BOARD DATE:	  27 October 2009

		DOCKET NUMBER:  AR20090008640 


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 he be awarded the Purple Heart and that his two Army Commendation Medals (ARCOMs) with "V" Device (for valor) be upgraded to two awards of the Distinguished Flying Cross (DFC).

2.  The applicant states that he believes that his two ARCOMs with "V" Device should be upgraded to DFCs because he was recommended for DFCs and was told that all pilots of the 1st Cavalry Division who participated in the invasion of Cambodia were to be awarded the DFC.  However, no Cavalry pilots were awarded the DFC for their participation in the invasion of Cambodia.  He adds that when his recommendation for the Soldier's Medal was downgraded to an ARCOM with "V" Device, awarding him the DFC had been discussed.

3.  As for the Purple Heart, the applicant states that while flying a helicopter for the 1st Cavalry Division in Vietnam, he had an engine failure while taking off from a fire support base.  He was wearing body armor and he landed pretty hard.  He broke his back but did not tell anyone because he was nineteen, stupid, and going to live forever.  But the main reason for not telling anyone was that he did not want to be taken off flight duty.  The following day the maintenance sergeant informed him that he had been shot down.  They had found evidence of a bullet passing through the engine, which resulted in the crash.

4.  The applicant provides the award recommendations for his two ARCOMs with "V" Device with associated documents; a letter from the Military Awards Branch, Human Resources Command (HRC), Alexandria with an excerpt from the applicant's unit's daily staff journal; a letter he sent his elected representative; a letter he sent to HRC Awards Branch; eyewitness statements; and printouts describing the Soldier's Medal and the Air Medal.

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's military records show that he entered active duty as a warrant officer on 23 February 1970 with 1 year, 2 months, and 11 days of prior service.  He served in Vietnam from 30 March 1970 to 30 October 1971 and again from 27 August 1972 to 15 February 1973.

3.  While in Vietnam, the applicant was recommended for award of the ARCOM with "V" Device for valorous action on 14 May 1970.  The proposed citation shows he was recommended for the award because of him flying in much needed supplies to a unit in adverse weather conditions and limited visibility.  The Disposition Form recording the final action on the recommendation shows one of the officers who constituted the local awards board made the comment "Seems like achievement rather than valor" and recommended the applicant be awarded the "AM 'A'" (Air Medal for Achievement).  However, the recommendation for the ARCOM with "V" Device was approved.

4.  While in Vietnam, the applicant was recommended for award of the Soldier's Medal for valorous action on 6 July 1970.  The narrative description of the action shows that the applicant flew a rescue mission for two wounded men, one of whom was seriously wounded.  The landing zone was heavily forested and required the applicant to hover while the wounded Soldier was loaded into the helicopter.  The local awards board recommended approval but one awards board member recommended that the award be downgraded to an Air Medal with "V" Device.  That awards board member added that the applicant's actions was "not of degree of heroism as for DFC."

5.  The applicant was honorably released from active duty on 19 February 1973.  His DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge) shows that he was awarded the National Defense Service Medal, Army Aviator Badge, Vietnam Service Medal, Vietnam Campaign Medal w/60 Device, Air Medal (2nd – 68th Award), Army Commendation Medal (2 Oak Leaf Clusters), Bronze Star Medal (2 Oak Leaf Clusters), and the Air Medal with "V" Device (2 Oak Leaf Clusters).  His DD Form 214 was later corrected to show that he was awarded the 2nd through the 74th Air Medal.

6.  The applicant's medical records are apparently complete.  There is no mention of the applicant breaking his back or sustaining any wounds in his records.

7.  In the letter from the HRC Awards Board submitted by the applicant, it was stated that the Awards Board reviewed the casualty records for the Vietnam era and the applicant's name was not amongst those listed.  The Awards Board continued that the applicant's unit's daily staff journal records his helicopter (ND 083) as down, due to possible engine failure, but there are no records to show that his aircraft was downed as a direct result of enemy action.  The Awards Board continued that they contacted the Support Directorate, U.S. Army Safety Center since that department possesses the official safety reports of downed aircraft from the Vietnam era.  The Safety Center did not possess an accident report concerning this incident.  The Awards Board concluded that there was insufficient evidence to award the applicant the Purple Heart and recommended that he contact the National Personnel Records Center to obtain his unit's morning reports which would show if he was injured.  The Awards Board provided the applicant a DA Form 1694 (Daily Staff Journal) which has the entry "ND 083 is down at Margret, possible engine failure."

8.  One of the witness statements provided by the applicant is from the Aircraft Commander on the flight when it crashed, who stated that while they believed engine failure caused the crash, he has learned since that the cause of the engine failure was hostile fire instead of mechanical failure.  The second statement is from an individual who says he served with the applicant.  This individual says "This was common knowledge in the company although evidence of the shoot down, a bullet in the engine's compressor, was not discovered until the following day."  He adds that the applicant confided in him that his back had been injured due to the helicopter's hard landing.  The third statement is from an individual who states that he served as the applicant's door gunner on more than one occasion.  He continues that an enemy rifle round caused the applicant's helicopter to crash, but that was not discovered until two days after the crash.  He adds that the applicant was medically evacuated to Japan.  The fourth statement from an individual who states he arrived in Vietnam after the applicant's helicopter crash.  However, since he worked in the maintenance platoon, he had the opportunity to review the incident and helped to fix the helicopter.  He states that the helicopter was shot down by enemy fire.

9.  Army Regulation 600-8-22 (Military Awards) provides that the Purple Heart is awarded for wounds 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 a medical officer, and the medical treatment must have been made a matter of official record.

10.  Army Regulation 600-8-22 provides that the Air Medal is awarded in time of war for heroism, for meritorious achievement (single acts of a lesser degree than which required for the Distinguished Flying Cross) and for meritorious service (sustained distinction in the performance of duties).

11.  Army Regulation 600-8-22 states that the DFC is awarded for heroism or extraordinary achievement during aerial flight.  The performance of the act of heroism must be evidenced by voluntary action above and beyond the call of duty.  As with all personal decorations, formal recommendations, approval through the chain of command, and announcement in orders are required.  Recommendations must be made within 2 years of the event or period of service and the award must be made within 3 years.  There are regulatory provisions for lost recommendations but not for late recommendations, reconsideration, nor for upgrading to a more prestigious award.  No precondition, such as promises of a specific award for the attainment of some particular goal, may be established.  Anyone may recommend another individual for an award and doing so is a subjective decision.  Likewise, the decision as to whether or not an award is approved, downgraded or disapproved is subjectively made by the commander having approval authority.  War-time approval authority for the DFC rests with commanders in the grade of major general or higher.  It may be delegated to brigadier generals commanding tactical units while filling a major general's position.

DISCUSSION AND CONCLUSIONS:

1.  While the statements provided by the applicant all support his contention that the helicopter was shot down, it would be reasonable to assume that there would be some record to show the crash was due to hostile action.  However, whether or not the applicant's helicopter was shot down is not the issue in this case.  By the applicant's own admission, and as verified by his medical records, he was never treated for any injury when his helicopter crashed.  Since he was 
not treated for any wounds, and since a requirement for award of the Purple Heart is treatment for a wound, there is no basis for awarding him the Purple Heart.

2.  While the applicant believes that his valorous actions should have warranted a higher-level decoration (the DFC), the evidence shows that the commander who approved the applicant's two Air Medals with "V" Device made the decision that his valorous actions were properly recognized with the Air Medal with "V" Device.  The applicant has not provided any evidence or argument which would show that that he should have received a higher-level award than the Air Medal with "V" Device. 

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)                                         AR20090008640





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