IN THE CASE OF:	  

		BOARD DATE:  17 April 2012

		DOCKET NUMBER:  AR20110019638 


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.  The applicant states he was a crewmember onboard a UH-1B Huey Gunship (helicopter) that was shot down by hostile enemy fire in October 1966.  He received injuries when the helicopter crashed and he believes this entitles him to award of the Purple Heart.  He further states he was the only aircraft crewmember to be treated and returned to duty.  All of the other crewmembers were medically evacuated to the hospital where treatment records were maintained.

3.  The applicant provides:

* 2 Department of Veterans Affairs (VA) Forms 21-4138 (Statement in Support of Claims), dated 12 August 2008 and 22 August 2011
* VA Form 21-4142 (Authorization and Consent to Release Information to the VA), dated 24 September 2011
* DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge)
* U.S. Army Vietnam (USARV) Form 232 (Technical Report - U.S. Army Aircraft Accident), dated 24 October 1966
* Medical Evaluation
* Transmittal letter, dated 29 October 1966
* 4 endorsement letters


* Flight record
* Air Medal certificate, dated 7 October 1967
* Air Medal citation
* General Orders Number 6117, dated 7 October 1967

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 was inducted into the Army of the United States on 4 March 1966.  He completed training and he was awarded military occupational specialty 67N (Utility Helicopter Mechanic).

3.  His record shows he served in Vietnam with Company D, 227th Aviation Battalion, 1st Cavalry Division (Airmobile) from 20 September 1966 to 
26 September 1967.

4.  Item 40 (Wounds) of his DA Form 20 (Enlisted Qualification Record) does not show a combat wound or injury.

5.  His records do not contain general orders awarding him the Purple Heart.

6.  He was honorably released from active duty on 1 March 1968 in the rank/
grade of specialist five (SP5)/E-5.  He completed 1 year, 11 months, and 28 days of total active service.  His DD Form 214 shows award of the:

* Sharpshooter Marksmanship Qualification Badge with Rifle Bar (M-14)
* Aircraft Crewmember Badge
* Army Commendation Medal
* Air Medal
* Vietnam Service Medal 


* Republic of Vietnam Campaign Medal with Device (1960)
* 2 overseas service bars
* National Defense Service Medal

7.  The applicant provided a USARV Form 232, dated 24 October 1966.  This form shows:

	a.  on 24 October 1966, he was one of four crewmembers on a combat assault mission.  The UH-1B helicopter he was on crashed and it was classified as a combat loss.  This form shows the gunner received an injury to the lower back as a result of a far-flung missile.  The USARV Form 232 further shows a medical evaluation was attached;

	b.  the medical evaluation, which was stamped "For Official Use Only," lists each crewmember by name, including the applicant, and identifies the wounds each received as a result of the helicopter crash.  The medical evaluation identifies the applicant as the gunner and shows he received a superficial laceration, 1 centimeter long, over the coccyx (tail bone); and

	c.  the cause factors of the helicopter crashing was pilot error, supervisory error, poor crew coordination, and preoccupation on the part of the new gunner who probably did not hear the command to cease fire.

8.  The applicant provided four endorsement letters ranging in date from 
3 November 1966 to 9 January 1967.  In the:

	a.  first endorsement, dated 3 November 1966, the battalion commander concurred with the findings and recommendations made by the investigating officer;

	b.  second endorsement, dated 3 November 1966, the 11th Aviation 
Group commander stated he concurred with the recommendations made by the investigating officer.  Based on this concurrence, the crash was reclassified as a major accident because the circumstances did not substantiate the classification of a combat loss; and 

	c.  third endorsement, dated 19 November 1966, the 1st Cavalry Division, Assistant Division Commander; concurred with the findings and recommendations made by the investigating officer, as amended by the Battalion and Group commanders.  He further stated the Battalion and Group Commanders have correctly evaluated the supervisory error involved in not adequately training the gunner who was on his first mission.


9.  The applicant's name is not listed on the Vietnam casualty listing.

10.  Review of the Awards and Decorations Computer Assisted Retrieval System maintained by the U.S. Army Human Resources Command, which is an index of general orders issued during the Vietnam era between 1965 and 1973, failed to reveal any orders for the Purple Heart pertaining to the applicant.

11.  Army Regulation 600-8-22 (Military Awards) provides 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 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.

12.  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.

13.  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.

DISCUSSION AND CONCLUSIONS:

1.  The available evidence shows he sustained injuries when the helicopter he was a crewmember on crashed.  Although this incident occurred while on a combat mission in the Republic of Vietnam, the investigating officer concluded it was clearly the result of multiple pilot/supervisory/crewmember errors.

2.  The basis of a determination of hostile or non-hostile classification in helicopter and aircraft accidents is that the cause of the accident must be directly attributable to action by the enemy rather than by the mere presence of the enemy.  Enemy fire on the aircraft must have caused or directly contributed to the accident.

3.  In this case, the aircraft crash was an accident and not the result of enemy action.  Non-hostile injuries or death incurred in a combat zone do not entitle an individual to an award of the Purple Heart.

4.  Although it is clear that he received medical treatment for the injuries he received, accidental injuries not related to or caused by enemy action do not meet the eligibility criteria for award of the Purple Heart.

5.  In view of the foregoing, there is no basis for granting the applicant's request.

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)                                         AR20110019638



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ABCMR Record of Proceedings (cont)                                         AR20110019638



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