IN THE CASE OF:	  

		BOARD DATE:	       21 APRIL 2009

		DOCKET NUMBER:  AR20090001737 


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 that the records of her deceased husband, a former service member (FSM), be corrected to show the type of death as hostile instead of non-hostile.

2.  The applicant states that the FSM died while on a combat mission as an 
MH-47 helicopter pilot as part of the Special Operations Task Force in support of Operation Enduring Freedom-Philippines (OEF-P), which the Army Chief of Staff designated by memorandum, dated 15 December 2005, as a hostile environment where Soldiers were exposed to the threat of enemy action or fire, either directly or indirectly.  She adds that she has copies of the briefing that the Commander of the 160th Special Operations Aviation Regiment (Airborne) gave her about the circumstances of her husband's death while serving in OEF-P and concludes that that the characterization of his death as non-hostile is an insult to him and those with whom he served.

3.  The applicant provides a copy of the FSM's DD Form 1300 (Report of Casualty), dated 6 March 2002; and a copy of a memorandum, dated 15 December 2005, authorizing the shoulder sleeve insignia-former wartime service (SSI-FWTS) for Soldiers serving in OEF-P in support of her 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.  With prior enlisted service, the applicant's records show he was appointed as a Reserve warrant officer one and executed an oath of office on 3 August 1995.  He subsequently completed the Initial Entry Rotary Wing and Aviation Warrant Officer Basic Course, the CH-47 Aviator Qualification Course, and was promoted to chief warrant officer two on 3 August 1997.  He initially served at Fort Campbell, KY, and was reassigned to E Company, Special Operations Aviation Regiment (Airborne), Korea, in June 2001.

3.  On 22 February 2002, the FSM died in a helicopter accident.  He was onboard a helicopter that went down off the coast of the Philippines near Basilan Island.  The crash resulted in his drowning and multiple blunt force injuries.  He was pronounced dead upon recovery and arrival at a nearby medical treatment facility.

4.  The DD Form 1300 prepared on 6 March 2002 shows the type of death as "non-hostile."  This form further shows the cause/circumstances of death as an accident and that the FSM received injuries in a government-owned helicopter that crashed on 22 February 2002.

5.  The applicant submitted a memorandum, dated 15 December 2005, that shows the Army Chief of Staff approved a request by the Commanding General, U.S. Army Special Operations Command, Fort Bragg, NC, to authorize the wear of an SSI-FWTS for Soldiers who served in support of OEF-P from 9 January 2002 to a date to be determined and indicated that these Soldiers were in a hostile environment and were exposed to the threat of enemy action or fire, directly or indirectly.

6.  Army Regulation 600-8-1 (Army Casualty Program) prescribes policies and tasks that govern U.S. Army casualty operations, to include casualty reporting, casualty notification, and casualty assistance.  It states, in pertinent part, that the Casualty and Memorial Affairs Operations Center (CMAOC) of the U.S. Army Human Resources Command issues the DD Form 1300 as the official certificate of casualty.  The DD Form 1300 provides an official record of death or missing status of persons.  Government agencies use the completed DD Form 1300 as a basis for paying benefits, collecting casualty data, and closing out active personnel files.  The DD Form 1300 may be used for any matter where proof of death is required.

7.  Army Regulation 600-8-1 defines a hostile casualty as having been the direct result of hostile action, sustained in combat or relating thereto, or sustained going to or returning from a combat mission provided that the occurrence was directly related to hostile action.  Included are persons killed or wounded mistakenly or accidentally by friendly fire directed at a hostile force or what is thought to be a hostile force.  However, not to be considered as sustained in action and not to be interpreted as hostile casualties are injuries due to elements, self-inflicted wounds, and, except in unusual cases, wounds or death inflicted by a friendly force while the individual is in absent without leave, deserter, or dropped from the rolls status or is voluntarily absent from a place of duty.  The regulation also defines a non-hostile casualty as a person who becomes a casualty due to circumstances not directly attributable to hostile action or terrorist activity.  Casualties due to the elements, self-inflicted wounds, and combat fatigue are non-hostile casualties.

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends that the records of her deceased husband should be corrected to show he died as a result of hostile action.

2.  The evidence of record shows that the FSM became a casualty due to circumstances not directly attributable to hostile action or terrorist activity.  He died as a result of an accident when his helicopter crashed near Basilan Island, Philippines.  There is no evidence that the helicopter crash was a result of hostile action.  Therefore, the entry on his Report of Casualty is correctly marked as "non-hostile."

3.  There are no words that can ease the applicant’s loss even today, more than 7 years after the tragic events that led to the death of her husband.  Losing a loved one is one of the hardest things for anyone to endure.  The applicant and all others concerned should know that this action in no way diminishes the sacrifices made by the FSM in service to our Nation.  The applicant and all Americans should be justifiably proud of his service in arms.


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)                                         AR20090001737



3


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1

ABCMR Record of Proceedings (cont)                                         AR20090001737



4


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1