IN THE CASE OF:	  

		BOARD DATE:	  25 August 2009

		DOCKET NUMBER:  AR20090006671 


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, in effect, that his DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge) for the period ending 15 August 1971 be corrected to show award of the Purple Heart.

2.  The applicant states, in effect, that he served with the 176th Assault Helicopter Company (AHC) in the Republic of Vietnam.  His aircraft received multiple hits while on an emergency dust off mission.  A round went through his seat and he received shrapnel wounds in his right shoulder.  At that time, he told the doctor he was not interested in the Purple Heart.  The applicant states that his decision to waive off the medal was his only regret of the war.  He is proud of his service and feels it is something to be proud of and that his children would cherish.

3.  The applicant provides his DD Form 214; a Standard Form (SF) 600 (Chronological Record of Medical Care), with dates 20 November 1970 through 15 February 1971; and Headquarters, 23rd Infantry Division General Orders Number 2107, dated 21 February 1971.

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 had prior enlisted service in the Army.  He was appointed as a Warrant Officer in the U.S. Army Reserve as a helicopter pilot and entered active duty on 13 July 1970.  He arrived in Vietnam and was assigned to the 176th AHC on 14 August 1970.  

3.  A SF 600 reflects an entry made at the 14th Combat Aviation Battalion Dispensary, dated 7 December 1970.  The entry states in cursive writing, “abrasions R[ight] shoulder H2O2 [hydrogen peroxide] wash.”  Above the cursive entry is the printed entry “Scrapnel (sic) wounds (R) shoulder.”

4.  Headquarters, 23rd Infantry Division General Orders Number 2107, dated 
21 February 1971 show that the applicant was awarded the Air Medal with "V" Device for valorous actions while participating in aerial flight in the Republic of Vietnam on 7 December 1970.  The narrative reason for award states the applicant was flying a resupply mission, when he monitored a call for emergency evacuation of a friendly casualty.  Upon reaching the unit, the applicant maneuvered through intense volumes of hostile fire before reaching the pick-up point.  Despite the constant enemy fusillade and the damage his aircraft sustained while approaching, he calmly waited until the wounded Soldier was placed aboard.  Again braving the hostile rounds, he left the landing zone and safely extracted the injured man.

5.  The applicant departed Vietnam on or about 12 August 1971 after being credited with participating in three campaigns.  He was honorably released from active duty on 15 August 1971, and transferred to the U.S. Army Reserve (Control Group).

6.  The applicant's DD Form 214 for the period ending 15 August 1971 show he was awarded the National Defense Service Medal, the Vietnam Campaign Medal with Device (1960), the Vietnam Service Medal, the Army Aviator Badge, and the Air Medal with “V” Device (24th Oak Leaf Cluster).

7.  There are no general orders in the applicant’s service personnel records that show he was awarded the Purple Heart.  His name is not listed on the Vietnam Casualty Roster.  

8.  Item 9 (Awards, Decorations, and Campaigns) of the applicant's DA Form 
2-1(Personnel Qualification Record - Part II) does not show award of the Purple Heart.  

9.  During the processing of this case, a member for the Board staff reviewed the Awards and Decorations Computer Assisted Retrieval System (ADCARS) maintained by the Military Awards Branch of the United States Army Human Resources Command (HRC), which is an index of general orders issued during the Vietnam era between 1965 and 1973.  This review failed to reveal any award of the Purple Heart on file for the applicant.

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, and the medical treatment must have been made a matter of official record.

DISCUSSION AND CONCLUSIONS:

1.  There are no orders in the applicant’s service personnel records that show that he was awarded the Purple Heart.  The applicant provided Headquarters, 23rd Infantry Division General Orders Number 2107, dated 21 February 1971 that show he was awarded the Air Medal with "V" Device for valorous action while participating in aerial flight on 7 December 1970.  However, those orders do not mention in the narrative reason for award that he received wounds as a result of his actions.  Normally, a valor award would indicate words to the effect, “Despite the constant fusillade and the damage to his aircraft, and despite suffering painful wounds, the pilot landed his aircraft….”

2.  The applicant provided a SF 600 with an entry, dated 7 December 1970, that contains two different forms of writing.  One shows he sustained abrasions to his right shoulder and that the abrasions were swabbed with hydrogen peroxide.  The second entry indicates “scrapnel (sic – shrapnel) wounds” to his right shoulder.  When deciding whether to give greater credence to the applicant’s shoulder abrasions or a shrapnel wound, the evidence weighs more heavily on the former than the latter. Nowhere in his records does it indicate he was wounded.  His DA Form 2-1 does not mention wounds, there are no Purple Heart orders for wounds, he is not on the Vietnam Casualty Roster as having been wounded, and his Air Medal for Valor citation does not indicate that he was wounded.

3.  Regrettably, in view of the foregoing, there is insufficient evidence that would warrant granting the applicant's request.
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)                                         AR20090006671





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ABCMR Record of Proceedings (cont)                                         AR20090006671



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