IN THE CASE OF:	  

		BOARD DATE:	  23 November 2010

		DOCKET NUMBER:  AR20100013923 


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.  He states that from the beginning he was told that he was not eligible for award of the Purple Heart.  The Department of Veterans Affairs has advised him this is not true.  He states that item 10 of his DA Form 199 (Physical Evaluation Board (PEB) Proceedings), dated 16 December 1971, shows his injuries were a result of armed conflict or caused by an instrumentality of war.  Therefore, he is entitled to award of the Purple Heart.

3.  He provides a DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge) for the period ending 3 March 1971 and a DD Form 199.

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 had prior enlisted service in the Army.  He was appointed as a warrant officer in the U.S. Army Reserve as a helicopter pilot and entered active duty on 5 April 1971.  He arrived in the Republic of Vietnam (RVN) and was assigned to Company A, 123rd Aviation Battalion, 23rd Infantry Division, on 9 July 1971.

3.  A DA Form 2173 (Statement of Medical Examination and Duty Status), dated 31 August 1971, indicates he was involved in a helicopter crash on 21 August 1971 which was believed to have been caused by mechanical failure at Fire Support Base Dottie, RVN.  Item 30 (Details of Accident – Remarks) shows his acting commander conducted an informal line-of-duty investigation which determined that his aircraft took off from Fire Support Base Dottie southwest of Chu Lai, RVN.  His aircraft banked left at a low altitude, lost lift, and the rotor blades struck the ground causing an accident.

4.  He was treated at the 95th Evacuation Hospital, RVN, for a skull fracture and deep multiple lacerations to his left eye region.  He was evacuated to the Medical Holding Company, Medical Department Activity, Fort Gordon, GA, on 27 August 1971.

5.  On 16 December 1971, a PEB found him unfit due to ocular muscle function (impairment of producing diplopia in 14-16 rectangles), rated as 15/200 vision in one eye and 20/40 vision in the other eye.  The PEB rated his condition as 
20-percent disabling and recommended separation with severance pay.

6.  Item 10 (If Retired Because of Disability) of his DA Form 199 indicates the PEB made the recommended finding that, if retired, his retirement be based on disability resulting from injury or disease received in the line of duty as a direct result of armed conflict or caused by an instrumentality of war and incurred in the line of duty during a period of war.

7.  On 3 March 1972, he was honorably discharged under the provisions of Army Regulation 635-40 (Physical Evaluation for Retention, Retirement, or Separation) due to disability with severance pay and a 20-percent disability rating.  He completed a total of 4 years, 10 months, and 2 days of active military service.

8.  His DD Form 214 for the period ending 3 March 1972 does not show award of the Purple Heart.

9.  There are no general orders in his service personnel records that show he was awarded the Purple Heart.  His name is not listed on the Vietnam casualty roster.

10.  Item 21 (Awards and Decorations) of his DA Form 66 (Officer Qualification Record) does not show award of the Purple Heart.

11.  During the processing of this case, a member of the Board 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 award of the Purple Heart on file for the applicant.

12.  Army Regulation 600-8-22 (Military Awards) provides 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.  It is acknowledged that the applicant served in the Vietnam Conflict as a helicopter pilot.  However, there are no orders in his service personnel records that show he was awarded the Purple Heart.  There is no evidence in the available records and he has not provided evidence that shows his injuries were the result of hostile action.  In addition, the DA Form 2173 he provided clearly shows his injuries were not the result of hostile action.

2.  The evidence of record shows his commander was aware of his injuries and conducted an informal line-of-duty investigation that indication he received his injuries from a helicopter accident after it crashed presumably by mechanical failure and non-combat related.  This evidence does not support his contention that the DA Form 199 shows he is eligible for award of the Purple Heart.

3.  The key to award of the Purple Heart is an injury sustained as a result of hostile action, not just the fact the injury was received as a direct result of armed conflict or caused by an instrumentality of war and incurred during a period of war

4.  Regrettably, in the absence of military records which show he was injured as a result of hostile action, there is an insufficient basis for award of the Purple Heart in this case.


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)                                         AR20100013923



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ABCMR Record of Proceedings (cont)                                         AR20100013923



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