of Chief Warrant Officer Four (CW4) on 12 June 1987.  On 4 September 2002, he was honorably discharged from the USAR.  

10.  A review of the available records as well as the Vietnam Casualty Listing fails to show any evidence that the applicant was injured as a result of hostile action.  Additionally, a search of the United States Army Human Resources Command Awards and Decorations Computer-Assisted Retrieval System (ADCARS), a web-based index containing roughly 611,000 general orders issued between 1965 and 1973 for the Vietnam era failed to show that the applicant or his crewmember at the time were awarded the Purple Heart.

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 medical personnel, and the medical treatment must have been made a matter of official record.

DISCUSSION AND CONCLUSIONS:

1.  While the sincerity of the applicant’s contention that he is entitled to award of the Purple Heart is not in doubt, there is no evidence in the applicant’s military records, and the applicant has not provided sufficient evidence to show that he was injured as a result of hostile action in Vietnam. 

2.  The lack of sufficient evidence coupled with the passage of time (39+ years) makes it difficult at best to establish if the applicant met the criteria for award of the Purple Heart.  Therefore, in the absence of such evidence, it must be presumed that what the Army did at the time was correct.  Accordingly, there appears to be no basis to award him the Purple Heart at this time.    

3.  It is noted that the documents provided by the applicant do not suggest that the crash was caused by hostile action, but simply by a mechanical failure.  The documents provided by the applicant also show that in previous incidents where the helicopter was hit by small arms fire, it was made a matter of record.  There is no indication of any damage by small arms fire on the date of his accident.   

4.  In order to justify correction of a military record the applicant must show to the satisfaction of the Board, or it must otherwise satisfactorily appear, that the record is in error or unjust.  The applicant has failed to submit evidence that would satisfy this requirement.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

__XXX __  __XXX__  __XXX__   DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

1.  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.

2.  The Board wants the applicant and all others concerned to know that this action in no way diminishes the sacrifices made by the applicant in service to the United States during the Vietnam War.  The applicant and all Americans should be justifiably proud of his service in arms.



      ___        XXX                ___
                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.

ABCMR Record of Proceedings (cont)                                         AR20080005311



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ABCMR Record of Proceedings (cont)                                         AR20080005311



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