IN THE CASE OF:	  

		BOARD DATE:	    26 April 2012

		DOCKET NUMBER:  AR20110022001 


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 (PH).

2.  The applicant states that in 1971 while serving as a helicopter pilot, he was injured in a crash while responding to an enemy contact situation.  He further states that he never received the PH.

3.  The applicant provides the following:

* DD Form 214 (Report of Separation from Active Duty)
* 2 letters of support
* DA Form 759 (Individual Flight Record and Flight Certificate)
* 4 pages of medical records
* 2 pages of Clinical Records Cover Worksheet
* DA Form 3647 (Clinical Record Cover Sheet)

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 appointed and commissioned as a second lieutenant in the Regular Army on 5 June 1968.   He served in a variety of assignments and he was promoted to captain on 5 June 1970.

3.  The applicant’s DA Form 66 (Officer Qualification Record) shows he served in the Republic of Vietnam (RVN) from 28 December 1970 to 11 December 1972.  Item 18 (Record of Assignments) shows during his RVN tour he was assigned to Headquarters and Headquarters Company, 101st Aviation Group, 101st Airborne Division (Airmobile) and to Company C, 158th Aviation Battalion, 101st Airborne Division (Airmobile). 

4.  On 29 July 1977, the applicant was honorably released from active duty after completing 9 years, 1 month, and 25 days of total active service.  His DD Form 214 shows the following awards:

* Silver Star
* Bronze Star Medal
* Air Medal w/Numerals 18
* Army of Occupation Medal (Berlin)
* National Defense Service Medal
* Army Aviator Badge
* Vietnam Service Medal with 3 bronze service stars
* Parachutist Badge
* RVN Campaign Medal
* Republic of Vietnam Gallantry Cross of Gallantry with Palm Unit Citation
* Ranger Tab
* Expert Infantryman Badge

5.  Item 21 (Awards and Decorations) of his DA Form 66 does not list award of the Purple Heart.  

6.  Review of The Adjutant General's Office, Casualty Division's Vietnam casualty listing fails to show the applicant's name as a casualty.  Review of the Awards and Decorations Computer-Assisted Retrieval System (ADCARS), 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 PH pertaining to the applicant.

7.  The applicant provided a statement in which he states on the night of 25 January 1971, he was the copilot on the Nighthawk, a UH-1H helicopter which was configured with a .30 caliber mini-gun, searchlight and flares.  The applicant states around 11:30 pm, they received a request for assistance from a sniper team that reported enemy movement in their vicinity.  The applicant states the weather was terrible that night with less than two miles of visibility, very low ceilings, heavy rain, and thunderstorms.  The applicant states as they were nearing the location of the sniper team, they encountered severe turbulence and as it increased, they lost control and crashed.  The applicant further states he suffered a severe back strain and a puncture wound to the lower right leg and had remained in the 85th Evacuation Hospital for a few days while the leg wound was being treated.

8.  The applicant submitted a copy of a DA Form 759 for the period covered December 1970 through January 1971.  Item 24 (Remarks) of his DA Form 759 shows "Combat time recorded IAW AR 95-1 and DA MSG 71664, Dated May 65. Records closed:  Major accident, 25 Jan."

9.  The applicant submitted copies of Standard Forms 539 (Clinical Record) which show he was treated for a puncture wound sustained on his lower right leg from a helicopter crash on 25 January 1971.  The applicant also submitted a copy of a Standard Form 502 (Narrative Summary) which indicated he sustained an injury to his back and a puncture wound on his lower right leg.  These records contain no facts or circumstances surrounding how the applicant received the puncture wound and gave no indication it was received as a result of enemy action.  

10.  The applicant provides two third-party statements from fellow Soldiers.   One is from a retired Colonel stating he was the applicant’s Battalion Flight Operations Officer for the 158th Aviation Battalion, 101st Airborne Division (Airmobile) during the period November 1970 to August 1971.  He states one of their missions was NIGHTHAWK, which was packaged with high intensity lights and a mini-gun for illuminating and engaging.  He further states on 25 January 1971, the NIGHTHAWK was launched to assist a sniper team in the vicinity of one of their firebases and during the attempt it encountered severe weather and turbulence causing the NIGHTHAWK to crash.  He also indicates the applicant was one of the pilots on the aircraft when it crashed. 


11.  The second letter is from a retired Specialist Five indicating he was part of a 4-man crew flying the "Nighthawk" mission along with the applicant.  The Soldier states the evening of 25 January 1971, the weather conditions were bad for flying; low cloud scud and severe turbulence as they approached the ridgeline of the mountains where the sniper team was located.  He states they encountered powerful updrafts which caused the aircraft to overstress and it eventually lost total control when it entered into a spin.  The Soldier further states from the result of the crash, he suffered a fractured ulna which required surgery and he received the Purple Heart for this injury. 

12.  Army Regulation 600-8-22 (Military Awards) states 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.

DISCUSSION AND CONCLUSIONS:

1.   The applicant’s request to be awarded the PH has been carefully considered. However, there is insufficient evidence to support this claim.  

2.  By regulation, in order to support award of the PH there must be evidence that the wound for which the award is being made was received as a direct result of or caused by enemy action.  In this case, although it is clear the applicant was treated for an injury on 25 January 1971 when the helicopter crashed, while serving in the RVN, there is no evidence of record confirming this injury was received as a result of direct enemy action.  Item 21 of his DA Form 66 does not include the PH in the list of awards.  All three of the statements provided indicate the crash was the result of bad weather.

3.  Further, the applicant’s name is not listed on the Vietnam Casualty Roster and there are no orders or other documents indicating he was ever recommended for or awarded the PH by proper authority while serving in the RVN.  As a result, absent evidence the injury received by the applicant was the result of enemy action, the regulatory burden of proof necessary to support award of the PH has not been satisfied in this case.  

4.  The applicant and all others concerned should know this action in no way diminishes the sacrifices made by the applicant in service to our Nation.  The applicant and all Americans should be justifiably proud of his service in arms.  


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)                                         AR20110022001





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ABCMR Record of Proceedings (cont)                                         AR20110022001



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