IN THE CASE OF:	  

	BOARD DATE:	 

	DOCKET NUMBER:  AR20080007521 


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, in effect, that he be awarded the Purple Heart for injuries he sustained during combat operations in Vietnam.

2.  The applicant states, in effect, that he was never given the Purple Heart for his injury, a broken T-12 vertebra, while piloting a helicopter during combat operations in Vietnam.

3.  In a self-authored letter to the board which the applicant added as an addendum to his DD Form 149, Application for Correction of Military Record, he states, in effect, he would like to point out his disappointment when he received a letter and the denial of the Purple Heart.  It reinforced the anguish and anger he has felt all these years by not receiving the honor in the first place.

4.  In May of 1969, the applicant adds, in effect, he was a CW2 (Chief Warrant Officer Two) flying combat operations in South Vietnam.  Unfortunately, their aircraft went down due to an engine failure and upon impact he broke his T-12 vertebrae.  He was medically evacuated from the crash site to Saigon, then Vung Tau, and finally to the Naval Hospital, St. Albans, New York.  He concludes by stating he recuperated, was returned to active flying status, and was honorably discharged in February 1972; but, he states he has always felt he was due this honor and if necessary, he will appear in person to answer questions or to substantiate his circumstances.

5.  In support of his application, the applicant submitted a self-authored letter to the board; a copy of an order reassigning him from the Naval Hospital, St. Albans, to the US Army Transportation Center and School, Fort Eustis, Virginia; and a copy of a letter he received from the National Personnel Records Center (NPRC), St. Louis, Missouri, dated 12 March 2008.

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’s military records show that he was inducted into the Army of the United States on 2 March 1967.  On 20 October 1968, he was discharged in the rank and pay grade of Specialist Five, E-5, to accept an appointment as an Army Aviation Warrant Officer in the Army Reserve, with concurrent call to active duty.  The applicant served as an Army Aviation Warrant Officer until 22 June 1970 when he was appointed a commissioned officer in the Army Reserve, with concurrent call to active duty, in the Armor branch.  The evidence shows that on 22 February 1972, the applicant was released from active duty in the rank and pay grade, Captain, O-3.

3.  The applicant served in Vietnam from 18 November 1968 through 24 June 1969, as a CW2, with the 191st Assault Helicopter Company.

4.  A DA Form 759, Individual Flight Record and Flight Certificate – Army, on file in the applicant’s service personnel record, shows his flight records were closed out on 12 June 1969.  An entry was made in Item 24 (Remarks) of the form, that reads:  "27 April 1969, UH-1C, 66-15165, Major Accident, Individual was first pilot and was injured in accident, Cause:  Material Failure, possible fuel contamination."

5.  A copy of an unclassified message order, Subject:  Reassignment of Medical Evacuees, is on file in the applicant's service personnel record showing he was reassigned to the US Army Vietnam Patient Casual Company and medically evacuated from his unit, the 191st Assault Helicopter Company, to the US Army Hospital, Ryukyu Islands (Okinawa), with a reporting date of 2 June 1969.  Item 18 (Record of Assignments), of his DA Form 66, Officer Qualification Record, shows he was further medically evacuated to the Medical Holding Detachment, Naval Hospital, St. Albans, and he arrived there on 1 July 1969.

6.  On 1 July 1969, an admission diagnosis was completed and filed in the applicant's service personnel records.  This admission diagnosis states, the applicant was admitted for treatment of a fractured T-12 vertebrae and concussion of the left thumb.  The admission diagnosis further states the applicant was injured in a helicopter accident (emphasis added), on 27 April 1969.

7.  An Aeromedical Summary, dated 12 February 1970, is on filed in the applicant's service personnel record which states, "… is a 23 year old white male aviator who sustained a compression fracture of vertebrae T12 in a helicopter accident on 27 April 1969.  [The applicant] was acting as the pilot of a UH-1C gun ship in Vietnam when there was an apparent engine failure and a forced landing followed, at which time [the applicant] received his back injury."

8.  There are no orders in the applicant's military personnel records awarding him the Purple Heart.  The applicant's name does not appear on the Vietnam Casualty List.

9.  The applicant was honorably released from active duty, on 22 February 1972, under the provisions of Army Regulation (AR) 635-100, Chapter 3, at the expiration of his term of service.  He was separated in the rank and pay grade of Captain, O-3. On the date he was released from active duty, he had completed a combined total of 4 years, 11 months, and 22 days enlisted, warrant officer, and commissioned officer active military service.

10.  Item 24 (Decorations, Medals, Badges, Commendations, Citations and Campaign Ribbons Awarded or Authorized), of the applicant's DD Form 214, shows he was awarded:  the National Defense Service Medal; the Vietnam Service Medal; the Republic of Vietnam Campaign Medal, with Device (1960); the Air Medal, with 20 oak leaf clusters; and the Army Aviator Badge.  This item also shows the applicant participated in the Vietnam Counteroffensive, Phase II; and the Tet 69 Counteroffensive, 1969 campaigns of the Vietnam War.  The Purple Heart is not shown on the applicant's DD Form 214.

11.  On 12 March 2008, the applicant received a reply to a request for award of the Purple Heart he made to the NPRC.  In the reply the NPRC advised him, "the Purple Heart is awarded for wounds or injuries received as a direct result of hostile action.  A record of such wounds or injuries must be contained in official military records.  A search of these records has failed to produce any evidence that the veteran received such wounds.  In the absence of evidence, the Purple Heart cannot be authorized."

12.  Army Regulation 600-8-22 provides, in pertinent part, that the Purple Heart is awarded for a wound sustained as a result of hostile action (emphasis added). Substantiating evidence must be provided to verify that:  a.) the wound was the result of hostile action, b.) the wound must have required treatment by medical personnel, and c.) the medical treatment must have been made a matter of official record.

13.  Army Regulation 600-8-22, in paragraph 2-8.h., provides examples of injuries or wounds which clearly do not justify award of the Purple Heart.  Among the examples are the following:  frostbite or trench foot injuries; heat stroke; food poisoning not caused by enemy agents; chemical, biological, or nuclear agents not released by the enemy; battle fatigue; disease not directly caused by enemy agents; accidents, to include explosive, aircraft, vehicular, and other accidental wounding not related to or caused by enemy action (emphasis added); self-inflicted wounds, except when in the heat of battle and not involving gross negligence; post traumatic stress disorders; and jump injuries not caused by enemy action.

DISCUSSION AND CONCLUSIONS:

1.  To be awarded the Purple Heart, substantiating evidence must be presented to show that the applicant was wounded as 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.

2.  The evidence in this case shows the applicant received injuries when the helicopter he was piloting experienced an apparent engine malfunction due to possible fuel contamination.  The apparent engine malfunction caused a forced landing at which time he received his back injury.

3.  As a result of the injuries he received to his back, the applicant was medically evacuated first to the US Army Hospital in Okinawa and then to the Naval Hospital, St. Albans, New York.  He was treated, he recuperated, and he was returned to duty to continue his military service and to fulfill his military obligation before being released from active duty in the rank and pay grade, Captain, O-3.
4.  Army Regulation 600-8-22, in paragraph 2-8.h., provides examples of injuries or wounds which clearly do not justify award of the Purple Heart.  Among the examples are injuries received in accidents, to include explosive, aircraft, vehicular, and other accidents not related to or caused by enemy action.  In this case, there is no evidence the helicopter accident was cause as a result of enemy action; therefore, based on the available evidence, the applicant is not entitled to award of the Purple Heart and to have it added to his DD Form 214.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

___x____  ___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 that the overall merits of this case are insufficient as a basis for correction of the records of the individual concerned.



	________x_______________
      	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)                                         AR20080007521



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ABCMR Record of Proceedings (cont)                                         AR20080007521



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