IN THE CASE OF:	  

		BOARD DATE:	  29 December 2009

		DOCKET NUMBER:  AR20090013690 


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 award of the Purple Heart.  

2.  The applicant states that he was involved in a helicopter accident that was reported as a pilot error.  However, he knows the record is in error because he was in the helicopter crash and knows the accident was caused by enemy fire.  He knows this because he was completely conscious during the crash.  He was never awarded the Purple Heart for the injuries he suffered during this crash. 

3.  The applicant provides a copy of his DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge), dated 2 February 1969; a copy of his original Veterans Administration (VA) disability compensation; an internet printout, dated 21 May 2009, regarding a helicopter crash; and another internet printout, dated 21 May 2009, of the Vietnam Helicopter Pilot Association, in support of his 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.  The applicant's records show he was inducted into the Army of the United States and entered active duty on 28 June 1967.  He completed basic combat and advanced individual training and was awarded military occupational specialty 67N (Rotary Helicopter Mechanic).  He was honorably released from active duty in the rank/grade of specialist five/E-5 on 2 February 1969 and transferred to the U.S. Army Reserve Control Group (Annual Training) for completion of his Reserve obligation.

3.  The applicant’s records show he served in the Republic of Vietnam from on or about 4 February 1969 to on or about 2 February 1969.  He was assigned to the 188th Assault Helicopter Company, 1st Aviation Brigade.

4.  Item 24 (Decorations, Medals, Badges, Commendations, Citations, and Campaign Ribbons Awarded or Authorized) of the applicant’s DD Form 214 shows he was awarded the National Defense Service Medal, the Vietnam Service Medal, the Vietnam Campaign Medal, and the Air Medal.  Item 24 does not show award of the Purple Heart.

5.  Item 40 (Wounds) of the applicant’s DA Form 20 (Enlisted Qualification Record) contains no entry.  

6.  The applicant's name is not shown on the Vietnam casualty roster and there are no general orders in his records that show he was awarded the Purple Heart.

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

8.  The applicant's available medical records show he underwent a separation physical prior to his separation and indicated that there was no change to his physical condition.  Additionally, there is no record of a combat injury/wound or treatment for any injury/wound in his available medical records.



9.  The applicant submitted a copy of his original VA disability compensation that shows he was awarded compensation for a left shoulder injury; burn scars to his nose, forehead, and right temple with loss of hair; residual of nasal injury; and a healed fracture to his left ankle.

10.  The applicant also submitted a copy of an internet printout, dated 21 May 2009, that chronicles that on 24 October 1968, a UH-1H helicopter was on a logistical resupply mission for Company D, 2nd Battalion, 501st Infantry.  As it approached a landing zone, the tail rotor struck a tree.  The helicopter ultimately crashed to the ground.  The internet article states that the accident was attributed to a pilot error but it was "actually enemy action" and that the aircraft was hovering over a canopy when it took mortar fire.  

11.  Army Regulation 600-8-22 (Military Awards) provides, in pertinent part, that the Purple Heart is awarded for a wound sustained while in action against an enemy or 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.

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends that he should be awarded the Purple Heart.  

2.  The Purple Heart differs from all other decorations in that an individual is not "recommended" for the decoration; rather an individual is entitled to it upon meeting a specific criteria.  When contemplating an award of this decoration, the key issue that must be taken into consideration is the degree to which the enemy caused the injury.  The fact that a proposed recipient was participating in direct or indirect combat operations is a necessary prerequisite, but it is not the sole justification for the Purple Heart.

3.  There is no evidence in his service personnel records that shows he was wounded or injured as a result of hostile action or treated for such wounds; and his name is not shown on the Vietnam casualty roster.  In the absence of documentation that shows he was wounded or injured as a result of hostile action and treated for those wounds, there is insufficient evidence upon which to base awarding him the Purple Heart.





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)                                         AR20090013690





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ABCMR Record of Proceedings (cont)                                         AR20090013690



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