IN THE CASE OF:	  

		BOARD DATE:	  23 December 2010

		DOCKET NUMBER:  AR20100016455 


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 her deceased husband, a former service member (FSM), be awarded the Silver Star and the Purple Heart.

2.  The applicant states that her deceased husband was seriously injured during his active service and was declared 100-percent disabled.  He spent 9 months in a Department of Veterans Affairs hospital.  All his belongings, including his medals, were lost.  He later asked for replacement medals, but the Silver Star and Purple Heart were not listed.

3.  The applicant provides:

* FSM's DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge)
* VA disability compensation letter
* Honorable Discharge Certificate
* marriage license
* FSM's death certificate

CONSIDERATION OF EVIDENCE:

1.  Title 10, U.S. Code (USC), 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 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 records show he was inducted into the Army of the United States on 8 April 1969 and held military occupational specialty 11B (Light Weapons Infantryman).  He served in Vietnam from 25 October 1969 to 24 June 1970.  He was assigned to Company D, 1st Battalion, 12th Infantry, 4th Infantry Division.

3.  On 29 May 1970, he was injured in a helicopter crash in Vietnam.  He was evacuated to the 249th General Hospital on 21 June 1970 and ultimately to the U.S. Army Hospital at Fort Stewart, GA, on 27 June 1970.

4.  His narrative summary, prepared at Fort Stewart, GA, on 1 October 1970 shows he fell approximately 30 feet from a crashing helicopter evading enemy fire.  He was initially treated at the 17th Field Hospital for a concussion, then medically evacuated through Japan to Fort Stewart, GA, on 27 June 1970.  He underwent a series of x-rays, neurological tests, and a period of convalescent leave before he was returned to duty with a restrictive physical profile.

5.  He was honorably released from active duty on 18 December 1970 and he was transferred to the U.S. Army Reserve Control Group to complete his remaining service obligation.

6.  Item 24 (Decorations, Medals, Badges, Commendations, Citations, and Campaign Ribbons Awarded or Authorized) of his DD Form 214 shows the National Defense Service Medal, Vietnam Service Medal, Vietnam Campaign Medal, one overseas service bar, and the Combat Infantryman Badge.

7.  On 16 August 2010, officials at the U.S. Army Human Resources Command (HRC), Fort Knox, KY, issued the FSM a DD Form 215 (Correction to DD Form 214) further awarding him the:

* Air Medal
* Army Commendation Medal
* Army Good Conduct Medal (1st Award)
* three bronze service stars to be affixed to the Vietnam Service Medal
* Sharpshooter Marksmanship Qualification Badge with Rifle Bar
* Republic of Vietnam Gallantry Cross with Palm Unit Citation
* Republic of Vietnam Civil Actions Honor Medal First Class Unit Citation

8.  In awarding him the additional awards, HRC officials considered the request for award of the Purple Heart but determined there was insufficient evidence to show the helicopter crash – and thus his injury – was the result of enemy action.  HRC officials also considered the Silver Star, but were unable to locate any documentation to support the FSM's entitlement to this award.

9.  The FSM's records do not contain a recommendation or official orders for award of the Silver Star.  There are no official orders in his records that show he was awarded the Purple Heart.

10.  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 HRC, failed to reveal orders for the Silver Star or the Purple Heart.

11.  Item 40 (Wounds) of the FSM's DA Form 20 (Enlisted Qualification Record), which would have listed combat injuries, is blank.  Additionally, item 41 (Awards and Decorations) of this form does not list the Silver Star or the Purple Heart.

12.  The FSM's name is not shown on Vietnam casualty roster.

13.  The FSM's available medical records do not show a combat wound or injury or treatment.

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

	a.  The Silver Star is awarded for gallantry in action against the enemy.  The required gallantry (spirited and conspicuous acts of heroism and courage) must have been performed with marked distinction.  As with all personal decorations, formal recommendations, approval through the chain of command, and announcement in orders are required.

	b.  The Purple Heart is awarded for a wound sustained 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.

15.  U.S. Army Vietnam Regulation 672-1 (Decorations and Awards) stated the authority to award the Purple Heart was delegated to hospital commanders.  It directed that all personnel treated and released within 24 hours would be awarded the Purple Heart by the organization to which the individual was assigned.  Personnel requiring hospitalization in excess of 24 hours or evacuation from Vietnam would be awarded the Purple Heart directly by the hospital commander rendering treatment.

16.  Army Regulation 600-10 (The Army Casualty System), then in effect, prescribed policies and procedures for the operation of the Army Casualty System.  These policies and procedures included casualty reporting, casualty notification, and survivor assistance.  The regulation stated that when reporting a casualty, a determination as to whether the casualty was "battle," "non-battle," or "unknown" was required in the initial report.

17.  A DD Form 173 (Joint Message Form) from the Chief, Casualty Division, Washington, DC, to the Commanding General, U.S. Army Vietnam, dated 20 June 1968, provided additional guidance in the determination of hostile action casualties in addition to that provided in Army Regulation 600-10.  Paragraph 3 of the DD Form 173 stated, "The rule that has been applied in helicopter or aircraft accidents is that the cause of the accident must be directly attributable to action by the enemy rather than merely the presence of the enemy."  The message goes on to state that enemy fire on the aircraft must have caused or directly contributed to the accident.  The fact that an aircraft is on or returning from a combat mission when an accident occurs is not sufficient, alone, to classify as hostile.

18.  Title 10, U.S. Code, section 1130, provides the legal authority for consideration of proposals for decorations not previously submitted in a timely fashion.  Upon the request of a Member of Congress, the Secretary concerned shall review a proposal for the award of or upgrading of a decoration.  Based upon such review, the Secretary shall determine the merits of approving the award.

19.  The request, with a DA Form 638 (Recommendation for Award), must be submitted through a Member of Congress to:  Commander, U.S. Army Human Resources Command, ATTN:  AHRC-PDP-A, 1600 Spearhead Division Avenue, Fort Knox, KY  40122.  The unit must be clearly identified, along with the period of assignment and the recommended award.  A narrative of the actions or period for which recognition is being requested must accompany the DA Form 638.  Requests should be supported by sworn affidavits, eyewitness statements, certificates, and related documents.  Supporting evidence is best provided by commanders, leaders, and fellow Soldiers who had personal knowledge of the facts relative to the request.  The burden and costs for researching and assembling supporting documentation rest with the applicant.


DISCUSSION AND CONCLUSIONS:

1.  With respect to the Purple Heart, the Purple Heart differs from all other decorations in that an individual is not "recommended" for the decoration; rather, he or he is entitled to it upon meeting specific criteria.  The criteria for an award of the Purple Heart requires the submission of substantiating evidence to verify the injury/wound was the result of hostile action, the injury/wound must have required treatment by personnel, and the medical treatment must have been made a matter of official record.

2.  The available medical documents do not conclusively show the helicopter crash – and thus the FSM's injury – was caused by enemy action.  Guidance provided at the time distinguished between accidents classified as non-hostile or hostile.  This guidance specifically states that the fact that an aircraft is on or returning from a combat mission when an accident occurs is not sufficient, alone, to classify as hostile.  It is acknowledged that the narrative summary shows the applicant's injuries were caused when he fell approximately 30 feet from a crashing helicopter evading enemy fire.  However, there is insufficient evidence to show the helicopter was hit by enemy fire.

3.  The FSM's service record is void of any orders that show he was awarded the Purple Heart, his name is not shown on the Vietnam casualty roster, his DA Form 20 does not indicate any combat wounds, and his medical records do not conclusively reflect treatment for a combat injury or wound.

4.  Notwithstanding the evidence submitted, the preponderance of evidence from military records shows the helicopter crash in question was not the result of hostile action.  In the absence of additional documentary evidence, such as operation reports, morning reports, after action reports, or other additional documentation that conclusively shows he was wounded or injured as a result of enemy action and treated for those wounds, there is insufficient evidence upon which to base award of the Purple Heart in this case.

5.  With respect to the Silver Star, there is no evidence in the available records that shows the FSM was recommended for or awarded the Silver Star.  The governing Army regulation states that for personal decorations (which include the Silver Star) formal recommendations, approval through the chain of command, and announcement in orders are required.  In the absence of orders, there is insufficient evidence to correct his records to show the Silver Star.

6.  Nevertheless, while the available evidence is insufficient for awarding the FSM a Silver Star, this in no way affects the applicant's right to pursue his claim for the Silver Star by submitting a request through her Member of Congress under the provisions of Title 10, U.S. Code, section 1130.

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 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 the FSM in service to our Nation.  The applicant and all Americans should be justifiably proud of the FSM's 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)                                         AR20100016455



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ABCMR Record of Proceedings (cont)                                         AR20100016455



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