IN THE CASE OF:	  

		BOARD DATE:	  9 March 2010

		DOCKET NUMBER:  AR20090016118 


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, the sister and next of kin of a deceased former service member (FSM), requests that the FSM be awarded the Purple Heart. 

2.  The applicant states, in effect, that eyewitness evidence was uncovered during the crash site investigation that indicates the reason for the helicopter crash was ground fire.
  
3.  The applicant points out that the crash investigation revealed four probabilities for the crash: (1) the pilot inadvertently flew into instrument conditions at night and crashed: (2) aircraft material or mechanical malfunction; (3) aircraft was hit by hostile fire; or (4) radio failure and subsequent maneuvering in instrument conditions.  She indicates that the cause is presented as "unknown" with speculation that pilot error, becoming disoriented in "IFR" conditions, caused the aircraft to fly into a mountain, that maintenance records revealed no issues, that the pilot made radio contact with field location after takeoff (indicating that aircraft communication equipment was functioning properly), and that various weather reports indicated broken conditions but within flying parameters.  She also indicates that search and rescue did not indicate weather as being a factor in the search effort started within 2 hours of the crash and that the investigating authority properly declared the cause of the crash as "unknown" and without evidence of hostile fire postulated pilot error as a likely cause since mechanical malfunctions and radio problems could be reasonably eliminated and evidence of hostile fire existed.

4.  The applicant points out that the field analysis crash site investigation contained an interview with a witness who saw the crash and revealed that he shot at the helicopter just before it crashed.  She goes on to state that the investigation reports summarize the witness accounts as accurate, that the crash site was a "washed out creek area" as opposed to an outcropping or steeply angled feature, that visibility near the ground was reported as good, and that crashing while in "IFR" conditions would have most likely involved an outcropping or mountain top.            

5.  The applicant states that the Joint Prisoner of War (POW)/Missing in Action (MIA) Accounting Command report summarizes the effort to locate the FSM's aircraft culminating in verification of remains and completion of case and that pages 5 and 6 provide relevant details of the site revealed by the local population, statements by a witness describing he shot down the aircraft along with supporting certificates, discovery and investigation of the crash site, and identification of remains.

6.  The applicant concludes that the crash investigation could only list the cause as "unknown" because the investigating official had no information to determine a specific cause.  Specifically, the official did not have access to residents who reported shooting at the aircraft.  Subsequent witness testimony and certificates and the nature of the crash site point to hostile fire as being the likely cause of the crash which justifies awarding the Purple Heart to the FSM.  

7.  The applicant provides a letter, dated 10 April 2003, from the Military Awards Branch, U.S. Total Army Personnel Command, Alexandria, Virginia; a memorandum for record, dated 16 June 2009, from the Military Awards Branch, U.S. Army Human Resources Command, Alexandria, Virginia; extracts of a Summary Report of Missing UH-1D; extracts of a detailed report of investigation of Case 0224; and a Joint POW/MIA Accounting Command Report; a DD Form 1300 (Report of Casualty); a DA Form 7302 (Disposition of Remains Statement); the FSM's birth certificate; and her birth certificate in support of her 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 FSM’s military records are not available for review.  However, this case is being considered using reconstructed records which primarily consists of the records provided by the applicant.

3.  The applicant provided a copy of the Summary Report on the FSM's missing aircraft, dated 4 January 1966.  The report states, in pertinent part, that based on the information available the following probabilities were believed pertinent: 
(1) the pilot inadvertently flew into instrument conditions at night and crashed, or (2) the aircraft had material or maintenance failure and crashed, or (3) the aircraft was hit by hostile fire resulting in material failure and a subsequent crash, or 
(4) the pilot experienced complete radio failure after becoming "IFR" and flew on instruments to let down in an area clear of high terrain and crashed on let down.  The cause factors were unknown, the most probable cause factor is the pilot becoming inadvertently "IFR" at night and flying into the mountain in the vicinity of the An Khe Pass.

4.  Item 2 (Casualty Status) on the FSM's DD Form 1300 (Report of Casualty), dated 29 December 1966, shows an "X" in the "Non-Battle" block and states "Pursuant to the provisions of Section 555, Title 37, U.S.C., upon direction and delegation by the Secretary of the Army, the Chief, Personnel Actions Division, Office of the Adjutant General, finds Specialist Five [the FSM's name] to be dead.  He was officially reported as missing as of the twenty eighth day of December 1965.  For the purpose stated in Section, death is presumed to have occurred on the twenty ninth day of December 1966 [sic] (appears to be a typographical or administrative error).  Commenced tour in Vietnam 15 September 1965."  This form also states, in pertinent part, that "Missing report issued 5 January 1966.  He was crew chief aboard UH-1D helicopter on service mission when radio contact was lost.  An extensive search and continuous check of all possible sources of information have produced no positive evidence of his fate.  However, all the circumstances of his disappearance without any trace, can lead only to the presumption that he is no longer alive.  Commanding General, U.S. Army, Vietnam has also recommended this action."      

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

6.  The Vietnam Casualty Roster shows the FSM died while missing on 
29 December “1966.”

7.  The applicant provided a letter, dated 10 April 2003, from the Chief, Military Awards Branch, U.S. Total Army Personnel Command, Alexandria, Virginia which shows she was issued the Air Medal with Numeral 7, the Good Conduct Medal, the Expert Marksmanship Qualification Badge with Rifle Bar, the Vietnam Service Medal with two bronze service stars, the Republic of Vietnam Campaign Medal with Device (1960), the National Defense Service Medal, the Aviation Badge, the Presidential Unit Emblem, and the Meritorious Unit Emblem in recognition of the FSM's faithful and dedicated service. 

8.  The applicant provided pages 105 through 114 of a message, dated July 2006, titled "Detailed Report of Investigation of Case 0224 (VM-02249, VM-022 50, VM-02251 and VM-02292)" conducted during the 85th Joint Field Activity in the Socialist Republic of Vietnam.  The message states, in pertinent part, that acknowledged comments in this report are based on field analysis and are not intended to provide final analytical conclusions.  The message states, in pertinent part, that on 29 and 30 April 2006, the investigation team investigated case 0224 in Gia Lai Province, that the investigation team interviewed two witnesses, and that one witness (a former member of the Ya Hoi Village Militia) reported that in “1966” he shot at a U.S. helicopter and the helicopter crashed.  The witness stated that when he later visited the crash site he observed six sets of burned remains and the other witness had only hearsay regarding the crash but also saw charred remains when he visited the crash site.  The witness showed the investigation team a Certificate of Achievement, dated December 1965, for shooting down a helicopter.  The investigation team surveyed the crash site identified by the witnesses and recovered items consistent with a UH-1 helicopter, personal effects, and crew related gear.  The message states that field analysis indicates the witness accounts correlate well with the circumstances of loss associated with Case 0224.  

9.  The applicant provided the Joint POW/MIA Accounting Command report, dated 10 April 2009.  The report states, in pertinent part, that on 28 December 1965 four crew members of a UH-1D helicopter assigned to Aviation Company, 7th Special Forces Group left on a supply mission and the flight was to have lasted about ten minutes.  One of the crew members contacted the An Khe operations for a weather update at the destination location.  After being briefed on the weather, no further communication was heard from the crew.  An intensive search and rescue effort was conducted for four days after the helicopter was reported overdue.  However, no evidence of a crash site or any information as the whereabouts of the missing crew could be found.  On 29 December 1966, the U.S. Army declared the presumptive finding of death for the four crew members, bodies not recovered.  The analytical summary states that from 1993 to 2005 joint teams conducted several witness interviews concerning Case 0224 and surveyed several helicopter crash sites which turned out to be a resolved helicopter crash site or were operational loss helicopters.  Finally in 2006 a team located a crash site, for which the recovered material evidence indicated at least one individual was in the aircraft at the time of impact.  In March 2009 a team successfully excavated the Case 0224 crash site recovering human remains, the FSM's identification tag, and other life support items.   

10.  The applicant provided a memorandum for record, dated 16 June 2009, from the Chief, Military Awards Branch, U.S. Army Human Resources Command, Alexandria, Virginia.  This memorandum states the Joint POW/MIA Accounting Command's report on the helicopter crash of 28 December 1965 fails to indicate that the crash was caused by hostile fire or action.  The Military Awards Branch contacted the U.S. Army Combat Readiness and Safety Center at Fort Rucker in order to determine the status of the crash and an official of the Freedom of Information Act office at the center informed them that they did have an accident report on file for the aircraft.  Fort Rucker only collects/retains reports on non-hostile aircraft incidents.  Therefore, it was determined that without further evidence that the helicopter went down due to hostile action, the Military Awards Branch was unable to authorize award of the Purple Heart. 

11.  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.  

DISCUSSION AND CONCLUSIONS:

1.  The applicant's contention that eyewitness evidence was uncovered during the crash site investigation that indicates the reason for the FSM's December 1965 helicopter crash was ground fire was noted.  However, the detailed report of investigation which contains eyewitness evidence (interview from witness in 2006 who claims he shot at a U.S. helicopter and the helicopter crashed in the winter months of “1966”) is not conclusive.  It states that acknowledged comments contained in the report are based on field analysis and are not intended to provide final analytical conclusions.  

2.  Since the Joint POW/MIA Accounting Command's report on the FSM's helicopter crash of 28 December 1965 fails to indicate that the crash was caused by hostile fire or action, regrettably, there is no basis for granting the applicant's request.  
  


BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

____x____  ___x_____  ____x____  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

1. 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.

2.  The Board wants the applicant and all others concerned to know that this action in no way diminishes the sacrifices made by her late brother in service to the United States during the Vietnam War.  The applicant and all Americans should be justifiably proud of his service in arms.




      _______ _   __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)                                         AR20090016118



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ABCMR Record of Proceedings (cont)                                         AR20090016118



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