IN THE CASE OF:	  

		BOARD DATE:	  4 November 2010

		DOCKET NUMBER:  AR20100012358 


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 correction of his records to show he was awarded the Purple Heart.

2.  He states, in effect, his records should show award of the Purple Heart based upon injuries he incurred while serving in the Republic of Vietnam on 10 May 1971.

3.  He provides copies of the following documents extracted from his medical records:

* An AF Form 565-4 (Clinical Record Coversheet)
* A Standard Form 502 (Clinical Record - Narrative Summary)
* A DA Form 3647-1 (Clinical Record Cover Sheet)

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 record shows he enlisted in the Regular Army as a Warrant Officer Flight Candidate and entered active duty on 10 March 1969.  Upon completion of the Warrant Officer Flight Training Program he was appointed as a warrant officer one on 8 May 1970; he entered active duty on this date and he was awarded military occupational specialty 100B0 (Rotary Wing Aviator).  The highest rank he attained while serving on active duty was chief warrant officer two.  The applicant was released from active duty and transferred to the U.S. Army Reserve Control Group (Reinforcement) on 14 August 1971.

3.  Item 17 (Foreign Service) of his DA Form 66 (Officer Qualification Record) shows he served a tour of duty in the Republic of Vietnam from 21 June 1970 through 15 May 1971.

4.  Item 18 (Record of Assignments) of his DA Form 66 shows that during his tour of duty in the Republic of Vietnam he served in the following capacities during the periods shown:

* 28 June 1970 through 23 February 1971, with duty as a Rotary Wing Attack Pilot in the 92nd Aviation Company 
* 24 February through 9 May 1971, with duty as a Rotary Wing Pilot in the 173d Assault Helicopter Company 
* 10 May to 15 May 1971, as a patient in the Medical Hold Company located at Camp Zama, Japan
* 16 May through 13 August 1971, as a patient in the Medical Hold Company located at Fort Wolters, TX

5.  Neither item 21 (Awards and Decorations) of his DA Form 66 nor item 24 (Decorations, Medals, Badges, Commendations, Citations and Campaign Ribbons Awarded or Authorized) of his DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge) shows he was awarded the Purple Heart.

6.  There is no evidence in the available record and he has not provided any evidence showing he sustained any injuries as a result of hostile action or that he was treated for wounds sustained as a result of hostile action.  Additionally, his name does not appear on the Republic of Vietnam Casualty Roster.



7.  A review of the Awards and Decorations Computer-Assisted Retrieval System (ADCARS), 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 pertaining to the applicant.

8.  He provides copies of the following documents extracted from his medical records:

* An AF Form 565-4, dated 4 August 1971
* A Standard Form 502, dated 6 August 1971
* A DA Form 3647-1, dated 13 August 1971

9.  The aforementioned documents clearly show he accidentally incurred multiple injuries when a helicopter he was riding in had engine failure and crash landed in the Republic of Vietnam on 10 May 1971.

10.  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.  This regulation also provides, in pertinent part, for award of the Purple Heart to individuals wounded or killed as a result of "friendly fire" in the "heat of battle" as long as the "friendly" projectile or agent was released with the full intent of inflicting damage or destroying enemy troops or equipment.  It also provides examples of injuries or wounds which clearly do not justify award of the Purple Heart.  This includes accidents, to include explosive, aircraft, vehicular, and other accidental wounding not related to or caused by enemy action.

DISCUSSION AND CONCLUSIONS:

1.  The applicant's contention that his record should be corrected to show he was awarded the Purple Heart was carefully considered.

2.  His name does not appear on the Vietnam Casualty Roster.

3.  The available evidence shows he sustained injuries when the engine failed in a helicopter in which he was riding and crash landed.  Although this incident occurred in the Republic of Vietnam, it was clearly the result of an accident.  Accidental injuries not related to or caused by enemy action do not meet the eligibility criteria for award of the Purple Heart.  Absent evidence which conclusively shows the applicant sustained wounds or injuries as a result of hostile action or as a result of "friendly fire" in the "heat of battle," that he was treated by medical personnel for those wounds or injuries, and that this treatment was made a matter of official record, there is insufficient basis for awarding him the Purple Heart in this case.

4.  This action in no way diminishes the sacrifices made by the applicant in service to our Nation.  The applicant and all Americans should be justifiably proud of his service in arms.

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)                                         AR20100012358



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ABCMR Record of Proceedings (cont)                                         AR20100012358



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