BOARD DATE:	  13 October 2011

		DOCKET NUMBER:  AR20110004386 


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, the sister and next of kin of a deceased former service member (FSM), requests reconsideration of the previous request for award of the Purple Heart.

2.  The applicant states the investigation reports indicate that aircraft maintenance, weather, radio failure, or pilot error as identifiable causes for crashes are non-existent.  The testimony of an eyewitness confirms the FSM's helicopter was shot down.  The applicant believes that a careful review of the recovery efforts report will support a finding that her brother was killed as a result of hostile fire.  

3.  The applicant also states the prior decisional document contains regulatory flaws and errors and points out that the crash site was not finally identified and that the remains of her brother were not identified until March 2009.  Therefore her application was properly filed within 3 years of the discovery of the error.  Further, there is no statute of limitation on award of the Purple Heart.  She also notes that the citation for the Purple Heart did not address a Soldier who was missing in action, whose remains were not recovered for an extended period, or aircraft accidents resulting from enemy fire.

4.  The applicant provides copies of a:

* background statement 
* J-2 Report: Case 0224, from the Joint Prisoner of War (POW)/Missing in Action (MIA) Accounting Command, dated 10 April 2009 and attachment
* Memorandum from the Joint POW/MIA Accounting Command, dated 
1 June 2009
* Memorandum for Record (MFR), dated a 10 January 2011
* Aviation Accident Research Findings-Subject: Transmittal of Summary Report of Missing UH-1D S/N 63-8808, dated 19 February 1966 
* Letter from the U.S. Army Human Resources Command, dated               21 January 2011
* two DA Forms 2823 (Sworn Statement)
* MFR, dated 10 January 2011
* MFR from HRC, Alexandria, dated 16 June 2009

CONSIDERATION OF EVIDENCE:

1.  Incorporated herein by reference are military records which were summarized in the previous consideration of the applicant's case by the Army Board for Correction of Military Records (ABCMR) in Docket Number AR20090016118, on 9 March 2010.

2.  The majority of the evidence provided at this time was available during the original review.  However, the 2011 sworn statements and MFRs are new evidence.  The contentions that the original case contains regulatory flaws or errors constitute new arguments.  

3.  As noted in the original decisional document, the FSM’s military service records are not available for review.  

4.  On 28 December 1965, the FSM was one of four crewmembers on a UH-1D helicopter (tail number 63-8808), which left the Golf Course Heliport (located at An Khe, Gia Lai Province, Vietnam, on a resupply mission.  The flight was to have lasted 10 to 15 minutes.  The aircraft failed to reach its destination and a search was commenced after the aircraft was reported missing. 

5.  It had been reported that the pilot contacted the An Khe operations for a weather update at the destination location.  After being briefed on the weather no further communications were made with the crew.  An intensive search and rescue effort was conducted for 4 days after the helicopter was reported overdue. However, no evidence of a crash site or any information as to the whereabouts of the missing crew could be found at that time.  

6.  In a statement, dated 28 December 1965, the maintenance officer, for another UH-1D, reported that his helicopter departed approximately two minutes after the FSM's helicopter enroute to the same location.  They encountered heavy clouds and poor visibility at 2,000 feet and had to climb to 7,500 feet to get above the clouds.  Upon approaching his destination, he descended on instruments utilizing a secondary beacon frequency making a low level pass through An Khe Pass at 0645 hours and arriving at their location at 0700 hours.

7.  On 29 December 1966, the U.S. Army declared the presumptive finding of death for the four crew members.  The Vietnam Casualty Roster carries the FSM (and the other three Soldiers) in a "died while missing" status as of 29 December 1966.  The cause of death was listed as "non-battle."

8.  In a statement, dated 3 January 1966, the Assistant Operations Officer at the Golf Course Heliport stated the FSM's helicopter departed the Golf Course Heliport at 0556 on 28 December 1965.  The weather conditions at the Golf Course Heliport were good with a broken high overcast ceiling at 10,000 feet, seven mile visibility, and a five knot wind.  Radio communications between 
UH-1D 63-8808 and the field destination location indicated the weather conditions at the destination were good with a ceiling at 2,000 feet and a light drizzle.  Conditions in the pass were unknown.

9.  A Summary Report, dated 4 January 1966, on missing UH-1D helicopter     63-8805, stated a second helicopter that departed the heliport, on basically the same course with the same destination, reported low ceilings along the route.  The area was relatively secure but the area was under hostile influence and sniper fire had been received from the area recently.  The missing aircraft’s maintenance records revealed no maintenance or material failures.  Based on the information available the following probabilities were believed pertinent: 
(1) the pilot inadvertently flew into instrument conditions at night and crashed, or (2) the aircraft had material or maintenance failure and crashed, or (3) the aircraft was hit by hostile fire resulting in material failure and a subsequent crash, or 
(4) the pilot experienced complete radio failure after becoming "IFR" and flew on instruments to let down in an area clear of high terrain and crashed on let down.  The final determination was that the cause factors were unknown; but the most probable cause factor was that the pilot had become inadvertently "IFR" at night and flew into the mountain in the vicinity of the An Khe Pass.

10.  Between 1993 and 2005, the Joint POW/MIA Accounting Command conducted several witness interviews concerning missing UH-1D 63-8808 [identified as Case 0224] and surveyed several helicopter crash sites which turned out to be resolved helicopter crash sites or were operational loss helicopters. 

11.  In an interview with Mr Vek, a former member of the Ya Hoi Village Militia, he reported that in late 1965 he shot at a U.S. helicopter and the helicopter crashed near his village of Ya Hoi in the Gia Lai Province [near the An Khe Pass].  He received a Certificate of Achievement for this action and it was the only time he shot down a helicopter. 

12.  In 2006 a Joint POW/MIA Accounting Command team was led to the helicopter crash site by Mr. Dinh Vek.  The team recovered material evidence that indicated at least one individual was in the aircraft at the time of impact.  
In March 2009 a team successfully excavated this crash site recovering limited human remains for four individuals, the FSM’s identification tag, and other crew related items.  The human remains were subsequently identified as belonging to the four UH-1D 63-8808 crewmen.

13.  The Joint POW/MIA Accounting Command J-2 Report for Case 0224, dated 10 April 2009, outlined the historical information involved in the search for the missing helicopter UH-1D 63-8808.  The report indicates that during the initial 2006 investigation a portion of aircraft skin was recovered and identified as being from a UH-1D.  The 2009 follow-up investigation located and removed dental remains that were determined to be from four Army personal, including the FSM. This information together with the FSM's dog tags confirmed that this crash site was that of the FSM's helicopter, UH-1D 63-8808.  The details of this report deal principally with the identification of the human remains.  The report does not indicate how much of the helicopter itself remained or if what remained was examined to determine the cause of the crash.  

14.  A Chief, Military Awards Branch, HRC, Memorandum, dated 16 June 2009, states the Joint POW/MIA Accounting Command’s report on the helicopter crash of 28 December 1965 failed to indicate that the crash was caused by hostile fire or action.  The Military Awards Branch contacted the U.S. Army Combat Readiness and Safety Center at Fort Rucker, AL in order to determine the status of the crash and a Freedom of Information Act office official told them that they had an accident report on file for the aircraft.  Fort Rucker only collects/retains reports on non-hostile aircraft incidents.  Therefore, the Military Awards Branch determined that without further evidence that the helicopter went down due to hostile action, they were unable to authorize award of the Purple Heart.

15.  The ABCMR reviewed and denied the prior application for award of the Purple Heart on 9 March 2010.  The primary reason for the denial was that the Joint POW/MIA Accounting Command's report did not indicate the helicopter crash was caused by hostile fire.  

16.  In separate 2011 statements, three members of the 2009 POW/MIA Accounting Command investigation team, all state they believe the information Mr. Dinh Vek provided which indicate he was responsible for shooting down the helicopter in Case 0224 (UH-1D 63-8808) to be highly creditable.
17.  Army Regulation 600-8-22 (Military Awards) prescribes Army policy, criteria, and administrative instructions concerning individual and unit military awards.  It provides the following:

	a.  the statutory time limits pertaining to award of military decorations does not apply to the Purple Heart.  The Purple Heart may be awarded at any time after submission of documented proof that criteria have been met; 

	b.  the Purple Heart is awarded to members of the U. S. Armed Forces who, while serving under component authority in any capacity with one of the U.S. Armed Services after 5 April 1917, has been wounded or killed, or who has died or may hereafter die after being wounded, in any action against an enemy of the United States or as the result of an act of any such enemy;

	c.  it is not intended that such a strict interpretation of the requirement for the wound or injury to be caused by direct result of hostile action be taken that it would preclude the award being made to deserving personnel.  Commanders must also take into consideration the circumstances surrounding an injury;

	d.  when contemplating an award of this decoration, the key issue that commanders must take into consideration is the degree to which the enemy caused the injury or death.  The fact that the proposed recipient was participating in direct or indirect combat operations is a necessary prerequisite, but is not sole justification for award; 

	e.  an example of an enemy-related injury which clearly justify award of the Purple Heart include any injury caused by a vehicle or aircraft accident resulting from enemy fire; and

	f.  an example of an injury or wound which clearly does not justify the award includes explosive aircraft, vehicular, and other accidental wounding not related to or caused by enemy action.

DISCUSSION AND CONCLUSIONS:

1.  The applicant states the investigation reports indicate that aircraft maintenance, weather, radio failure, or pilot error as identifiable causes for crashes are non-existent.  The testimony of an eyewitness confirms the FSM's helicopter was shot down.  The applicant believes that a careful review of the recovery efforts report will support a finding that her brother was killed in action as a result of hostile fire.  

2.  The applicant specifically noted errors in the utilization of the "failure to timely file" paragraph and wording of the requirements for award Purple Heart.  However, none of the regulations in question, even if omitted, more completely cited, or more clearly worded resulted in the case not receiving a just consideration as noted below: 

	a.  the "failure to timely file" paragraph utilized waived the general 3 year statute of limitations and the case was reviewed based on its merits and the available evidence.  This allowed the issue of award of the Purple Heart to be addressed regardless of when the application was submitted.  In effect, it resulted in the ABCMR complying with the no statute of limitations provision for consideration of award of the Purple Heart; and

	b.  the regulation clearly indicates in all cases, a service member must be shown to have sustained a wound as a result of hostile action. 

3.  The human remains recovered from the crash site were so limited they precluded any determination of the cause of death and the 10 April 2009 Joint POW/MIA Accounting Command J-2 Report does not address the cause of the crash.

4.  The fact that the aircraft accident report was filed at Fort Rucker is a statement of fact.  In 1966, the cause of the loss of the FSM's aircraft was unknown.  Based on the available evidence at the time, the crash was considered to have mostly likely been the result of a weather related accident; hence, the report was properly filed at Fort Rucker.  However, where this report was or is filed has minimal relevance to the current situation.  

5.  A second helicopter pilot left the same heliport as the FSM's helicopter enroute to the same destination just minutes behind the FSM's helicopter and he stated that he made the run through the pass at a low level because it was lighter and clearer than higher elevations.  This would indicate that there was a greater probability that weather was not the principle cause of the downing of the FSM's helicopter.

6.  The only evidence to document the cause of the crash is the statement from Mr. Vek that he shot down the aircraft.  His statement is supported by his military award for shooting down a helicopter in the location of and at the time the FSM's aircraft went missing.

7.  Additional statements from members of the Joint POW/MIA investigation team all state they find Mr. Vek's statements to be creditable and they accept the fact that he shot down the aircraft in question.
8.  Therefore, barring evidence to the contrary, Mr. Vek's statement that he shot down UH-1D 63-8808 (supported by his military award), and the Joint POW/MIA investigation teams statement indicating they believe Mr. Vek's statement is credible it is accepted that UH-1D 63-8808 was lost due to hostile fire and the death of the four man crew was the result of hostile action.

9.  Based on the above finding it is appropriate to correct the FSM's records to show he died as a result of hostile action and awarding him the Purple Heart.

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 amendment of the ABCMR’s decision in Docket Number AR20090016118, dated 
9 March 2010.  As a result, the Board recommends that all Department of the Army records of the individual concerned be corrected by:

* showing helicopter UH-1D 63-8808 was lost due to hostile fire
* the FSM was killed as a result of enemy action 
* awarding the FSM the Purple Heart for wounds (resulting in his death) on 
28 December 1965




      _______ _  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)                                         AR20110004386



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ABCMR Record of Proceedings (cont)                                         AR20110004386



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