IN THE CASE OF:	  

		BOARD DATE:	  29 March 2012

		DOCKET NUMBER:  AR20110018355 


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 reconsideration of his earlier request for award of the Purple Heart.  He also requests award of the Senior Aircraft Crew Member Badge (now known as the Senior Aviation Badge).

2.  The applicant states:

* he inaccurately assumed the Board would obtain medical records and other records it needed to complete a thorough review of his application and it did not
* the evidence (his medical records) individually and collectively serve to raise a reasonable possibility of a favorable result of his claim
* material evidence means evidence which, when considered with previous evidence or lack of evidence (lost or destroyed records) that should have been recorded at the time of the incident, relates to an unestablished fact necessary to substantiate his claim
* in determining whether evidence is material or lack of evidence is material, the Board must look at the bases for the denial of its prior decision
* he should have been notified if it was his responsibility to obtain medical records or lost-asset combat-destroyed records of his unit in Vietnam
* then the Board should have described the evidence necessary to substantiate the element or elements required to establish a successful review of his records that were found insufficient in the previous denial decision
* the reasons given are insufficient for him to understand the precise reason for the disposition of his claim
* he believes that all available records in his claim were not adequately researched and the Board does not have the discretion to ignore substantive obligations owed to an applicant
* his statements of events and probable likelihood of what occurred that day need not be supported by contemporaneous corroborative recorded proof
* the Board is obligated to weigh and consider all evidence, lack of evidence, and reasonable competent assumptions should be made as to what must have happened if there is no official record
* every reasonable doubt should be given in favor of the applicant and this obviously includes considering the preponderance of evidence in records that do exist as well as why other records do not exist – some level of expertise would be needed to determine his claim
* the absence of documentation should not be used against a combat veteran

* the Board never consulted a repository where records are kept listing lost or destroyed assets of Troop A, 7th Squadron, 1st Air Calvary, to establish for a fact that aircraft 60-16743 was destroyed during the period August through October 1969
*	he believes it is the obligation of the Board to obtain those records and his medical records
* the Board did not discount the evidence – it never obtained any evidence for its evaluation

*	his medical records which show he was treated for wounds in Vietnam are on file with the Department of Veterans Affairs in Waco, TX

*	he is 80-percent disabled as a result of the crash and 100-percent disabled as confirmed by the Social Security Administration

* the crash occurred at the base of Three Sisters Mountain in South Vietnam
* they were extracting South Vietnamese Army troops from a hot landing zone to reinsert them in another location

* he reasonably concludes that one of the helicopters in the formation came under enemy fire causing the flight crew to take evasive action
* the helicopters' rotor blades overlapped causing a severe out-of-balance condition
* the pilots could not control the aircrafts causing them to hit the ground at tremendous vertical speed
* 10 South Vietnamese Soldiers died in the crash and he was severely injured

* 10 fatalities – 10 people dead – one Soldier severely injured – one aircraft completely destroyed – no competent commander can overlook that type of destruction or hide it or cover it up

* logic tells him that proper papers were written about the incident
* now there is no official record – logic says they must have been destroyed
* medical records in existence today tell a story of something happening on that day as well as other types of records

* there is no award listed for the basic Aircraft Crew Member Badge (now known as the Basic Aviation Badge)
* he maintained his flight status and flew on a regular basis for most of his 8 years and 10 months of service
* he should have been awarded the Senior Aircraft Crew Member Badge

3.  The applicant provides:

* self-authored statements
* four photographs

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 AR20100011796 on 12 October 2010.

2.  The applicant submits four photographs which were not previously reviewed by the ABCMR.  Therefore, they are considered new evidence and as such warrant consideration by the Board.

3.  The applicant's records show he enlisted in the Regular Army on 13 November 1967 for a period of 3 years.  Upon completion of basic combat and advanced individual training, he was awarded military occupational specialty 67A (Aircraft Maintenance Crewman).  The applicant was honorably released from active duty on 3 October 1973 and transferred to the U.S. Army Reserve Control Group (Standby).  After a break in service, the applicant again enlisted in the Regular Army on 29 April 1974 and was honorably discharged on 28 April 1977.  He completed a total of 8 years, 10 months, and 21 days of active service and 1 month and 9 days of prior inactive service.

4.  The applicant's DA Form 20 (Enlisted Qualification Record) shows he was assigned to Troop A, 7th Squadron, 1st Air Calvary, while serving in Vietnam during the period 3 November 1968 through 27 October 1969.

5.  Neither of the applicant's two DD Forms 214 show award of the Purple Heart or Senior Aircraft Crew Member Badge.

6.  His DA Form 20 does not show award of the Purple Heart or Senior Aircraft Crew Member Badge.

7.  The applicant's name does not appear on the Vietnam casualty roster and item 40 (Wounds) of his DA Form 20 is void of any entries.

8.  The applicant's medical records are not available for review and he does not provide them.

9.  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 the U.S. Army Human Resources Command, failed to reveal any orders for the Purple Heart or Senior Aircraft Crew Member Badge pertaining to the applicant.

10.  The applicant provides photographs of what appears to be burning debris and Soldiers inspecting the debris.  The applicant identified the photographs as the impact and the next day of Aircraft 743 on Three Sisters Mountain, South Vietnam, 26 August 1969.

11.  Item 6 (Instructions) of the DD Form 149 (Application for Correction of Military Records under the Provisions of Title 10, U.S. Code, Section 1552) clearly states, "All evidence not already included in your record must be submitted by you.  The responsibility of securing evidence rests with you."

12.  Army Regulation 600-8-22 (Military Awards) states the Purple Heart is awarded for a wound sustained as a result of hostile action.  Substantiating evidence must be provided to verify 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.

13.  The aviation badge was originally approved as the Aircraft Crew Member Badge by the Deputy Chief of Staff for Military Operations on 16 May 1962.  The Deputy Chief of Staff approved the change to the present aviation badges on 29 February 2000 for military personnel retroactive to 1 January 1947.

14.  Army Regulation 672-5-1 (Military Awards), in effect at the time, provided for award of the Aircraft Crew Member Badge.  Temporary and permanent award is as follows:

	a.  Commanders of any unit with Army aircraft assigned could publish orders allowing qualified members of that command to wear the Aircraft Crew Member Badge.  To be eligible for temporary award of the Aircraft Crew Member Badge an individual had to be on flying status in the case of crew chiefs, electronic sensor system operators, and flight engineers or as a non-crewmember in the case of observers, medical aidmen, gunners, aircraft maintenance supervisors, or technical inspectors.  Individuals were also required to be qualified based on a class III physical examination and to hold a principal duty assignment as a crew chief, flight engineer, aircraft maintenance supervisor, observer, gunner, or technical inspector.  These personnel were authorized to wear the badge temporarily until relieved from those duties or could be authorized permanent wear of the Aircraft Crew Member Badge once they fulfilled the regulatory requirements for permanent award of the badge.

	b.  For permanent award of the Aircraft Crew Member Badge, an individual must have performed in one of the duties specified above for not less than 12 months (not necessarily consecutive) or must have been school trained for a principal duty specified above.  Personnel who were precluded by incapacitation from further flight duty due to wounds sustained as a result of hostile action or injuries resulting from an aircraft accident for which they were not personally responsible were entitled to permanent wear of the Aircraft Crew Member Badge.  Further, an individual who participated in at least 15 combat missions under probable exposure to enemy fire while serving in the principal duty of crew chief, flight engineer, aircraft maintenance supervisor, observer, gunner, or technical inspector was entitled to permanent award of the Aircraft Crew Member Badge.

15.  Army Regulation 672-5-1 also provided for award of the Senior Aircraft Crew Member Badge.  It stated award of the Senior Aircraft Crewman Badge required an individual to be on flying status as a crewmember in the case of crew chiefs, airborne electronic sensory system operators and supervisors, and flight engineers or as a non-crewmember in the case of observers, medical aidmen, gunners, aircraft maintenance supervisors, or technical inspectors, physically qualified with a class III physical examination, and:

	a.  performed 7 years (not necessarily consecutive) successfully in one or more of the principal duty assignments listed above.  Only time involving frequent and regular flights will be counted toward fulfillment of this requirement, except that time involved in transit between permanent changes of station assignments will also be credited; and

	b.  displayed complete competence in the principal duty or duties performed leading to this award, attained the grade of E-4 or higher, and be recommended by the unit commander of the unit to which assigned.

16.  Army Regulation 15-185 (ABCMR) states ABCMR members will review all applications that are properly before them to determine the existence of an error or injustice; direct or recommend changes in military records to correct the error or injustice, if persuaded that material error or injustice exists and that sufficient evidence exists on the record; recommend a hearing when appropriate in the interest of justice; or deny applications when the alleged error or injustice is not adequately supported by the evidence and when a hearing is not deemed proper. The ABCMR will decide cases on the evidence of record.  It is not an investigative body.

DISCUSSION AND CONCLUSIONS:

1.  The applicant's request for reconsideration for award of the Purple Heart and award of the Senior Aircraft Crew Member Badge (now known as the Senior Aviation Badge) was carefully considered and determined to have partial merit.

2.  Although the applicant had combined periods of service totaling more than 8 years, records show he was trained as an aircraft maintenance crewman and served as a crew chief for more than 12 months but less than 7 years.  Therefore, he meets the criteria for award of the Basic Aviation Badge and is entitled to correction of his records to show this award.

3.  In order to substantiate a claim for award of the Purple Heart, documentary evidence must be provided to verify the wound was the result of hostile action, the wound must have required medical treatment, and the medical treatment must have been made a matter of official record.

4.  His sincerity, recollection of what occurred in August 1969, and photographs are noted.  However, they are not supported by sufficient evidence that conclusively confirms he was wounded by enemy action and that he received medical treatment.

5.  The ABCMR decides cases on the evidence of record.  It is not an investigative body.  The burden of proof rests with the applicant.  Therefore, in the absence of official documentary evidence, the applicant still has not met the burden of proof necessary to support award of the Purple Heart in this case.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

____x___  ____x___  ____x___  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

1.  The Board determined the evidence presented is insufficient to warrant amendment of the ABCMR's decision in Docket Number AR20110011796, dated 12 October 2010, pertaining to award of the Purple Heart.

2.  The Board further determined the evidence presented is sufficient to warrant a recommendation for partial relief.  With regard to award of an aviation badge, the Board recommends that all Department of the Army records of the individual concerned be corrected by awarding him the Basic Aviation Badge and adding it to item 26 of his DD Form 214 for the period ending 28 April 1977.

3.  However, the Board further determined the evidence presented in support of the Senior Aviation Badge is insufficient to warrant the requested relief.  As a result, the Board recommends denial of so much of the application that pertains to award of the Senior Aviation Badge.



      ____________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)                                         AR20110018355



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ABCMR Record of Proceedings (cont)                                         AR20110018355



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