IN THE CASE OF:	

		BOARD DATE:	  04 March 2010

		DOCKET NUMBER:  AR20090016776 


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 and the Aircraft Crewmember Badge, now known as the Aviation Badge (and it will be referred to as Aviation Badge hereafter).

2.  The applicant states that while performing the duties of a door gunner in a helicopter, the helicopter was shot down on 13 September 1969.  He suffered foot and back injuries and he was medically evacuated to Chu Lai, then to Japan and on to the United States.  He believes the omission of the award was due to an oversight.

3.  The applicant provides a copy of his DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge), dated 11 March 1970, in support of his request.

4.  On 26 February 2010, the applicant submitted two notarized witness statements, dated 26 February 2010, 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 enlisted in the Regular Army for a period of 3 years on 29 February 1968.  He completed basic combat and advanced individual training and he was initially awarded military occupational specialty (MOS) 36C (Lineman).  He was honorably released from active duty on 11 March 1970 in the rank/grade of specialist four (SP4)/E-4 and he was transferred to the U.S. Army Reserve Control Group (Standby) for completion of his Reserve obligation.

3.  The applicant's records show that he served in the Republic of Vietnam from on or about 9 March to on or about 27 October 1969.  He was assigned as follows:

	a.  from on or about 18 March to 28 April 1969, in MOS 36C to Company C, 523rd Signal Battalion; 

	b.  from on or about 28 April to 18 September 1969, the 176th Aviation Company in MOS 67N (Helicopter Repairer) and he performed the duties of a door gunner; and

	c.  on 18 September 1969, he was a patient at the 106th General Hospital, enroute to the U.S. Army Hospital, Hunter Army Airfield, GA.

4.  Item 26 (Decoration, Medals, Badges, Commendations, Citations and Campaign Ribbons Awarded or Authorized) of his DD Form 214 shows the National Defense Service Medal, the Vietnam Service Medal, the Vietnam Campaign Medal, and the Air Medal with "V" Device.  Item 24 does not show award of the Purple Heart or the Aviation Badge.

5.  Item 40 (Wounds) of the applicant's DA Form 20 (Enlisted Qualification Record) shows the entry "FX (R) Foot" indicating he sustained a fracture to his right foot.  The date of this injury is listed as 13 September 1969.

6.  The applicant's name is not shown on the Vietnam Casualty Roster.

7.  The applicant's records do not contain official orders awarding him the Purple Heart and/or the Aviation Badge.

8.  A review of the Awards and Decorations Computer-Assisted Retrieval System, an index of general orders issued during the Vietnam era between 1965 and 1973 maintained by the Military Awards Branch of the U.S. Army Human Resources Command, failed to reveal any orders for the Purple Heart and/or the Aircraft Crewmember Badge.

9.  The applicant was awarded the Air Medal with "V" Device for heroism while participating in aerial flight in the Republic of Vietnam on 21 August 1969.  

10.  The applicant's records contain the following medical documents related to his injury:

	a.  Department of the Army Message, dated September 1969, directing the reassignment of several medical evacuees, including the applicant, from Yokota, Japan, to various hospitals throughout the continental United States for further treatment and hospitalization;

	b.  DA Form 3349 (Medical Condition - Physical Profile Record), dated 5 January 1970, showing the applicant was medically qualified for limited duty due to multiple fractures of the right foot;

	c.  DA Form 3349, dated 20 February 1970, showing the applicant was medically qualified for temporary restricted duty due to the dislocation of the metatarsal in his right foot and multiple fractures of the right foot; and

	d.  Standard Form 88 (Report of Medical Examination), dated 4 March 1970, that shows there had been no change in the applicant's medical condition and that he was medically cleared for separation.  

11.  The applicant submitted two notarized witness statements, dated
26 February 2010 as follows:

	a.  in the first statement, a former member of the applicant's unit indicates he served with the applicant at the time as a member of the 176th Aviation.  He states he remembers the applicant's helicopter was shot down in September 1969.  He also states that he visited the applicant in the hospital where he was being treated for lower back and foot injuries; and

	b.  in the second statement, a former crew chief of the 176th Attack Helicopter Company indicates the applicant was serving as a door gunner on Aircraft Number 603 on 13 September 1969 when the helicopter was shot down west of Chu Lai, Vietnam.  The applicant was partially thrown out of the helicopter when it crashed and he suffered a severe cut in his back when he hit the floor.  The helicopter then rolled on its right side crushing his leg and foot under the airframe.  Everyone was injured but the applicant had to be taken to a local hospital and ultimately medically evacuated to Japan.  He (the author) and two other individuals received the Purple Heart but the orders never caught up with the applicant who was enroute to Japan at the time. 

12.  Army Regulation 600-8-22 (Military Awards) provides for the following awards:

	a.  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; and 

	b.  the Aviation Badge may be awarded temporarily or permanently as follows:

		(1)  Commanders of any unit with Army aircraft assigned were authorized to publish orders allowing qualified members of that command to wear the Aircraft Crew Member Badge.  To be eligible for temporary award of the Aviation Badge an individual had to be on flying status as a crew chief in the case of crew chiefs, electronic sensor system operators, and flight engineers or as a non-crewmember in the case of observers, medical aidmen, gunners, aircraft maintenance supervisors, or technical inspectors.  The regulation also required individuals to be qualified based on a Class III physical examination, and to hold a principal duty assignment as a crew chief, flight engineer, aircraft maintenance supervisor, observer, gunner, or technical inspector.  These personnel are authorized to wear the badge temporarily until relieved from these duties or they may be authorized permanent wear of the Aviation Badge once they have fulfilled the regulatory requirements for permanent award of the badge. 

		(2)  For permanent award of the Aviation Badge, an individual must have performed in one of the duties specified above for not less than 12 months (not necessarily consecutive) or must have been school trained for a principal duty specified above.  Personnel who are precluded by incapacitation from further flight duty due to wounds sustained as a result of hostile action or injuries resulting from an aircraft accident for which they are not personally responsible are entitled to permanent wear of the Aviation Badge.  Further, an individual who has participated in at least 15 combat missions under probable exposure to enemy fire while serving in the principal duty of crew chief, flight engineer, aircraft maintenance supervisor, observer, gunner, or technical inspector is entitled to permanent award of the Aviation Badge.
13.  Army Regulation 600-200 (Enlisted Personnel Management), in effect at the time, prescribed policies, responsibilities, and procedures pertaining to career management of Army enlisted personnel.  Chapter 9 of this regulation provide for the preparation and submission of the DA Form 20.  Paragraph 9-53 states that item 40 of the DA Form 20 shows the wounds and reflects a brief description of wounds or injuries (including injury from gas) requiring medical treatment, received through hostile or enemy action, including those requiring hospitalization and the date wounded or injured.

14.  Review of the applicant's records indicates entitlement to additional awards and decorations that are not shown on his DD Form 214.

15.  The applicant's service record shows no derogatory information that would disqualify him for the Army Good Conduct Medal (1st Award).  Furthermore, item 38 (Record of Assignments) of his DA Form 20 shows he received "excellent" conduct and efficiency ratings during most of his military service 
(he received an unknown rating while assigned to Fort Lewis, WA, from 
24 August 1968 to 20 September 1968, and another unknown rating while in a patient status at the 106th General Hospital on 18 September 1969).

16.  Army Regulation 672-5-1, in effect at the time, provided that the Army Good Conduct Medal was awarded to individuals who completed a qualified period of active duty enlisted service.  This period was 3 years except in those cases when the period for the first award ended with the termination of a period of Federal military service.  The enlisted person must have had all "excellent" conduct and efficiency ratings and no convictions by a court-martial.  Ratings of "unknown" for portions of the period under consideration were not disqualifying.  Service and efficiency ratings based upon academic proficiency of at least "good" rendered subsequent to 22 November 1955 were not disqualifying.

17.  Headquarters, U.S. Army Training Center, Infantry and Fort Lewis, Fort Lewis, WA, Special Orders Number 303, dated 31 October 1968, awarded the applicant the Marksman Marksmanship Qualification Badge with Rifle Bar 
(M-16).

18.  Headquarters, U.S. Army Training Center, Infantry, Fort Benning, GA, Special Orders Number 93, dated 17 April 1968, awarded the applicant the Expert Marksmanship Qualification Badge with Rifle Bar (M-14).

19.  Department of the Army Pamphlet 672-3 (Unit Citation and Campaign Participation Credit Register) shows during the time of the applicant's assignment to the 176th Aviation Company (from on or about 28 April 1969 to on or about 18 September 1969), his unit was awarded the Republic of Vietnam Gallantry Cross with Palm Unit Citation for service from 24 August 1969 to 31 December 1969 based on Department of the Army General Orders 42, dated 1972.

20.  Appendix B of Army Regulation 600-8-22 shows that during his tour of duty in Vietnam from on or about 9 March 1969 to on or about 27 October 1969, the applicant participated in the TET 69 Counteroffensive (23 February 1969 – 8 June 1969) and Vietnam Summer-Fall 1969 (9 June 1969 – 31 October 1969) campaigns.  This same regulation states that a bronze service star will be awarded for wear on the Vietnam Service Medal for participation in each campaign.

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends that he should be awarded the Purple Heart and the Aircraft Crewmember Badge.

2.  The available evidence shows the applicant suffered a foot injury in the Republic of Vietnam on 13 September 1969.  This injury is listed in item 40 of his DA Form 20, which was used to document combat injuries.  He was medically evacuated from Vietnam through Japan to the United States for treatment. Additionally, he provided two witness statements that support his contention.  It appears that he satisfied the requirements for award of the Purple Heart.  Therefore, he should be awarded the Purple Heart and his DD Form 214 should be corrected to show this award.

3.  Since the applicant was precluded by incapacitation from further flight duty due to wounds sustained as a result of hostile action or injuries resulting from an aircraft accident for which he was not personally responsible, he is therefore also entitled to award of the Aviation Badge and correction of his records to show this award.

4.  General Orders awarded the applicant’s unit the Republic of Vietnam Gallantry Cross with Palm Unit Citation which is not shown on his DD Form 214.  Therefore, he is entitled to correction of his DD Form 214 to show this unit award.

5.  Special Orders awarded the applicant the Marksman Marksmanship Qualification Badge with Rifle Bar (M-16) and the Expert Marksmanship Qualification Badge with Rifle Bar (M-14) which are not shown on his DD Form 214; therefore, he is entitled to correction of his DD Form 214 to show these awards.


6.  The available evidence shows the applicant was awarded the Vietnam Service Medal.  Additionally, his records show he participated in two campaigns while serving in the Republic of Vietnam, therefore, he is entitled to correction of his DD Form 214 to show two bronze service stars to be affixed to his already-awarded Vietnam Service Medal.

7.  The evidence of record confirms the applicant served honorably during the period 29 February 1968 through 11 March 1970.  He attained the rank of 
SP4/E-4, he was awarded the Purple Heart, and he received "excellent" conduct and efficiency ratings throughout his military service.  In the absence of any derogatory information on file that would have disqualified him from the receiving the Army Good Conduct Medal, it would be appropriate to award the applicant the Army Good Conduct Medal (1st Award) based on completion of qualifying service ending with the termination of a period of Federal military service and correct his DD Form 214 to show this award.

BOARD VOTE:

___X___  ___X____  ____X___  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

The Board determined that the evidence presented was sufficient to warrant a recommendation for relief.  As a result, the Board recommends that all Department of the Army records of the individual concerned be corrected by:

	a.  awarding the applicant the Purple Heart for wounds received in action in the Republic of Vietnam on 13 September 1969; 

	b.  awarding the applicant the Aviation Badge; 

	c.  awarding the applicant the Good Conduct Medal (1st Award) for exemplary behavior, efficiency, and fidelity during the period 29 February 1968 through 
11 March 1970; and 


	d.  adding the Purple Heart, the Aviation Badge, the Good Conduct Medal (1st Award), the Republic of Vietnam Gallantry Cross with Palm Unit Citation, the Marksman Marksmanship Qualification Badge with Rifle Bar (M-16), the Expert Marksmanship Qualification Badge with Rifle Bar (M-14), and two bronze service stars to be affixed to his already-awarded Vietnam Service Medal to his DD Form 214.



      _______ _   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)                                         AR20090016776



3


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1

ABCMR Record of Proceedings (cont)                                         AR20090016776



8


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1