IN THE CASE OF:	

		BOARD DATE:	 28 October 2008 

		DOCKET NUMBER:  AR20080010876 


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 award of the Purple Heart for wounds received while flying combat missions in the Republic of Vietnam.  He further requests Oak Leaf Clusters to be worn on his Air Medal based on his 700 hours of flight time in Vietnam.

2.  The applicant states the page from his Department of Veterans Affairs (VA) Rating Decision describes a wound to his right arm; however, the date of June 1968 is incorrect.  He states he was wounded in June 1971.  He states his unit was flying gun support for missions into Cambodia.  He further states he was medevaced (medical evacuation) from the Republic of Vietnam in October 1971.  
3.  The applicant states he has an award for one thousand accident-free hours and his log book showing he had over 4,000 hours of flying time of which over 700 hours were in UH-1C AND UH-1M helicopter gun ships.  

4.  The applicant provides, in support of his application, copies of his Officer Record Brief (ORB) (DA Form 4037); one page from a flight log; two 
DD Forms 214 (Armed Forces of the United States Report of Transfer or Discharge) with effective dates of 24 July 1969 and 31 May 1973; one page from a VA rating decision; and a Standard Form 180 (Request Pertaining to Military Records).




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.  After completing 10 months and 9 days of active enlisted service, the applicant was commissioned a second lieutenant in the U.S. Army Reserve (USAR) on 25 July 1969 and entered active service on the same day.

3.  The applicant's ORB shows he was assigned to the 117th Aviation Company in the Republic of Vietnam in January 1971.  The exact dates of assignment to the 117th Aviation Company on his DA Form 66 (Officer Qualification Record) are illegible.

4.  Headquarters, 1st Aviation Brigade General Orders Number 5845, dated 
14 August 1971, awarded the applicant the Air Medal for meritorious achievement while participating in aerial flight during the period from 11 January 1971 to 31 January 1971.

5.  The applicant's DA Form 66 shows he was medevaced to the continental U.S. on 31 October 1971.

6.  On 31 May 1973, the applicant was released from active duty at his own request and transferred to the USAR Control Group (Reinforcement).  He had completed 3 years, 10 months, and 6 days of active service this period that was characterized as honorable.  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 Air Medal.  However, the award of the Purple Heart is not listed in Item 24.



7.  The applicant completed additional commissioned service in the Army National Guard and the U.S. Army Reserve.  Effective 2 September 1997, the applicant was assigned to the Retired Reserve.

8.  A review of the applicant's military personnel records on microfiche and his military personnel record jacket failed to produce any evidence that the applicant was wounded as a result of hostile action.  There are no orders in the applicant's records for the award of the Purple Heart.

9.  The applicant's name does not appear on the Vietnam Casualty Listing.

10.  The applicant's service medical records were not available for review.

11.  The applicant's military service records do not contain a DA Form 759 (parts I and II) (Individual Flight Record and Flight Certificate - Army).

12.  Page 2 of a VA Rating Decision, dated 15 July 2002, contains the statement, "Your personnel records show you received the Purple Heart for a right arm fragment wound, but there is no evidence of treatment for it."

13.  The applicant submitted one page from his flight log showing flight hours for the period from 8 May to 27 June 1975.  However, this page does not show that the applicant was flying in connection with military operations against an armed enemy or while engaged in military operations involving conflict with an opposing armed force in which the United States is not a belligerent party.

14.  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.  A wound is defined as an injury to any part of the body from an outside force or agent sustained as a result of hostile action.  

15.  U.S. Army Vietnam (USARV) Regulation 672-1 (Decorations and Awards), then in effect, provided, in pertinent part, guidelines for award of the Air Medal.  It established that passenger personnel who did not participate in an air assault were not eligible for the award based upon sustained operations.  It defined terms and provided guidelines for the award based upon the number and types of missions or hours.  Twenty-five Category I missions (air assault and equally dangerous missions) and accrual of a minimum of 25 hours of flight time while 

engaged in Category I missions was the standard established for which sustained operations were deemed worthy of recognition by an award of the Air Medal.  However, the regulation was clear that these guidelines were considered only a departure point.  Nothing created an entitlement to the award.  Fifty Category II missions (armed and visual reconnaissance, and support  immediately before, during and after combat assault operations) was the standard established for which sustained operations were deemed worthy of recognition by an award of the Air Medal.

16.  Army Regulation 672-5-1 (Military Awards), effective 1 August 1974, provided that awards of the Air Medal for meritorious service may be made for sustained distinction in the performance of duties involving regular and frequent participation in aerial flight for a period of at least 6 months.  In this regard, accumulation of a specified number of hours and missions will not serve as the basis for ward of the Air Medal.  The performance of duties must be in connection with military operations against an armed enemy or while engaged in military operations involving conflict with an opposing armed force in which the United States is not a belligerent party.

17.  Army Regulation 672-5-1, effective 1 August 1974, provides, in pertinent part, that Arabic numerals were to be used instead of Oak Leaf Clusters for the second and succeeding awards of the Air Medal.  The numeral 2 denotes the second award of the Air Medal.

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends he should be awarded the Purple Heart and clusters to be added to his award of the Air Medal.

2.  The VA stated, in their decision dated 15 July 2002, that the applicant's personnel records show he received the award of the Purple Heart.  However, a review of those records failed to produce any evidence that the applicant was wounded as a result of hostile action.  Although the record shows he was medevaced on 31 October 1971 from the Republic of Vietnam, there is no evidence to show why.

3.  The applicant's name does not appear on the Vietnam Casualty Listing and there is no corroborating official documentation or evidence to show he was wounded or treated for wounds as a result of hostile action.


4.  In the absence of military records which show that the applicant was wounded or treated for wounds resulting from hostile action, there is insufficient evidence upon which to base award of the Purple Heart in this case.

5.  The applicant stated he had flown 700 hours in helicopter gunships.  However, there is no official documentation showing the categories of the missions or the number of hours flown.  Therefore, there is insufficient evidence to award Oak Leaf Clusters to the applicant's Air Medal.  

6.  The criteria for the award of the Air Medal was revised effective 1 August 1974 and provided that awards for meritorious service may be made for sustained distinction in the performance of duties involving regular and frequent participation in aerial flight for a period of at least 6 months and that those duties must be in connection with military operations against an armed enemy or while engaged in military operations involving conflict with an opposing armed force in which the United States is not a belligerent party.  Accumulation of a specified number of hours and missions will not serve as the basis for award of the Air Medal.  

7.  The page submitted by the applicant from his flight log only covers a period of 2 months in 1975.  There is no indication in the log that the performance of flight duties were in connection with military operations against an armed enemy or while engaged in military operations involving conflict with an opposing armed force in which the United States is not a belligerent party.  Therefore, there is insufficient evidence for additional awards of the Air Medal.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

___X____  ___X____  ___X___  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 our Nation.  The applicant and all Americans should be justifiably proud of his service in arms.



      
      _________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)                                         AR20080010876



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ABCMR Record of Proceedings (cont)                                         AR20080010876



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