IN THE CASE OF:	  

		BOARD DATE:	        15 January 2009

		DOCKET NUMBER:  AR20080017187 


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.

2.  The applicant states that he suffered a left arm injury when the helicopter he was piloting crashed under enemy fire shortly after takeoff on 4 May 1966 in the Republic of Vietnam and that he was treated at the 93rd Evacuation Hospital.

3.  The applicant provides copies of his clinical records, dated 4 May 1966, and a witness statement, dated 21 May 2004, in support of his request.

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 records show he was appointed as a U.S. Army Reserve (USAR) second lieutenant on 2 August 1957 and was ordered to active duty on 24 November 1957.  He subsequently completed the fixed and rotary wings aviator courses as well as several flight training courses and he was awarded military occupational specialty 1980 (Fixed Wing Aviator).  He was honorably released from active duty on 23 November 1960.

3.  On 2 November 1961, the applicant was ordered to active duty and was subsequently promoted to major on 10 February 1967.  He was honorably released from active duty and transferred to the USAR Control Group (Reinforcement) on 30 January 1968.

4.  The applicant's records further show he served in the Republic of Vietnam from 27 September 1965 to 27 September 1966.  He was assigned to Company B, 1st Aviation Battalion.

5.  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 with two bronze service stars, the Republic of Vietnam Campaign Medal, and the Air Medal with one silver and three bronze service stars.  Item 24 does not show award of the Purple Heart.

6.  The applicant's name is not shown on the Vietnam Casualty Roster and his records do not contain general orders that show he was awarded the Purple Heart.

7.  The applicant's DA Form 8-275-3 (Clinical Record Cover Sheet) shows that he suffered a left shoulder injury with stretch syndrome affecting the left median nerve sensory distribution when the main rotor of the helicopter in which he was riding hit a tree and crashed on 4 May 1966.

8.  The applicant's DD Form 640 (Nursing Notes), dated 4 May 1966, shows that the applicant arrived at the 93rd Evacuation Hospital on a litter with his arm in a sling after he suffered a "chopper accident."

9.  On 9 November 1967, by message, the Commander, 13th Support Brigade, Fort Hood, Texas, requested the Commander, 93rd Evacuation Hospital, Vietnam, make a determination concerning the applicant's award of the Purple Heart.  


10.  On 9 November 1967, by endorsement addressed from the Assistant Adjutant General of the 13th Support Brigade to the Commander of the 93rd Evacuation Hospital, the Assistant Adjutant General stated that an interview with the applicant revealed that he was hospitalized from 4 May 1966 to 13 May 1966 as a result of the crash on 4 May 1966.  During this interview, the applicant stated that his injury resulted when his aircraft crashed rather than by direct enemy fire.  However, the Commanding General of the 1st Infantry Division was flying over at the time and later made a report that the applicant's aircraft was hit by hostile fire and that he (the Commanding General) was an eyewitness to this incident.

11.  On 9 November 1967, the Assistant Adjutant of the 93rd Evacuation Hospital responded by endorsement and stated that a check of the applicant's clinical record cover sheet reflected no indication of injury resulting from hostile action and that further investigation through the U.S. Army Vietnam Safety and Casualty Offices was futile because pertinent information was not available. 

12.  The applicant submitted a witness letter, dated 21 May 2004, in which the witness states that he was an advisor attached to the 5th Vietnamese Infantry Division, less than a mile from the 1st Aviation Battalion and flew some of their aircraft at times due to a shortage of air transportation.  He adds that he is well aware of the applicant's hostile fire circumstances and the location of his aircraft at the time.  He further adds that this Huey was not designed to carry 13 infantry Soldiers with or without their full load and that he can attest to the extraordinary efforts made by American pilots to lift as many Soldiers as possible.  He further states that the applicant's crash left the helicopter inverted and that it was immediately destroyed by fire.  Everyone managed to escape; however, the applicant suffered non-life threatening, but serious injuries.  

13.  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.  Substantiating evidence must be provided to verify that the wound was the result of hostile action, the wound must have required treatment, and the medical treatment must have been made a matter of official record.  

14.  U.S. Army Vietnam (USARV) Regulation 672-1 (Decorations and Awards) provided, in pertinent part, for award of the Purple Heart.  The regulation stated that authority to award the Purple Heart was delegated to hospital commanders.  

Further, it directed that all personnel treated and released within 24 hours will be awarded the Purple Heart by the organization to which the individual is assigned. Personnel requiring hospitalization in excess of 24 hours or evacuation from Vietnam will be awarded the Purple Heart directly by the hospital commander rendering treatment.

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends that he should be awarded the Purple Heart.

2.  The applicant’s service in Vietnam, as well as his integrity, loyalty, and selfless service are not in question.  Furthermore, the witness statement and endorsements submitted on behalf of the applicant was considered.  However, there is no indication in the submitted statement that the author witnessed the injury at the time it happened or was present at the time the applicant was treated for his injury.  The witness appears to have heard of the applicant's injury or learned of it at a later date.  

3.  The endorsement addressed from the Assistant Adjutant General of the 13th Support Brigade to the Commander of the 93rd Evacuation Hospital, dated 9 November 1967, indicates that the Commanding General of the 1st Infantry Division was flying over at the time and later made a report that the applicant's aircraft was hit by hostile fire and that he (the Commanding General) was an eyewitness to this incident.  However, the applicant's record is void of the Commanding General's report.  Therefore, without the source document, the endorsement itself is insufficient evidence upon which to award the applicant the Purple Heart.

4.  There are no general orders that show he was awarded the Purple Heart, the applicant's name is not listed on the Vietnam Casualty Roster, and the available records do not show that he was wounded or injured as a result of hostile action or that he was treated for such wounds.  In the absence of evidence that the applicant was wounded or injured as a result of hostile action and treated for those wounds, regrettably, 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

___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.


															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)                                         AR20080017187



3


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1

ABCMR Record of Proceedings (cont)                                         AR20080017187



2


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1