IN THE CASE OF:	  

		BOARD DATE:	  26 October 2010

		DOCKET NUMBER:  AR20100012127 


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 he be awarded the Purple Heart for injuries received as a result of hostile action.

2.  The applicant states that while he was hospitalized, he reported that although he believed the helicopter crash may have been due to mechanical problems, he believed that they had been hit by enemy fire.  He came into contact with some of the Soldiers from the unit his crew had been supporting at the time of the crash.  These eyewitnesses confirmed that the helicopter was hit with a mortar round.  Their account of the attempted twilight delivery, of a much needed resupply of ammunition and supplies while actively engaging an enemy force, is well documented and matches his recollection of the events. 

3.  He contends it was the research by members of the Delta Raiders, Company D, 2nd Brigade, 501st Infantry, 101st Airborne Division, which led him to find out more about the accident which took place on 24 October 1968, in Vietnam.  Their research revealed letters of condolences which were sent on behalf of the President of the United States, to the parents of the Soldiers who had died in the same helicopter crash.  These letters stated the crash was a result of pilot error or mechanical issues and was not the result of hostile action, and that those involved would not be entitled to the award of the Purple Heart. 

4.  The applicant states the researchers sent an email to the 188th Attack Helicopter Company, informing them of the fact that they were eyewitnesses to the actual crash in which he was the co-pilot.  The intent of their email was to ensure those involved in the crash received the proper awards and recognition they deserved.  

5.  The email revealed that the 188th Attack Helicopter Company showed up around 26 October 1968 to claim the remains of those killed in the accident.  It is the applicant's understanding that the company commander of Company B, 2nd Brigade, 501st Infantry, gave the investigating team from the 188th Attack, all the information which ended up on the accident report.  

6.  The applicant provides the following:

* A copy of his DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge) for the period ending 24 March 1970
* A copy of three separate letters of condolences to the family members of those killed in the helicopter crash
* A copy of an email transmission, dated 28 May 2004, from eyewitness number one 
* A copy of a letter, (no date), from eyewitness number two
* A copy of the accident summary of the crash from the Army Aviation Safety Center database
* Copies of web pages from the book written by the Delta Raiders

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 that he enlisted in the Regular Army on 24 July 1967, under the Warrant Officer Flight Training Program.  He completed basic combat training at Fort Polk, LA and attended Flight School at Fort Walters, TX and at Fort Rucker, AL.  On 11 August 1968, he was honorably discharged for the purpose of accepting his appointment to warrant officer one (WO1).

3.  A copy of his DA Form 66 (Officer Qualification Record) shows in item 
17 (Foreign Service) he served in the Republic of Vietnam during the period 
8 September 1968 through 8 November 1968.  Item 18 (Record of Assignments) shows he was assigned as an aviator with Headquarters and Headquarters Company (HHC), 2nd Brigade, 101st Airborne Division (Ambulance) effective 
15 September 1968.  The next entry on this form shows him in a patient status effective 26 October 1968.

4.  A copy of his DD Form 214, for the period ending 24 March 1970, shows in item 24 (Decorations, Medals, Badges, Commendations, Citations and Campaign Ribbons Awarded or Authorized) he was awarded the National Defense Service Medal, Army Good Conduct Medal (First Award), Vietnam Service Medal, RVN Campaign Medal with Device (1960), Air Medal and the Army Aviator Badge.

5.  A copy of a Standard Form (SF) 502 (Clinical Record – Narrative Summary), dated 9 October 1969, as recorded by an Army medical doctor states, in pertinent part, the 21 year old helicopter pilot was injured when a rocket struck his helicopter resulting in a crash.  Patient sustained burns to face and chest with severe injuries to both his lower extremities and right hand.  Patient was initially treated as an urgent case and further evacuated on 25 October 1968, to a general hospital in Japan.      

6.  A copy of an AGPZ Form 977 (Data for Retired Pay) shows that the applicant was placed on the retired list on 25 March 1970, by reason of permanent disability.  He had completed 2 years, 9 months, and 19 days of active service.

7.  Eyewitness number one gives the following account:  “I was the executive officer of Company D (brigade not given), the evening you took the round and crashed.  I witnessed the entire event and was one of the guys that rescued you.  The co-pilot's name was O’Riley.  I will never forget it because his dog tags were burnt into his chest so we did not try to remove them.  One of our sergeants was also on board with you to kick out the supplies while you hovered.  His name is Fxxxx Wxxxx and he lives in PA.  He was burned pretty badly but recovered well, I understand.  Whatever I can do to help you, consider it done.   Txxx Hxxxxx can be found… I am very sorry you got hit while helping us but I am sure you will be proud to know the supplies you dropped to us and what was scrounged after the crash probably saved a lot of our men.  We were out of water and ammunition almost completely.  The North Vietnamese were thick on that ridge and in the valley on the east.  We killed all we could and you were a brave Soldier for flying into that situation.  The chopper call sign that picked you up was ….”

8.  Eyewitness number two states, in pertinent part, “I have been asked to write you to describe the events of a helicopter crash that occurred in Vietnam during October 1968.  I was the executive officer and acting company commander of Company D, 501st Airborne Battalion, 2nd Brigade, 101st Airborne Division.  My rank was first lieutenant.  WO1 Sxxxx was piloting a Huey type helicopter attempting to resupply our company with needed ammunition and supplies.  A raging firefight had been ongoing throughout most of the day.  We were critically low of ammunition and had sent an emergency message to our battalion headquarters for resupply.  Some minutes later, at dusk, a helicopter arrived on station, identified our smoke signal and hovered above the trees.  Before they could fully kick out all of the supplies to us, a rocket propelled grenade or a 
60 millimeter round hit the tail rotor of the helicopter.  The helicopter immediately dropped, its tail hitting the trees, propelled upward, and dropped nose first back into the trees and on to the ground.  The chopper was engulfed in flames before it hit the ground.”

9.  “We quickly managed to get a rescue group to the helicopter and found WO1 Sxxxx and a couple more survivors.  The pilot, a door gunner and another Soldier never made it out alive.  The fire was so intense; we had to wait until the next morning to retrieve their bodies.  It is an injustice…  They were brave men for hovering above the trees while taking enemy fire.  His actions and the actions of the others in the aircraft probably saved our lives that night.  Without the ammunition we could not have defended ourselves.  I do not know what transpired after the firefight…his aircraft was hit by enemy fire that I witnessed.  His wounds were a direct result of enemy fire.”

10.  Page 1 of the accident summary as described by the Army Aviation Safety Center states, in pertinent part, the helicopter was on a logistical resupply mission for Company D, 501st Infantry Battalion, 2nd Brigade.  The aircraft had refueled at Forward Support Battalion Rxx approximately 15 minutes prior and had taken 1400 pounds of cargo and the two “kick out” men.  The aircraft returned to the first landing zone (LZ) and dropped off approximately 50 pounds of cargo.  The aircraft took off for the second LZ approximately 1000 meters away.  The approach was too fast for the second LZ and the aircraft came to a 10 to 15 foot hover about and 15 to 20 feet past the intended termination area.  The aircraft commander attempted to back the aircraft to the left rear.  In doing so, the tail rotor struck a tree causing the aircraft to turn to the right.  The aircraft began to settle into the trees and power was applied in an attempt to get the aircraft to turn to the right.  This caused the aircraft to continue turning and crash vertically into the ground.  The medical aid man attending WO1 Sxxxx said that WO1 Sxxxx said that he had told the other pilot he was losing RPM prior to the strike. 

11.  The accident summary opined that the accident was probably due to a fast approach to the LZ and attempting to stop the aircraft as close as possible to the LZ.  The summary also noted the approximate weight of the aircraft was 8500 pounds which was not an over gross condition.  It was assumed the aircraft was in a tail low condition from the resulting flare to stop the aircraft as close as possible to the LZ.  The resultant lift from applying full power would bring the aircraft back and down and would account for the tail rotor striking the tree. 

12.  A search of the US Army Human Resources Command, Awards and Decorations Computer Assisted Retrieval System (ADCARS) Data Base; failed to reveal orders for award of the Purple Heart.  The applicant’s name is not listed on the Vietnam Casualty Roster.  

13.  Army Regulation 600-8-22 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.  The applicant’s request for award of the Purple Heart was carefully considered; however, it is not supported by the evidence of record.  

2.  The two eyewitness statements provided by the applicant both give an account of the helicopter hovering, in an attempt to drop supplies in an LZ which was under direct enemy fire.  Both statements concluded that the helicopter was hit in the tail rotor by some type of enemy round.  These reports contain comments from a website but are insufficient to use to make final analytical conclusions.   

3.  The copy of the accident summary from the Army Aviation Safety Center was carefully reviewed.  The report, which was performed at the time, shows that the helicopter crash in which the applicant was injured was investigated and determined by safety officials to have been the result of an accident, not the result of enemy action or sabotage.

4.  The Board is presented with conflicting information concerning whether the helicopter crash was due to operator error or hostile fire.  Two eyewitness accounts of the incident state the helicopter was hit by enemy fire, while the accident investigation fails to indicate that the crash was caused by hostile fire or action.  It is reasonable to place more emphasis on the investigation that was performed at the time.  Therefore, based on the preponderance of the evidence, there is an insufficient basis upon which to grant 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)                                         AR20100012127



3


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1

ABCMR Record of Proceedings (cont)                                         AR20100012127



2


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1