IN THE CASE OF:	  

		BOARD DATE:	  	  5 February 2009

		DOCKET NUMBER:  AR20080017273 


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, in effect, that he received a combat injury on 24 August 1965 in a helicopter crash in Vietnam.  He contends that the cause of the helicopter crash was from hostile fire.  He indicates that he was treated at the 8th Field Hospital and the 8th Medical Detachment and that he did not have his permanent records due to his temporary duty status.  

3.  The applicant points out that the Military Awards Branch, U.S. Army Human Resources Command initially denied his request for award of the Purple Heart because his name was not on the battle casualty list and their documentation indicated that he was injured in an aircraft accident and that official documentation reflecting medical treatment should be provided.  They also requested an official report of the aircraft crash investigation.  He claims that a Member of Congress resubmitted the request for award of the Purple Heart to the Awards Branch with statements and a Crash Facts Message that clearly states the aircraft was a combat loss, that all crew members were injured, and that the crash was not an accident and would not be investigated.  In October 2007, the Awards Branch again denied his request for the Purple Heart and stated the Crash Facts Message was inconclusive, that official documentation of medical treatment must be provided, and that although eyewitness statements were helpful, they were insufficient for the award.


4.  The applicant provides a Crash Facts Message; witness statements; a Line of Duty determination; service medical records; a flight record; four letters from the Military Awards Branch, U.S. Army Human Resources Command to Member of Congress; and several letters from Members of Congress in support of his 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.  Having prior service, the applicant entered active duty on 8 July 1963.  He served in Vietnam from 17 August 1965 to 6 April 1966 and from 11 October 1969 to 4 February 1970.  On 31 March 1980, he retired in the rank of lieutenant colonel. 

3.  The applicant’s DD Form 214 (Certificate of Release or Discharge from Active Duty) covering the period 8 July 1963 through 31 March 1980 does not show the Purple Heart as an authorized award.   

4.  There are no orders for the Purple Heart in the available records.

5.  The applicant's name does not appear on the Vietnam Casualty Roster.

6.  There are no contemporaneous service medical records available.

7.  In support of his claim, the applicant provided a Crash Facts Message for an Army Aircraft Accident on 24 August 1965.  This message states, in pertinent part, that the aircraft was a combat loss, that the applicant injured his back, that the aircraft was on a combat assault, that three or more sharp "cracks" followed by loss of "RPM" was noted, the suspect cause was a hit by hostile ground fire or low side engine governor failure, and that "this is not an accident as defined by AR 385-40."  

8.  The applicant also provided an eyewitness statement, dated 15 December 2003, from a pilot at the time in question.  He attests that on 24 August 1965 his aircraft was the primary Command and Control aircraft, that they were inserting infantry troops into combat landing zones, that enemy fire had been reported in the area, that he observed one of the gunships apparently hit by ground fire and having difficulty controlling the aircraft, and that it crashed into a heavily wooded area.  He states that he proceeded immediately to hover over the downed aircraft, that he watched as all four crew members exited the severely damaged aircraft, that he could see the crew members had suffered injuries, that he picked up the crew members, and that he took the crew to the nearest medical facility.  He further states that at the time of the incident he did not know the names of the crew members of the downed aircraft and only later found out that the applicant was the pilot of the downed aircraft.  He states that the incident in which the applicant was injured was a combat operation.

9.  The applicant also provided 1966 service medical records which state, in pertinent part, that he was in an aircraft accident in August 1965, that he had a crash in a helicopter in Vietnam in August 1965, and that he injured his back.

10.  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.  

11.  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.  Although the applicant contends that he was treated at the 8th Field Hospital and the 8th Medical Detachment, regrettably there is no evidence of record to support this contention.  There is no contemporaneous medical documentation which shows the applicant was treated for injuries as the result of hostile action on 24 August 1965 in Vietnam.  There are no orders for the Purple Heart issued 

by the hospital commander rendering treatment as provided by the governing regulation in effect at the time.  The 1966 service medical records provided by the applicant state, in pertinent part, that he was in an aircraft accident in August 1965.  

2.  The Crash Facts Message provided by the applicant is not conclusive, it states that the suspect cause of the crash was either a hit by hostile ground fire or low side engine governor failure.  

3.  Since the preponderance of evidence in this case shows the applicant was not wounded or treated for injuries as a result of hostile action in Vietnam, there is insufficient evidence on which to base award of the Purple Heart.   

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)                                         AR20080017273



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ABCMR Record of Proceedings (cont)                                         AR20080017273



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