IN THE CASE OF:	

		BOARD DATE:	  21 January 2010


		DOCKET NUMBER:  AR20090005033 


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 item 5a (Casualty Information - Type) of the DD Form 1300 (Report of Casualty) pertaining to her spouse, a deceased former service member (FSM), be corrected to read "hostile" vice "nonhostile."

2.  The applicant states the FSM's DD Form 1300 erroneously lists his type of casualty as nonhostile when, in fact, it should be listed as hostile.  She states that the FSM died while on a combat mission in an MH-47 aircraft as part of a Special Operations Task Force in support of Operation Enduring Freedom - Philippines (OEF-P).  She notes a memorandum from a former Chief of Staff of the Army, dated 15 December 2005, states that Soldiers who served in support of OEF-P after 9 January 2002 "were in a hostile environment and exposed to the threat of enemy action or fire, either directly or indirectly."

3.  The applicant provides a copy of the DD Form 1300, a copy of the 15 December 2005 memorandum authorizing Soldiers who served in support of OEF-P from January 2002 to a date to be determined to wear the shoulder sleeve insignia-former wartime service (SSI-FWTS), a copy of her spouse's line-of-duty determination, and a copy of a U.S. Army Safety Center Findings and Recommendations.

CONSIDERATION OF EVIDENCE:

1.  Records available to the Board indicate the FSM entered active duty as an enlisted Soldier in October 1986 and served continuously through a series a reenlistments.  On 28 January 1999 he executed an indefinite reenlistment contract.  He was trained as a Medium Helicopter Repairman.

2.  According to the DD Form 1300 provided by the applicant and contained in the FSM's official military personnel file (OMPF), the FSM died on 22 February 2002 from "injuries received in a government-owned helicopter that crashed" near Basilan Island, Philippines.  The report notes the crash was an accident and item 10 (Remarks) contains the statement "Operation Enduring Freedom."

3.  The U.S. Army Safety Center Findings and Recommendations, also provided by the applicant and contained in the FSM's OMPF, notes that human error and individual failure were the cause of the accident.  The document notes:

During [night vision goggle] overwater formation flight at 100 feet [above the water line] and 130 knots [indicated air speed], in deteriorating weather conditions that restricted a visible horizon, the [pilot in control] executed an abrupt evasive maneuver to avoid a rapid closure rate and potential contact with the lead aircraft.  During the maneuver the [pilot in control] also became spatially disoriented and lost control of the aircraft.  As a result, the aircraft descended and impacted the water….  The aircraft was destroyed and all 10 personnel on board were fatally injured.

4.  The 15 December 2005 memorandum submitted by the applicant in support of her request approved a request from the Commanding General, Special Operations Command Pacific, asking for authorization for Soldiers who served in support OEF-P to wear the SSI-FWTS.  The memorandum noted that Soldiers deployed in support of OEF-P complied with the provisions of Army Regulation 670-1 (Wear and Appearance of Army Uniforms and Insignia), paragraph 
28-17(a), for the wear of the SSI-FWTS and paragraph 28-28(d) for wear of overseas service bars.  The memorandum continued that by stating that these Soldiers were in a hostile environment and exposed to the threat of enemy action or fire, either directly or indirectly.

5.  In the processing of this action, an advisory opinion was provided by the U.S. Army's Casualty and Memorial Affairs Division.  That opinion noted that Department of Defense Instruction 1300.18 (Department of Defense Personnel Casualty Matters, Policies, and Procedures) defines the category of hostile casualty as "a person who is the victim of a terrorist activity or who becomes a casualty 'in action.'"  The opinion notes that "in action" characterizes the 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.  Conversely, a non-hostile casualty is "a person who becomes a casualty due to circumstances not directly attributable to hostile action or terrorist activity."  The opinion notes that while the FSM died in an area that was and still is considered to be a hostile area, there is no evidence that enemy or terrorist action caused the helicopter accident that claimed his life and the lives of the other Soldiers.  The applicant was provided an opportunity to respond to the information contained in the advisory opinion but no response was received.

6.  A CNN.com report, dated 24 February 2002, noted the CH-47 Chinook helicopter was on a routine transit from the southern island of Basilan to the islet of Mactan in the southern-central Philippines, where the United States had a logistics air base.  The report noted that Pentagon and Philippine military officials said there was no indication the helicopter was brought down by hostile fire.

DISCUSSION AND CONCLUSIONS:

1.  The evidence clearly shows that the FSM died as a result of a helicopter accident.  While the accident may have occurred in a combat or hostile fire area, the location of the death does not dictate that the death must be characterized as "hostile."

2.  Because the death was the result of an accident and not the result of hostile action or terrorist activity, the DD Form 1300 appropriately recorded the FSM's death as nonhostile.

3.  The Board extends its deepest sympathy to the applicant and her family and appreciates the sacrifices made by the FSM in service to our Nation.  The applicant and her family should be justifiably proud of the FSM's 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.



      ____________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)                                         AR20090005033



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ABCMR Record of Proceedings (cont)                                         AR20090005033



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