IN THE CASE OF:	  

		BOARD DATE:	  12 February 2014

		DOCKET NUMBER:  AR20130008969 


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, in effect, that the records of his deceased next of kin, a former service member (FSM), be corrected to show the FSM was killed by hostile action and not by misadventure/friendly fire.

2.  The applicant states the FSM's surviving platoon leader in Vietnam at the time of the FSM's death provides evidence that the FSM was killed in combat by the enemy. 

3.  The applicant provides his own birth certificate and the following:

* FSM's platoon leader's statement
* FSM's platoon leader's DA Form 67-6 (Officer Efficiency Report (OER))
* AGPZ Form 80 (Report of Casualty)
* DA Form 10-249 (Certificate of Death (Overseas))
* DA Form 2496 (but this document was not attached)
* DD Form 893 (Record of Identification Processing)

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.  On 29 June 1967, he was inducted into the Army of the United States.  He was awarded military occupational specialty 11B (Light Weapons Infantryman).  The highest rank/grade he held was sergeant/E-5.

3.  On 27 June 1969, he was honorably released from active duty.  He completed 1 year, 11 months, and 29 days of creditable active service during this period.  

4.  On 8 September 1969, he enlisted in the Regular Army for 3 years.

5.  His record contains:

	a.  A DA Form 20 (Enlisted Qualification Record) showing he performed duties as an infantryman team leader during his tour of duty in the Republic of Vietnam (RVN) while he was assigned to Headquarters and Headquarters Company, 2d Battalion (Air Mobile), 502nd Infantry, from 29 September 1969 until his death on 26 October 1969.

	b.  A Western Union Telegram, dated 27 October 1969, stating the FSM was killed in action in Vietnam on 26 October 1969.  It states he was on a combat operation when mistaken for a hostile force and fired upon by a friendly force.

	c.  A message, dated 27 October 1969, stated he received a gunshot wound to the neck while on a combat operation when he was mistaken for a hostile force by a friendly force and engaged in a firefight.

	d.  An AGPZ Form 80 (Report of Casualty) states the FSM was killed in action in Vietnam on 26 October 1969.  It states he was on a combat operation when mistaken for a hostile force and fired upon by a friendly force. 

	e.  A DD Form 1300 (Report of Casualty), dated 4 November 1969, shows the FSM commenced his tour in Vietnam on 18 September 1969.  This form shows he was killed in action in Vietnam on 26 October 1969.

6.  The FSM’s name is listed on the Vietnam Casualty Roster.  The entry shows he was killed outright by hostile action on 26 October 1969.


7.  The applicant provides:

   a.  A copy of the FSM's platoon leader's DA Form 67-6 covering the rating period 6 July 1969 through 14 November 1969.  This OER shows the platoon leader was a second lieutenant assigned to Company A, 2d Battalion (Air Mobile), 502nd Infantry, 1st Brigade, 101st Airborne Division, performing duties as a platoon leader in an airmobile rifle company, involved in counterinsurgency operations in the RVN.
   
   b.  A statement from the FSM's platoon leader in Vietnam at the time of his death addressed to an elected official (senator), dated 23 May 2013.
   
      (1) He stated there had been a terrible mistake made in the cause of death of a Vietnam War Soldier, the FSM.  The FSM died on 26 October 1969 in Thua Thien Province, RVN.  He died while he was a member of Company A, 2d Battalion, 502nd Infantry, 1st Brigade, 101st Airborne Division.  The casualty death notification states his death was the result of misadventure (friendly fire).  That was absolutely false.  The actual cause of death was killed in action in a combat operation when a hostile force was encountered.  He was the FSM's commanding officer at the time and the only one besides the four surviving squad members who know the real facts of the engagement.  As a platoon leader in an airmobile rifle company involved in counterinsurgency operations in the RVN he is now well aware of the lack of written reports from platoon-size units in their type of operations.  This lack of written reports and the general chaos of battle could lead to this type of reporting error.  It was only through checking to see if the proper awards and decorations for this action were given that he discovered this reporting error in the cause of death of the FSM.  He feels the FSM's family should be notified as quickly as possible of the true cause of death.  It is for that purpose that he submitted this affidavit.
   
      (2) He stated that on 26 October 1969 his platoon was on ambush duty in Thua Thien Province, RVN.  He had broken up his platoon into small ambush teams and had to integrate personnel between squads because the platoon was understrength.  The 3rd squad consisted of seven members.  Their ambush position was across a river from two other ambush teams.  One team consisted of him and four other Soldiers approximately one-half mile from the 3rd squad.  The other team was approximately 1/2 mile from his location and one mile from 3rd squad's location.  There were no other friendly units within their operating area.  In the middle of the night 3rd squad received automatic weapons fire 
(AK-47); 3rd squad returned fire and was immediately hit by three rounds of rocket-propelled grenade (RPG) fire, plus AK-47 fire.  He received an immediate call from what was left of 3rd squad.  He was told the squad leader, the FSM, and Private J were dead.  The four remaining members of 3rd squad were all wounded and needed help.  A helicopter in the area took him to the 3rd squad location at which time they received automatic weapons and RPG fire.  Upon arrival at the 3rd squad's location he found the three Soldiers' bodies.  The bodies were in close proximity to each other.  He checked the bodies to verify the Soldiers were dead.  He then started checking the wounded to see if they were stable and able to move.  He repositioned the men and told them to hold their fire so as not to give the enemy RPG men easy targets.  They received some probing fire, then nothing.  In the morning the helicopters came and medivaced the wounded and dead.
   
      (3) He stated that in reviewing these documents, the time lines are where mistakes were made.  The squad leader and Private J's bodies went to the 85th Evacuation Hospital on the same helicopter.  They could not fit the FSM's body on the same helicopter because of the rigor mortis of the bodies.  The helicopter was supposed to return to pick up the FSM's body after dropping off the two bodies.  They received a call that the helicopter was diverted to another unit in an emergency situation resulting in the FSM's body being picked up 3 hours later.  The other two Soldiers’ paperwork is correct.  The FSM's body arrived 3 hours later and the times and findings were incorrect.  It appeared to him that some kind of mix-up occurred at the 85th Evacuation Hospital that produced an incorrect result.
   
   c.  The AGPZ Form 80, DA Form 10-249, and DD Form 893 for two other Soldiers.  These two Soldiers' forms show they both died at 0845 hours, 26 October 1969, and were dead on arrival at the 85th Evacuation Hospital.  The casualty reports show that these two Soldiers were killed in action in Vietnam on 26 October 1969 while on a combat operation when a hostile force was encountered. 
   
   d.  The FSM's DA Form 10-249  which shows the time of his death as 2045 hours, 26 October 1969, and that he was dead on arrival at the 85th Evacuation Hospital.

DISCUSSION AND CONCLUSIONS:

1.  The FSM's AGPZ Form 80, DA Form 10-249, and DD Form 893 show he was killed by friendly fire.

2.  The FSM's platoon leader's statement to an elected official indicates the FSM's death was incurred as a result of hostile enemy action.  His statement appears to be plausible and there is no reason not to believe his statement. 

3.  A Vietnam Casualty Roster entry shows the FSM was killed outright by hostile action on 26 October 1969.

4.  In view of the foregoing, the applicant is entitled to have the FSM's records reflect that the FSM was killed as a result of hostile enemy action and not as the result of friendly fire.

BOARD VOTE:

____X____  ___X_____  ____X____  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

The Board determined the evidence presented was sufficient to warrant a recommendation for relief.  As a result, the Board recommends that all Department of the Army records of the individual concerned be corrected by preparing an appropriate document stating the FSM was killed by hostile enemy action and placing a copy of this document in his military record.  




      _______ _   _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)                                         AR20130008969



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ABCMR Record of Proceedings (cont)                                         AR20130008969



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