DOCKET NUMBER:  AR20090003775 


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 correction of his DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge) to show the Distinguished Flying Cross with second oak leaf cluster.  He also requests award of the Purple Heart.

2.  The applicant states that he received three awards of the Distinguished Flying Cross.  He also claims that he received injuries to his back and left leg in a helicopter crash on 11 October 1969 in Vietnam, that he was treated at a hospital for his injuries, that after he recovered from his injuries he was placed back on flight status, and that he was informed he would be awarded the Purple Heart.  However, he never received the medal.

3.  The applicant provides three helicopter photographs; three orders for the Distinguished Flying Cross; reassignment orders; orders for the Air Medal (12th through 20th Award); and a copy of his DD Form 214 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.  The applicant entered active duty on 9 February 1968.  He arrived in Vietnam on 3 July 1969.  He served as a helicopter pilot assigned to Company C, 101st Aviation Battalion (Assault Helicopter), 101st Airborne Division, in Vietnam from 16 July 1969 through 2 July 1970.  On 3 September 1973, he was released from active duty.

3.  The applicant's DD Form 214 shows the National Defense Service Medal, the Vietnam Service Medal, the Republic of Vietnam Campaign Medal with Device (1960), the Army Commendation Medal, the Bronze Star Medal, the Distinguished Flying Cross with first oak leaf cluster, the Army Aviator Badge, and the Air Medal (20th Award) as authorized awards.

4.  Headquarters, 101st Airborne Division (Airmobile), General Orders Number 707, dated 31 January 1970, show the applicant received the Distinguished Flying Cross for heroism on 14 December 1969 in Vietnam.

5.  Headquarters, 101st Airborne Division (Airmobile), General Orders Number 6429, dated 7 June 1970, show the applicant received the Distinguished Flying Cross with first oak leaf cluster for heroism on 15 March 1970 in Vietnam.

6.  Headquarters, 101st Airborne Division (Airmobile), General Orders Number 12579, dated 18 October 1970, show the applicant received the Distinguished Flying Cross for heroism on 25 May 1970 in Vietnam.

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

8.  The applicant's name does not appear on the Vietnam casualty roster.

9.  There are no contemporaneous service medical records available.

10.  Review of the Awards and Decorations Computer-Assisted Retrieval System, an index of general orders issued during the Vietnam era between 1965 and 1973 maintained by the Military Awards Branch of the United States Army Human Resources Command, failed to reveal any orders for the Purple Heart.

11.  In support of his claim for award of the Purple Heart, the applicant provided three photographs of a damaged helicopter.  However, there is no evidence of record which shows this helicopter crashed as a result of hostile action in Vietnam.

12.  Records show the applicant participated in four campaigns during his assignment in Vietnam.

13.  Department of the Army General Orders Number 8, 1974, announced award of the Republic of Vietnam Gallantry Cross with Palm Unit Citation to Headquarters, U.S. Military Assistance Command, and its subordinate units during the period 8 February 1962 to 28 March 1973 and to Headquarters, U.S. Army Vietnam, and its subordinate units during the period 20 July 1965 to 28 March 1973.

14.  Department of the Army Pamphlet 672-3 (Unit Citation and Campaign Participation Credit Register) lists the unit awards received by units serving in Vietnam.  This document shows the applicant's unit at the time of his assignment was awarded the Republic of Vietnam Civil Actions Honor Medal First Class Unit Citation based on Department of the Army General Orders Number 48, dated 1971.

15.  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.

16.  U.S. Army Vietnam 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.

17.  Army Regulation 600-8-22 also states that the first oak leaf cluster is awarded to denote the second and succeeding awards of certain decorations, among which is the Distinguished Flying Cross.

18.  Army Regulation 600-8-22, in pertinent part, authorizes award of a bronze service star based on qualifying service for each campaign listed in appendix B of this regulation and states that authorized bronze service stars will be worn on the appropriate service medal, including the Vietnam Service Medal.
DISCUSSION AND CONCLUSIONS:

1.  Orders show the applicant received three awards of the Distinguished Flying Cross.  Therefore, his DD Form 214 should be corrected to show the Distinguished Flying Cross with second oak leaf cluster.

2.  Although the applicant contends that he was treated at a hospital for his injuries to his back and left leg as a result of a helicopter crash on 11 October 1969 in Vietnam, 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 11 October 1969 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.  In addition, there is no evidence of record which shows the helicopter in the photographs provided by the applicant crashed as a result of hostile action in Vietnam.  Therefore, there is insufficient evidence on which to base award of the Purple Heart.

3.  The applicant participated in four campaigns during his assignment in Vietnam which makes him eligible for award of the Vietnam Service Medal with four bronze service stars.  Therefore, the applicant's records should be corrected to show these bronze service stars.

4.  The applicant's unit was cited for the Republic of Vietnam Civil Actions Honor Medal First Class Unit Citation while he was assigned to it.  Therefore, his DD Form 214 should be corrected to show this unit award.

5.  The Republic of Vietnam Gallantry Cross with Palm Unit Citation was awarded to all units that served in Vietnam.  The applicant served in Vietnam during a qualifying period and is eligible for this award.  Therefore, it would be appropriate to add this foreign unit award to his DD Form 214.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

___x_____  ____x___  ____x___  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION



BOARD DETERMINATION/RECOMMENDATION:

1.  The Board determined that the evidence presented was sufficient to warrant a recommendation for partial relief.  As a result, the Board recommends that all Department of the Army records of the individual concerned be corrected by amending the applicant's DD Form 214 to show the Distinguished Flying Cross with second oak leaf cluster, the Vietnam Service Medal with four bronze service stars, the Republic of Vietnam Civil Actions Honor Medal First Class Unit Citation, and the Republic of Vietnam Gallantry Cross with Palm Unit Citation.

2.  The Board further determined that the evidence presented is insufficient to warrant a portion of the requested relief.  As a result, the Board recommends denial of so much of the application that pertains to award of the Purple Heart.



      ___________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)                                         AR20090003775



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ABCMR Record of Proceedings (cont)                                         AR20090003775



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