IN THE CASE OF:	  

		BOARD DATE:	  10 January 2013

		DOCKET NUMBER:  AR20120006831 


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 while serving as the pilot of a UH-1C Gunship with the 192nd Attack Helicopter Company in Pahn Rang, Vietnam, he was shot down and injured.  His company commander awarded him the Purple Heart at Qui Nhon, and his crew chief and door gunner were killed.  He further states the aircraft commander and he were severely injured and medically evacuated to the 67th Evacuation Hospital at Pleiku and to the 61st Medical Battalion in Qui Nhon. He concludes that he was later transferred to Okinawa and Walter Reed Army Medical Center for more surgery and ultimately to Martin Army Hospital, Fort Benning, GA for additional surgery and recuperation.

3.  The applicant provides:

* DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge) dated 16 October 1971
* DD Form 214 (Certificate of Release or Discharge from Active Duty) dated 30 September 1980
* Honorable Discharge Certificate
* Self-authored memoir of the events that led to the crash of the helicopter
* Statement from the former company commander
* Statement from another helicopter pilot, chief warrant officer two (CW2) JEB, present at the scene, and his DD Form 214
* Reassignment orders of the individual who rescued the applicant from the wreckage
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.  Having had prior enlisted service, the applicant's records show he was appointed as a Reserve commissioned officer and entered active duty on 19 May 1969.  He completed the U.S. Army Primary Helicopter School, U.S. Army Aviation School, and the Officer Rotary Wing Aircraft Course.  He served as an Army aviator and he attained the rank of captain.  

3.  Item 17 (Foreign Service) of the applicant's DA Form 66 (Officer Qualification Record) shows he served in Vietnam from 8 August 1970 to 26 June 1971.  He was assigned to the:

* 155th Aviation Company from 14 August 1970 to 14 January 1971
* 192nd Aviation Company from 15 January 1971 to 15 June 1971

4.  Item 18 (Record of Assignments) of his DA Form 66 shows he was transferred in a patient status on 15 June 1971 to the U.S. Army Hospital, Japan, and on 26 June 1971 to Martin Army Hospital, Fort Benning, GA.

5.  The applicant underwent a separation physical at Fort Benning, GA, on 16 February 1972.  His Standard Form (SF) 88 (Report of Medical Examination) noted that he had an old compression fracture and an orthopedic consultation.  Item 73 (Notes and Significant or Interval History) of his SF 88 lists the following:

* Helicopter crash, Vietnam, 10 June 1971
* Fracture L-2 vertebrate
* Fracture lower mandible
* Missing teeth
* Broken rib
* Facial laceration

6.  Attached to the applicant's SF 88 is an SF 513 (Clinical Record - Consultation Sheet).  An orthopedic consultation noted "applicant suffered compression fracture of the L-2 in Vietnam on 10 June 1971."  "He was treated with bed rest and bracing and now he still has back pain especially when sitting in a chair and bending."  

7.  The applicant was honorably released from active duty on 29 February 1972.  His DD Form 214 shows he was awarded or authorized the:

* National Defense Service Medal
* Vietnam Service Medal
* Vietnam Campaign Medal with "1960" Device
* Air Medal
* Good Conduct Medal
* Army Aviator Badge
* One overseas service bar

8.  His records do not contain general orders which authorized him award of the Purple Heart.

9.  Item 21 (Awards and Decorations) of the applicant's DA Form 66 listed the same awards shown on his DD Form 214 together with the authority for the award.  It also listed a handwritten entry as "Purple Heart" but with no authority. 

10.  The applicant's name is not shown on the Vietnam casualty roster.  Additionally, a 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 Purple Heart for him.

11.  The applicant submitted:

	a.  Special Orders Number 244, issued by Headquarters, 10th Combat Aviation Battalion, ordering the reassignment of specialist five LS.  An entry is hand-written on the orders and says "This is the individual that climbed down the tree and pulled me out of the wreckage saving my life." 

	b.  A DD Form 214, dated 30 September 1980, listing the name of retired lieutenant colonel (LTC) ARG, a general aviation officer.

	c.  A statement, dated 17 January 2012 from LTC ARG.  He states he was a major, the company commander of the 192nd Aviation Company.  He describes the operation mission of the company and the area of operation in Vietnam.  He adds that:

		(1)  When he heard the applicant's aircraft was shot down and had casualties, he scrambled two aircrafts to the crash site.  Upon arrival, he found two survivors had been evacuated to Pleiku.  It was not practical to retrieve the burned out aircraft in the jungle.  They devoted the rest of the day repairing another helicopter due to maintenance problems.  

		(2)  The following day, he received a full account of the event that occurred the previous day.  After a few days, he flew out to meet with the applicant at Qui Nhon.  He was briefed by doctors of the extent of the injuries.  At the end of the visit, he (the former company commander) presented the applicant with the Purple Heart by placing it on the pillow.  

		(3)  He did not know until recently that the paperwork was not done.  The applicant was transferred to Okinawa that evening and he (the author) had not heard from him until recently regarding problems with the DD Form 214.  He concludes that every action should be taken to indicate the applicant's injuries were a direct cause of combat action. 

	d.   Self-authored memoir by the applicant chronicling his military service, Vietnam tour, and assignment to the 192nd Aviation Company.  He also describes the events that occurred on 10 June 1971 that led to two Soldiers killed in action, SP5 JA (the crew chief) and specialist four (SP4) LGM (the gunner) and two Soldiers wounded, himself and the aircraft commander, warrant officer SAW.  On that date, his and another helicopter escorted two other aircraft as they attempted to pick up Vietnamese rangers.  He was flying the lead gunship.  

		(1)  As the two utility helicopters approached the ground to land, they came under fire from automatic weapons.  After making a couple of passes over the pick-up zone, his aircraft was hit in the engine and transmission causing the aircraft to free fall.  The helicopter exploded in the air when they were hit and began to burn.  It then exploded a second time when it hit the ground.  The crew chief and gunner were killed.  The copilot was critically injured.  He suffered facial lacerations, a crushed second lumbar vertebrate, dislocated shoulder and knee, separated ribs, fractured cheek bones, and a severed lower jaw on both sides.  

		(2)  He was medically evacuated to Pleiku and Qui Nhon where he underwent surgery.  After several days, he was sent to Okinawa where he underwent a second operation.  He was then transferred to Walter Reed Army Medical Center and ultimately to Fort Benning, GA.  He endured mistreatment and an unfriendly homecoming from Vietnam.
		(3)  Although he was given the Purple Heart medal by his company commander when he was in the hospital, no one followed up with the paperwork. Since it is not on his DD Form 214, according to the Army, it does not exist.

	e.  A statement, dated 12 February 2012, from chief warrant officer two EJB, aircraft commander, first platoon, 192nd Aviation Company.  He states he was part of the four helicopters to extract the Vietnamese rangers on 10 June 1971.  

		(1)  After the first team extraction went smoothly, he spotted the two gunship teams on a return trip and radioed that he had them in sight.  Minutes later, a large deep orange ball engulfed the applicant's aircraft, Tail Number 597, followed by a distress call from the applicant.  The aircraft crashed into the jungle followed by a large pillar of black smoke shaped as a mushroom.

		(2)  He accelerated toward the crash site and hovered over it.  He was sure the downed aircraft had been hit by an enemy shoulder-fired B-40 rocket grenade and the amount of destruction reaffirmed that belief.  A SP4 climbed out of the aircraft down a tree to the crash site in an effort to save the survivors as ammunition from the downed aircraft exploded.  A cavalry unit ultimately responded and assisted with the evacuation efforts

		(3)  He believes this was no doubt a combat operation and injuries received by the injured Soldiers should qualify them for the Purple Heart.  He concludes that at the time, he recommended the SP4 who climbed down the tree to reach the crash site for award of the Bronze Star Medal with "V" Device.  A captain, the mission commander, recommended the Silver Star and he (the author) endorsed it.  He also recommended the Air Medal with "V" Device to his crew chief.  But, none received their medals. 

12.  Army Regulation 600-8-22 (Military Awards) provides, in pertinent part, 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.

	a.  Enemy-related injuries which justify the award of the Purple Heart include injury caused by enemy bullet, shrapnel, projectile created by enemy action; injury caused by enemy placed land mine, naval mine, or trap; injury caused by enemy released chemical, biological, or nuclear agent; injury caused by vehicle or aircraft accident resulting from enemy fire; concussion injuries caused as a result of enemy generated explosions.
	b.  Injuries or wounds which do not justify for award of the Purple Heart include frostbite or trench foot injuries; heat stroke; food poisoning not caused by enemy agents; chemical, biological, or nuclear agents not released by the enemy; battle fatigue; disease not directly caused by enemy agents; accidents, to include explosive, aircraft, vehicular, and other accidental wounding not related to or caused by enemy action; self-inflicted wounds (e.g., a Soldier accidentally fires their own gun and the bullet strikes his or her leg), except when in the heat of battle, and not involving gross negligence; post-traumatic stress disorders; and jump injuries not caused by enemy action.

13.  A DD Form 173 (Joint Message Form) dated 20 June 1968 from the Chief, Casualty Division, Washington DC to the commanding general of U.S. Army Vietnam provided additional guidance in the determination of hostile action casualties in addition to that provided in Army Regulation 600-10 (The Army Casualty System).  Paragraph 3 of this 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, standing alone, to classify as hostile, casualties resulting from such accident

DISCUSSION AND CONCLUSIONS:

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

2. The evidence of record shows the applicant was involved in a helicopter crash on 10 June 1971 in Vietnam.  He suffered severe injuries that required multiple surgeries in Vietnam, Japan, and back in the United States.  The investigation report that would have confirmed the cause of the crash is not available for review with this case.  He supports his contention with three statements; however, none of the statements conclusively show the helicopter crash resulted from enemy action

	a.  In his statement, the former company commander does not state he witnessed the cause of the crash or what caused it.  He states he flew to the crash site after it happened and he visited the applicant a few days after he had been moved to Qui Nhon and placed the Purple Heart on his pillow.  He does not explain why the orders were not published by the unit or by the hospital commander. 

	b.  In his statement, warrant officer SAW, the officer flying the lead gunship, also does not state he witnessed the cause of the crash, but based on his experience, he believed the cause was that of an enemy shoulder-fired B-40 rocket grenade and the amount of destruction reaffirmed his belief.  

	c.  In his own statement, the applicant believed small arms fire caused the crash. 

3.  The Purple Heart differs from all other decorations in that an individual is not "recommended" for the decoration; rather an individual is entitled to it upon meeting specific criteria.  When contemplating an award of this decoration, the key issue that must be taken into consideration is the degree to which the enemy caused the injury.  The fact that a proposed recipient was participating in direct or indirect combat operations is a necessary prerequisite, but it is not the sole justification for the Purple Heart.

4.  The criteria for an award of the Purple Heart requires the submission of substantiating evidence to verify that the injury/wound was the result of hostile action, the injury/wound must have required treatment by medical personnel, and the medical treatment must have been made a matter of official record.

5.  The applicant's records do not contain official orders awarding him the Purple Heart, his name is not on the Vietnam casualty roster, and his medical records do not confirm he sustained an injury or wound that was caused by the enemy.  

6.  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, standing alone, to classify as hostile, casualties resulting from such accident.  

7.  Notwithstanding his sincerity, in the absence of official documentary evidence such as operation orders, morning reports, after action reports, official orders to corroborate the events that led to helicopter crash on 10 June 1970 or additional documentation that conclusively shows the cause of the helicopter crash, there is insufficient evidence upon which to award him the Purple Heart in this case.

8.  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)                                         AR20120006831





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ABCMR Record of Proceedings (cont)                                         AR20120006831



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