IN THE CASE OF:	  

		BOARD DATE:	        27 January 2009

		DOCKET NUMBER:  AR20080017271 


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 her deceased husband, a former service member (FSM), be awarded the Purple Heart. 

2.  The applicant states the FSM was injured when a downed helicopter exploded while he was attempting to rescue Soldiers from the wreckage.

3.  The applicant submitted a copy of her marriage license, dated 17 February 1978; and a copy of the FSM’s Certificate of Death, dated 15 April 1998, in support of her 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 he enlisted in the Regular Army on 13 June 1969 for a period of 3 years.  He completed basic combat and advanced individual training and he was awarded military occupational specialty (MOS) 67N (UH-1 Helicopter Repairman).  He was honorably released from active duty on            17 December 1971 and transferred to the U.S. Army Reserve (USAR) Control Group (Reinforcement) to complete his remaining Reserve obligation. The highest rank he attained during this period of military service was specialist five (SP5) /E-5.

3.  The FSM’s records show he served in the Republic of Vietnam from 30 December 1969 to 26 November 1970.  He was assigned to the 173rd Aviation Company (Assault Helicopter).

4.  Item 24 (Decorations, Medals, Badges, Commendations, Citations and Campaign Ribbons Awarded or Authorized) of the FSM’s DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge) shows he was awarded the Silver Star, the National Defense Service Medal, the Vietnam Service Medal with two bronze service stars, the Republic of Vietnam Campaign Medal, the Aircraft Crewman Badge, and the Sharpshooter Marksmanship Qualification Badge with Rifle Bar.

5.  Item 40 (Wounds) of the FSM’s DA Form 20 (Enlisted Qualification Record) shows no entry.

6.  The FSM's name is not shown on the Vietnam Casualty Roster. 

7.  The FSM's medical records are not available for review with this case.

8.  The FSM was awarded the Silver Star on 8 August 1970.  General Orders Number 9824, Headquarters, 1st Aviation Brigade, dated 5 October 1970, provide the following reason for the award:

"For gallantry in action in connection with military operations involving conflict with an armed hostile force:  [FSM] distinguished himself by exceptionally valorous actions while serving as a crew chief on a troop-carrying helicopter operating in an area near Bu Dop.  As his ship set down beside the flaming wreckage of a helicopter gunship shot down by enemy gunfire, he boldly left his aircraft position and rushed to aid the trapped crewmen.  Disregarding the grave danger to his own life, he entered the front of the wreckage and emptied a fire extinguisher over the shoulder of the pinned aircraft commander.  Yanking at the twisted framework, he worked desperately to 

release the trapped airman, but was driven off repeatedly by the intense heat. On a third entry into the blazing and ordnance-laden wreckage, he was able with others to withdraw the man from the ship.  Seizing another fire extinguisher from an evacuation ship, he was returning to the wreckage when the rocket load aboard the gunship erupted, concluding rescue efforts.  Painfully injured in the blast, he was assisted to the rescue helicopter and evacuated with the other injured to medical facilities."

9.  Review of the FSM's records indicates his entitlement to additional awards that are not shown on his DD Form 214.

10.  Headquarters, 1st Aviation Brigade, General Orders Number 10831, dated 3 November 1970, show the FSM was awarded the Army Commendation Medal for meritorious service in connection with military operations against a hostile force in the Republic of Vietnam from 1 July 1970 to 3 November 1970.

11.  Headquarters, 1st Aviation Brigade, General Orders Number 11121, dated 11 November 1970, show the FSM was awarded the Air Medal for meritorious achievement while participating in aerial flight in the Republic of Vietnam from 23 February 1970 to 5 March 1970.

12.  Headquarters, 1st Aviation Brigade, general Orders Number 12548, dated 22 December 1970, show the FSM was awarded the Air Medal (2nd through 13th Award) for meritorious achievement while participating in aerial flight in the Republic of Vietnam from 6 March 1970 to 19 November 1970.

13.  Headquarters, 2nd Armored Division, Fort Hood, Texas, General Orders Number 1606, dated 18 November 1971, show the FSM was awarded the Good Conduct Medal (1st Award) for exemplary behavior, efficiency, and fidelity, during the period 13 June 1969 through 17 December 1971.

14.  Army Regulation 600-8-22 (Military Awards) provides, in pertinent part, that the Purple Heart is awarded for a wound sustained while in action against an enemy or 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.

15.  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.

16.  Department of the Army Pamphlet 672-3 (Unit Citation and Campaign Participation Credit Register) shows that during the FSM's tenure of assignment, the 173rd Aviation Company was awarded the Republic of Vietnam Gallantry Cross with Palm Unit Citation based on Department of the Army General Orders Number 8, dated 1974; and the Republic of Vietnam Civil Actions Honor Medal First Class Unit Citation, based on Department of the Army General Orders Number 55, dated 1971.

17.  Army Regulation 600-8-22 provides that Arabic numerals are now 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.

18.  Appendix B of Army Regulation 600-8-22 shows that the FSM participated in the Vietnam Winter-Spring 1970 (1 November 1969 to 30 April 1970), the DA Sanctuary (1 May 1970 to 30 June 1970), and the Vietnam Counteroffensive, Phase VII (1 July 1970 to 30 June 1971) campaigns during his tour of duty in the Republic of Vietnam.  This same regulation states that a bronze service star will be awarded for wear on the Vietnam Service Medal for participation in each campaign.

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends that the FSM should be awarded the Purple Heart for being injured during a combat operation on 8 August 1970 in the Republic of Vietnam.

2.  During a combat mission, the FSM was performing his duties as a helicopter crew chief aboard a troop-carrying helicopter.  A helicopter gunship received enemy ground fire, crashed, and burst into flames.  The FSM’s helicopter landed near the downed gunship and the FSM ran to the stricken ship to rescue the crew.  During the rescue of the crew, ordnance aboard the gunship exploded, wounding the FSM, causing his medical evacuation.  He was awarded the Silver Star for his gallantry in action.



3.  The Purple Heart is awarded for wounds received as the result of hostile action.  During a combat mission, hostile action resulted in the downing of a helicopter gunship.  While rescuing the crew of the stricken ship, an explosion occurred which wounded the FSM.  This entire chain of events was the result of the enemy having shot down the helicopter gunship; therefore, the FSM’s wounds were a direct result of enemy action.  Purple Heart wounds must have 
required treatment by medical personnel.  The FSM’s Silver Star citation states he was medically evacuated due to his injuries received during the rescue attempt.  The FSM’s injuries should have been classified as a combat wound, and he should have been awarded the Purple Heart.

4.  General orders awarded the FSM the Army Commendation Medal and the Good Conduct Medal, which are not shown on his DD Form 214; therefore, he is entitled to correction of his DD Form 214 to show these awards.

5.  General orders awarded the FSM 13 awards of the Air Medal which are not shown on his DD Form 214; therefore, he is entitled to correction of his DD Form 214 to show the Air Medal with numeral 13.

6.  General Orders awarded the FSM’s unit the Republic of Vietnam Gallantry Cross with Palm Unit Citation and the Republic of Vietnam Civil Actions Honor Medal First Class Unit Citation which are not shown on his records; therefore, he is entitled to have his records corrected to show these awards.

7.  The evidence of record shows the FSM was awarded the Vietnam Service Medal.  Additionally, records show the FSM participated in three campaigns while serving in the Republic of Vietnam; however, only two bronze service stars are shown on his DD Form 214.  Therefore, he is entitled to award of three bronze service stars to be affixed to the Vietnam Service Medal.

BOARD VOTE:

___X____  ___X____  ___X____  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION




BOARD DETERMINATION/RECOMMENDATION:

The Board determined that the evidence presented was sufficient to warrant a recommendation for relief.  As a result, the Board recommends that all Department of the Army records of the individual concerned be corrected by:

	a.  awarding the FSM the Purple Heart for wounds received in action in the Republic of Vietnam on 8 August 1970;

	b.  deleting the entry "Vietnam Service Medal with two bronze service stars" from Item 24 of the FSM's DD Form 214; and

	c.  adding to Item 24 of the FSM's DD Form 214 the Purple Heart, the Army Commendation Medal, the Good Conduct Medal (1st Award), the Air Medal with numeral 13, the Vietnam Service Medal with three bronze service stars, the Republic of Vietnam Gallantry Cross with Palm Unit Citation, and the Republic of Vietnam Civil Actions Honor Medal First Class Unit Citation.


															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)                                         AR20080017271



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ABCMR Record of Proceedings (cont)                                         AR20080017271



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