IN THE CASE OF:	  

		BOARD DATE:	  10 April 2014

		DOCKET NUMBER:  AR20130011981 


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 Air Medal with Numeral 36, Bronze Star Medal (BSM), Purple Heart (PH), and all other awards he is entitled to for his combat service in Vietnam.

2.  The applicant states:

   a.  his awards earned for his service as a combat aviator in Vietnam were not transcribed on his DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge) at the time of his discharge;
   
   b.  he sustained a concussion during combat when his aircraft was forced to land in a rice paddy as a result of aircraft failure entitling him to the PH;
   
   c.  he includes ABCMR Docket Number AR2004102091, which is identical to his in many ways, shows this warrant officer pilot was awarded a bronze service star for each campaign his unit participated in during his tour in combat;
   
   d.  he was rated 100 percent (%) disabled for his military service which should be correctly documented in his record;
   
   e.  he should be recognized for his command of two cited missions wherein he captured a Viet Cong Commander during a night medical evacuation mission and for safely bringing his aircraft and its passengers to the ground during a low altitude flight emergency; and
   
   f.  he provides statements from two of his former executive officers (XO) who support his claim for the BSM for his service.

3.  The applicant provides:

* Self-Authored Statement
* 5 Witness Statements
* Document titled "Army Changes PH Rules"
* 8 pages of unit operations listings and maps
* 5 pages of Department of Veterans Affairs (VA) record document extracts
* 8 pages of Department of the Army medical record document extracts
* 5  WebMD internet documents
* ABCMR Docket Number AR2004102091
* Army Review Boards Agency Letter dated 6 November 2012
* National Personnel Records Center (NPRC) Email
* DD Form 214 (Report of Separation from Active Duty) and orders for the Distinguished Flying Cross.

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 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 initially enlisted in the Regular Army (RA) on 3 March 1969.  On 8 March 1970, he was honorably discharged from active duty in the rank of specialist five/E-5 with 1 year, 1 month, and 5 days of total military service.

3.  On 9 March 1970, he accepted an appointment in the U.S Army Reserve (USAR) as a warrant officer (WO1) and entered active duty.  He was trained in and awarded area of concentration 100BO (Rotary Wing Observation Helicopter Pilot).

4.  His DA Form 66 (Officer Qualification Record) shows he was assigned for duty in the Republic of Vietnam (RVN) on 15 April 1970, with the 117th Aviation Company.  His DA Form 759 (Individual Flight Record and Flight Certificate) show he completed a total of 1,116 hours of pilot time of which 911 hours were pilot combat time.

5.  On 15 April 1971, he was honorably released from active duty with 2 years, 4 months, and 11 days of creditable active service of which 11 months and 19 days was foreign service.  His DD Form 214 for this period of active duty service shows he was awarded or authorized the following awards:

* National Defense Service Medal
* Army Aviator Badge
* Army Good Conduct Medal
* Vietnam Service Medal (VSM)
* AM
* RVN Campaign Medal

6.  There are no orders or any other evidence in his Army Military Human Resource Record (AMHRR) which show he was awarded the BSM, PH, or AM with Numeral 36.  There are no documents contained in the AMHRR to show the applicant was injured or treated for a combat-related wound.

7.  During the processing of this case, a member of the Board's staff reviewed the Awards and Decorations Computer Assisted Retrieval System (ADCARS).  This is a web based index containing general orders issued during the Vietnam era between 1965 and 1973.  No orders for the Air Medal pertaining to the applicant were found in ADCARS.

8.  The applicant provided 8 pages of medical record document extracts which show he received treatment for the following conditions or symptoms while assigned for duty in the RVN:

* gastroenteritis
* sinus congestion and nasal stuffiness
* chills, cold sweat, and vomiting
* hurting ears
* small cut on shoulder

9.  The applicant provides witness statements from four individuals who support his claim for the BSM.

   a.  A former XO who was assigned with the applicant in Vietnam from April – December 1970, states barring evidence to the contrary, the applicant should have received the BSM.
   
   b.  A former XO who served with the applicant while assigned with the 117th Aviation Company in Vietnam from January – December 1971 states:
   
* the applicant achieved the designation "Aircraft Commander," which was bestowed upon those who demonstrated not only exceptional flying proficiency, but an overall situational awareness and sense of responsibility to the assigned crew and mission
* someone with the applicant's experience would have received the BSM upon successful completion of his tour, which was likely an oversight;

   c.  A former door gunner and crew chief who indicates he was assigned with the applicant in Vietnam states:
   
* the applicant was the aircraft commander on several of his missions
* the applicant appeared to be unconscious for a few minutes after they were forced to land their helicopter in a rice paddy due to hydraulic failure
* the applicant suffered a concussion from the forced landing and surely complained of headaches and dizziness for sometime after that event

   d.  A former Soldier and current friend states:
   
* he and the applicant trained together in Primary Helicopter Flight School and were separately assigned to Vietnam as helicopter pilots
* he admired the applicant's courage to volunteer to fly night firefly missions
* the applicant is no longer his once lively, carefree and happy self
* the applicant now reacts to the traumatic events he experienced in Vietnam with high anxiety, physical shaking and trembling of hands, persistent sleep issues, and generalized irritability

10.  The applicant provides ABCMR Docket Number AR2004102091, dated 2 November 2004, which shows a former Soldier requested correction of his record to add the BSM and the AM with 13th through 24th Numeral.
   
a. Based on official orders contained in this individual’s AMHRR announcing his award of the BSM, it was added to his record and DD Form 214.
   
   b.  Based on his 1,349 flight hours performed as shown on his DA Form 66B (Insert Sheet to DA Form 66) and a citation he provided recommending his award of the AM with Numeral 13 – 24, his record was corrected to add the AM with Numeral 24.

11.  The applicant provides a four-page "WebMD" document which shows nausea or vomiting, headaches, balance problems or dizziness, ringing in ears, and concentration difficulties are symptoms of a concussion (also known as traumatic brain injury).

12.  Army Regulation 600-8-22 (Military Awards) provides Department of the Army policy, criteria, and administrative instructions concerning individual military decorations, service medals and ribbons, unit decorations, and similar devices awarded in recognition of accomplishments.  

	a.  Paragraph 2-8 contains the regulatory guidance pertaining to award of the PH.  It states that 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 result of enemy action, that the wound required treatment by medical personnel, and a record of this medical treatment must have been made a matter of official record.

   b.  The Vietnam Service Medal is awarded to all members of the Armed Forces of the United States for qualifying service in Vietnam after 3 July 1965 through 28 March 1973.  A bronze service star is authorized with this 
award for each Vietnam campaign a member is credited with participating in  Appendix B shows that during his service in Vietnam, the applicant participated in the following three campaigns:

* Vietnam Winter Spring 1970
* DA Sanctuary Counteroffensive
* Vietnam Counteroffensive Phase VII

   c.  Paragraph 3-14 contains guidance on award of the BSM and states it is awarded for heroic acts, or meritorious achievement or service, of a lesser degree than required for the Silver Star.

	d.  Paragraph 3-17 states the AM is awarded in time of war for heroism and for meritorious achievement or service while participating in aerial flight.  

	e.  As with all personal decorations, formal recommendations, approval through the chain of command, and announcement in orders are required.

	f.  Arabic numerals are now used instead of oak leaf clusters for the second and succeeding awards of the Air Medal.  The numeral 2 denotes the second award of the AM.

13.  U.S. Army Vietnam Regulation 672-1 (Decorations and Awards) provided, in pertinent part, guidelines for award of the Air Medal.  It established that passenger personnel who did not participate in an air assault were not eligible for the award based upon sustained operations.  It defined terms and provided guidelines for the award based upon the number and types of missions or hours. Twenty-five Category I missions (air assault and equally dangerous missions) and accrual of a minimum of 25 hours of flight time while engaged in Category I missions was the standard established for which sustained operations were deemed worthy of recognition by an award of the Air Medal.  However, the regulation was clear that these guidelines were considered only a departure point.

14.  Combat missions were divided into three categories.  A category I mission was defined as a mission performed in an assault role in which a hostile force was engaged and was characterized by delivery of ordnance against the hostile force, or delivery of friendly troops or supplies into the immediate combat operations area.  A category II mission was characterized by support rendered a friendly force immediately before, during or immediately following a combat operation.  A category III mission was characterized by support of friendly forces not connected with an immediate combat operation but which must have been accomplished at altitudes which made the aircraft at times vulnerable to small arms fire, or under hazardous weather or terrain conditions.

15.  To be recommended for award of the Air Medal, an individual must have completed a minimum of 25 category I missions, 50 category II missions, or     100 category III missions.  Since various types of missions would have been completed in accumulating flight time toward award of an Air Medal for sustained operations, different computations would have had to be made to combine category I, II and III flight time and adjust it to a common denominator.

16.  Department of the Army Pamphlet 672-3 (Unit Citation and Campaign Participation Credit Register) lists the awards received by units serving in the RVN.  This pamphlet shows the 117th Aviation Company was cited for award of the RVN Gallantry Cross with Palm Unit Citation and RVN Civil Actions Honor Medal First Class Unit Citation.

17.  Title 10 of the U.S. Code, section 1130 (10 USC 1130) provides the legal authority for consideration of proposals for decorations not previously submitted in a timely fashion.  Upon the request of a Member of Congress, the Secretary concerned shall review a proposal for the award of or upgrading of a decoration.  Based upon such review, the Secretary shall determine the merits of approving the award.

18.  The request, with a DA Form 638 (Recommendation for Award), must be submitted through a Member of Congress to:  Commander,  U.S. Army Human Resources Command, ATTN:  AHRC-PDP-A, 1600 Spearhead Division Avenue, Fort Knox, KY  40122.  The unit must be clearly identified, along with the period of assignment and the recommended award.  A narrative of the actions or period for which recognition is being requested must accompany the DA Form 638.  Requests should be supported by sworn affidavits, eyewitness statements, certificates, and related documents.  Supporting evidence is best provided by commanders, leaders, and fellow Soldiers who had personal knowledge of the facts relative to the request.  The burden and costs for researching and assembling supporting documentation rest with the applicant.

DISCUSSION AND CONCLUSIONS:

1.  The applicant's request for award of the AM with Numeral 36, BSM, PH and all other awards to which he may be entitled has been carefully considered.

2.  The evidence of record confirms he completed a total of 911 hours of pilot combat time during the period 15 April 1970 to March 1971, as reflected on his DA Form 759.  It can be presumed that his flight missions were category I missions.  Therefore, it would be appropriate to award him the Air Medal with Numeral 36 and to correct his DD Form 214 to show this award.

3.  His DD Form 214 confirms his award of the VSM.  However, he participated in three campaigns during his tours of duty in the RVN.  Therefore, his 
DD Form 214 should be corrected to show the VSM with three bronze service stars.

4.  Based on his service with the 117th Aviation Company, he is also entitled to correction of his DD Form 214 to show the RVN Gallantry Cross with Palm Unit Citation and RVN Civil Actions Honor Medal First Class Unit Citation.

5.  The applicant provided one other case previously reviewed by the ABCMR wherein this individual's request for the BSM was granted based on official orders maintained in his AMHRR authorizing him this award.  While each case is decided based on its individual merits, this case was carefully reviewed and compared with the applicant's case.  However, the applicant's AMHRR failed to include any evidence or orders to show he was ever awarded or recommended for the award of the BSM.  Therefore, notwithstanding the applicant's claim and the evidence he provides, there is no basis upon which to grant him the BSM.


6.  While the available evidence is insufficient for awarding the applicant the BSM, this in no way affects the applicant’s right to pursue his claim for these awards by submitting a request through his Member of Congress under the provisions of Title 10, U.S. Code, section 1130.

7.  Finally, there is no available evidence showing the applicant suffered a combat wound as a result of enemy action.  Item 40 of the applicant's DA Form 20 is blank and his name is not included on the Vietnam Casualty Roster.  In addition, the evidence he provides contains no evidence showing the applicant was wounded as a result of enemy action and medically treated for any wounding.  

8.  Further, the applicant stated the aircraft was forced to land as a result of aircraft failure, and the former door gunner and crew chief also stated the helicopter was forced to land due to hydraulic failure.  

9.  Absent evidence to corroborate he was wounded as a result of enemy action and that he was treated for those wounds by military medical personnel while serving in the RVN the evidence he provides is insufficient to show he met the criteria for award of the Purple Heart.

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

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

_____X___  ___X_____  ____X____  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

1.  The Board determined that the evidence presented was sufficient to warrant a recommendation for partial relief.  As a result, the Board recommends that all Department of the Army records of the individual concerned be corrected by:

	a.  awarding him the Air Medal with numerals 2 through 36;
	b.  deleting from his DD Form 214 for the period ending 15 April 1971 the Vietnam Service Medal and adding the:

* Air Medal with Numeral 36
* Vietnam Service Medal with 3 bronze service stars
* Republic of Vietnam Gallantry Cross with Palm Unit Citation
* Republic of Vietnam Civil Actions Honor Medal First Class Unit Citation

c.  issuing him a correction to his DD Form 214 to reflect these corrections.

2.  The Board further determined that the evidence presented is insufficient to warrant a portion of the requested relief.  As a result, the Board recommends denial of so much of the application that pertains to the Bronze Star Medal and Purple Heart.



      _______ _   _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)                                         AR20130011981



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ABCMR Record of Proceedings (cont)                                         AR20130011981



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