IN THE CASE OF:	  

		BOARD DATE:	  12 May 2015

		DOCKET NUMBER:  AR20140017081 


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 reconsideration of his earlier request for award of the Purple Heart and Bronze Star Medal. 

2.  As new issues, he requests award of the Distinguished Flying Cross and Bronze Star Medal with "V" Device and medical retirement. 

3.  The applicant states: 

	a.  His attempt to correct his military combat records has been a long and arduous struggle, lasting over 45 years.  As he had previously stated in his several communications with this Board, many veterans felt angry and insulted.   Secretary of State Kerry threw his many purple hearts, bronze stars, etc., at the nation's Capitol decades ago.  The vast majority of veterans wanted to put that all but publicly supported "war" behind them.  He puts the word "war" in quotation marks because even the Veterans of Foreign Wars (VFW) would not recognize his service to this country for decades, refusing to recognize his combat service and refusing Vietnam Combat Veterans membership.  Who even wanted this recognition?  At the time, surely it was not him.  The Army had a reduction in force (RIF) of 6,000 pilots.  He was one of these.  The war was something he put behind him.  It seems the military felt the same way about him and the troops who fought in that war.  His incomplete service records from the era attest to that. 

	b.  However, at the time, the fact that his military records were so flawed and underrepresented really had no bearing on his life.  The fact is they did have reaching effects.  The lack of evidence of "stressors" in his military records led the Department of Veterans Affairs (VA) to deny his initial attempts to be seen for combat-related injury until recently.  As a result, he has missed out on decades of benefits, something this Board can, most likely, not do anything about.  However, he now has children and grandchildren and a wife who demand from him that he fights for his deserved combat ribbons and citations.  Had he been like Secretary Kerry during his Vietnam service (according to those who served with him), he would have been in the Operations Room almost nightly trying to be awarded for this or that event of the day.  But unlike him and some others, he had no aspirations other than to do his duty and survive another day along with his crew and those he was flying to protect and serve.  This he did to his best ability, regardless of ribbons.  Little did he know that the lack of these combat awards would keep him from medical treatment and benefits for decades.

	c.  There are several who suggest that he should have been "medically retired" or have received "early retirement" when he resigned his commission as a warrant officer after more than 17 years.  This is something he believes could, perhaps, be accomplished by this Board, awarding him a well-deserved military pension.  He realizes now, after years of counseling, that his resignation was due to post-traumatic stress disorder (PTSD) at the time as a result of him serving in the Rhode Island Army National Guard (RIARNG) as a pilot.  At the time, hostages were being taken in Iran, wars were erupting in South America, and for him the stress was overwhelming.  However, that point should not cloud this submission of new information regarding his plight to finally receive the combat decorations that are well overdue.  He has, to date, submitted several documents, most of which he has received copies of only after decades of searching various offices and elements of the U.S. military bureaucratic machine: The same machine that cut his 4-year promise of active duty short by almost 3 years (along with 6,000 other warrant officer aviators) in 1971 as the war wound down.  He was just another pilot dumped on the street "upon the needs of the military" he believes is what the code on the DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge) means.  He was essentially "fired" (for doing a good job), and he was unemployed in the worst economy in a century.  His DD Form 214 was all but blank.  The military believed, and correctly so, that aviators would not know how to or even care to have these oversights made accurate.  At the time, he did not. He had no idea of how adversely this grievous oversight by the U.S. military would diminish his service.  Obviously, his service meant nothing to those who commanded him or our government.  If it were not for the Internet, he is sure he would still be unable to locate and contact individuals with whom he served or who were in his chain of commanding officers in order to make this request. 

	d.  The regulation limiting the amount of time allowed to file for these corrections has been waived.  He believes this is at least his 3rd recent attempt to correct these records.  He hopes to finally be able to do so without providing another Congressman a “photo-op” as suggested on page 8, paragraph 6 of the decision documents (dated 15 April 2014) he received from his most recent attempt to correct these records.  Through additional internet search, he was able to contact additional individuals and he is enclosing documents that should fulfill this Board's demands for evidence.  As it turned out, he was finally and deservingly awarded the numeral 36 on his Air Medal as well as recognition for 3 campaigns for which he provided documentation of in the April 2014 decision.  This was done despite the gross oversight to his records by his unit commander in Vietnam.  

	e.  As for the Purple Heart, on page 5, paragraph 12, section 12, the Board states that he has no evidence of injury due to enemy action.  At the same time, the Board on page 3, paragraph 8 notes, that his military medical record indicated he had a laceration (cut) on his shoulder.  He had never thought to even mention this injur; however, as the Board itself has notated this combat wound in his record, he has now enclosed documentation from additional sources that this injury is combat related, resulting from injuries sustained during an enemy mortar and rocket attack on the 117th Attack Helicopter Company area.  The VA Form 21-4138 submitted by Chief Warrant Officer Bomberger and Lieutenant Colonel (LTC) Allanach, the former executive officer of the 117th Attack Helicopter Company in Vietnam, attest to that.  These individuals both attest to witnessing and being aware of this incident.  As the injury was not life threatening and as men were dying daily, he had never considered following up on the many suggestions at the time of the attack to go forward with this claim.  In view of the current circumstances, he is now able to collect the necessary data and is requesting that he receive the Purple Heart for this combat injury.

	f.  As for the Bronze Star Medal with "V" Device and the Distinguished Flying Cross:

		(1)  He had submitted documentation of a dangerous night medical evacuation mission while flying "Fire Fly" missions in Vietnam.  The request for recognition of this event was denied despite supporting documentation from the unit executive officer, LTC Allanach.  The denial was based on the argument that no orders were issued (page 7, paragraph 5; page 8, paragraph 6).  He is also submitting a VA Form 21-4138 from LTC Allanach.  He was a CPT at the time and serving as executive officer.  He recalls the combat actions while he (the applicant) was aircraft commander, flying night firefly missions along the Cambodian border.  He states that he, himself (LTC Allanch), was awarded the Distinguished Flying Cross for a similar mission during his previous tour of duty as a combat helicopter pilot in Vietnam.  Based on his recommendation alone this award, he believes, should be made.  The other instance is an engine failure and forced landing during enemy action while supporting a U.S. Navy SEALS Team in the Mekong Delta.  This event was previously documented to this Board in a statement provided by his crew chief at the time, Specialist Four (SP4) Morales.  He (the applicant) has included additional documentation to further assert the validity of these claims and document the reasons for absence of orders that would have been drafted at the time.  This injustice to him is further explained and documented in the statements and forms submitted by 2 former executive officers from the unit during the time period.  These additional statements are enclosed with this appeal.

		(2)  The instances for which he requested appropriate merit be awarded have been well documented previously to this Board in statements submitted by crewmembers present during the events and by his former commanding officers, executive officers of the 117th Attack Helicopter Company, LTC Allanach and LTC Taylor, during his tour of combat duty.  He is now including additional information as requested.  In the VA Form 21-4138, LTC Taylor states that due to the "special missions" nature of the 117th Attack Helicopter Company, most missions they flew demanded that they be assigned to support various units throughout Vietnam.  These missions were varied.  As a result, citations were most often overlooked or "lost in the mail" as a result of the mission structure.  He believes CPT (rank at the time he was executive officer) Taylor's statement clearly explains why orders for these combat operations were most often never cut.  Additionally, there was a war going on and everything had to be hand typed, made in triplicate using carbon paper and mailed in sacks by helicopter or truck in a combat zone.  Needless to say, other priorities took hand. 

		(3)  LTC Allanach has also submitted a completed a DD Form 149 (Application for Correction of Military Records) with these 3 recommendations for these awards listed.  He has also signed a DA Form 638 (Recommendation for Award), another form he has only recently become aware of even existing.  He hopes that these long overdue corrections to his military record can be made forthwith.  He would surely like to resolve this issue without providing yet another political candidate another photo op during an election cycle.  Despite overwhelming evidence (listed on page 3, paragraph 8 of the denial) of traumatic brain injury (TBI) concussion in the medical records, this combat injury was denied as not a result of enemy action.  To the contrary, he believes the mere fact that he was flying combat missions inserting U.S. Navy SEALs into hostile areas of the Mekong Delta in Vietnam itself was a result of enemy action.  If not a Purple Heart, he believes that, given the documentation of the merit of this action and combat injury, appropriate recognitions should be assigned to this combat action in the face of enemy action.

		(4)  The documents he received in the April 2014 decision packet stated that there is no DA Form 638.  While this is seemingly yet another form that has popped up after years of appeals, he found one online and it is being submitted with this application, completed by LTC Allanach who would have, given his role as executive officer, been authorized to make these decisions.  Should this form require a Congressional signature as well, he wants the Board to forward it to the appropriate Congressional Representative for signature.  In an election cycle, he does not wish to provide any political element to his case if it is not necessary.  He would trust that this additional step will not be necessary and that these awards will be granted on the merits presented alone.  

	g.  This new information, compiled with documentation previously submitted, should, beyond any doubt, provide evidence sufficient to the merits of these claims for combat recognition.  Again, if this Board has within its power to do so, he requests that his status be changed to "Retired."

4.  On 2 December 2014, he provided additional documentation in the form of a VA rating decision, dated 25 November 2014 in which the VA has recognized evidence submitted and the medical evaluation he underwent for a concussion received by him during his tour of combat duty in Vietnam.  As the Board can see, while he was not awarded residual health effects from this injury, he has received disability recognition for concussion by the VA for this combat injury.  In 2010 National Public Radio (NPR) reported that some Army commanders refused to award the Purple Heart to many troops who got concussions in combat because they didn't consider these "real" injuries.  According to NPR, as a result of the NPR story, the Army did its own investigation and put out new guidelines on the Purple Heart.  Later, the Army told NPR that under the new rules, they've finally awarded the medal to over 1,000.  Army regulations have, for decades, stated that a concussion is just as much an injury as bullet wounds or the effects of poison gas.  He believes his combat concussion falls well within these guidelines.  According to USA Today (3/18/2011), the decision to expand the definition/or concussions will mean thousands of Purple Heart medals going to Soldiers denied them in the past.  Previously, as the VA (at the time) had not recognized his injury, he was denied his claim for a Purple Heart for the concussion he received during a forced landing while flying combat missions in Vietnam.  The supporting documents he submitted should be in his file already.

5.  The applicant provides:

* VA rating decision, dated 17 November 2014
* VA Form 21-4138 (Statement in Support of Claim), dated 2 August 2014, from Chief Warrant Officer Bomberger
* VA Form 21-4138, dated 19 June 2014, from Captain (CPT) Taylor
* VA Form 21-4138, dated 5 August 2014, from LTC Allanach
* DA Form 638 (Recommendation for Award)
* Internet printout about the history of the 117th Assault Helicopter Company  
* DD Form 149 

CONSIDERATION OF EVIDENCE:

1.  Incorporated herein by reference are military records which were summarized in the previous consideration of the applicant's case by the Army Board for Correction of Military Records (ABCMR) in Docket Number AR20130011981, dated 10 April 2014. 

2.  The applicant provides a new argument (related to the Purple Heart) and raises new issues.  His application will be considered by the Board. 

3.  With respect to the Distinguished Flying Cross and Bronze Star Medal:

	a.  The Board previously adjudicated the applicant's case and determined there was no evidence he was recommended for or awarded the Bronze Star Medal.  Likewise, there is no evidence he was recommended for or awarded the Distinguished Flying Cross or the Bronze Star Medal with “V” Device.  The governing regulation states for personal decorations, a formal recommendation, approval through the chain of command, and announcement in orders are required for award of the Bronze Star Medal.  The same rule applies to the Distinguished Flying Cross and the Bronze Star Medal with “V” Device. 

	b.  Army Regulation 600-8-22 (Military Awards) states no military decoration, except the Purple Heart, will be awarded more than 3 years after the act or period of service to be honored.  Exceptions to the time limit include decorations approved under Title 10, U.S. Code (USC), Section 1130. 

	c.  The Board also previously advised the applicant that Title 10, USC, section 1130 allows the Service Secretary concerned to review a proposal for the award of, or upgrading of, a decoration that is otherwise precluded from consideration by limitations established by law or policy.  In order to request an award under Title 10 USC 1130, the applicant must submit a DA Form 638.  The DA Form 638 should clearly identify the unit, the period of assignment, and the award being recommended.  A narrative of the actions or period for which the member is requesting recognition must accompany the DA Form 638.  In addition, the award request should be supported by sworn affidavits, eyewitness statements, certificates and related documents.  Corroborating evidence is best provided by commanders, leaders, and fellow Soldiers who had personal (i.e., eyewitness) knowledge of the circumstances and events relative to the request.

	d.  Title 10, USC, section 1130 also requires that a request of this nature be referred to the Service Secretary from a Member of Congress.  Therefore, the applicant must submit his or her request through a Member of Congress who will send it to the U.S. Army Human Resources Command (HRC), Army Decorations Board, ATTN: AHRC-PDP-A, 1600 Spearhead Division Avenue, Fort Knox, KY 40122.  The burden and costs for researching and assembling documentation to support approval of requested awards and decorations rest with the requestor.

	e.  The applicant submitted a DA Form 638 together with three statements with his current application.  Unfortunately, his request for award of the Distinguished Flying Cross and Bronze Star Medal with “V” Device was neither referred to the Service Secretary from a Member of Congress nor was it addressed to the Army Decorations Board at HRC, Fort Knox, KY.  There is no evidence that the applicant has submitted a request to the U.S. Army Human Resources Command and was denied relief.

	f.  Paragraph 2-5, Section II, Army Regulation 15-185, the regulation under which this Board operates, states that the Board will not consider any application if it determines that the member has not exhausted all administrative remedies available to him/her. 

	g.  The case analyst of record and a staff member of the Case Management Division, Army Review Boards Agency, contacted the applicant via telephone on 
21 April 2015.  He fully understands that he failed to exhaust his administrative remedy by following the law as prescribed in Title 10, USC, section 1130.  Because he has not submitted his request in accordance with Title 10, USC, section 1130, and has not been denied relief, his request to this Board for award of the Bronze Star Medal, and now the Distinguished Flying Cross and Bronze Star Medal with “V” Device is premature.  The original DA Form 638 and the witness statements submitted with this application were returned to him and this portion of his application will not be discussed further in the Record of Proceedings. 

4.  With respect to the medical retirement:

	a.  The case analyst of record and a staff member of the Case Management Division contacted the applicant via telephone on 21 April 2015.  He was not aware that there is a difference between the military department and the VA and/or the difference between unfitness and service-connection. 

	b.  The applicant understood and agreed that he would search for and collect his service medical records and, when ready, he could submit a separate application concerning medical retirement.  As a result, this portion of his application will also not be discussed further in the Record of Proceedings. 

5.  The applicant's records show he enlisted in the U.S. Army Reserve (USAR) under the Delayed Entry Program on 4 February 1969.  He entered active duty for training on 3 March 1969.  

6.  He completed all phases of the Warrant Officer Rotary Wing Aviator Course and he was honorably discharged from active duty on 3 March 1970 to accept appointment as a warrant officer.  His DD Form 214 for this period of service shows he was awarded or authorized the National Defense Service Medal.

7.  He was appointed as a Reserve warrant officer of the Army and executed an oath of office on 9 March 1970, with concurrent call to active duty.  He held military occupational specialty 100B (Rotary Wing Pilot – Observation Utility and Cargo Helicopter).  He served in Vietnam from 15 April 1970 to 3 April 1971.  He was assigned to 117th Aviation Company (Assault Helicopter).  

8.  He was honorably released from active duty on 15 April 1971 and he was transferred to the USAR Control Group (Annual Training) to complete his remaining service obligation.  His DD Form 214 for this period of service shows he was awarded or authorized the:

* National Defense Service Medal
* Army Good Conduct Medal 
* Army Aviator Badge
* Vietnam Service Medal
* Air Medal
* Republic of Vietnam Campaign Medal

9.  On 3 June 2014, the Board denied the portion of his request that pertained to award of the Purple Heart but awarded him partial relief and he was issued a 
DD Form 215 (Correction to DD Form 214) that added the: 

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


10.  There is no evidence of record that shows he was injured or wounded as a result of hostile action or that he was awarded the Purple Heart.  Nothing in several typical sources show he was wounded/injured as a result of hostile action:

	a.  Item 10 (Assignment Limitations) of his DA Form 66 (Officer Qualification Record) does not show a combat wound or injury.  Normally, but not always, an entry of this nature is made in this block.

	b.  A review of the Awards and Decorations Computer Assisted Retrieval System maintained by HRC, 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.

	c.  His name is not shown on the Vietnam casualty roster, which is a microfiche listing of Vietnam-era casualties that is used to verify entitlement to the Purple Heart.

	d.  His records do not contain an official Army message or a Western Union telegram notifying his next of kin of an injury or wound.  This was the proper notification of injuries at the time.

	e.  His medical records and/or separation Standard Form 88 (Report of Medical Examination), which would have listed any combat injuries or treatment and the subsequent treatment, are not available for review with this case. 

	f.  His contemporaneous officer evaluation reports (1970 to 1971) did not mention a combat injury. 

	g.  There are no morning reports that confirm a duty status change from present for duty to patient or after action reports that confirm by name U.S. casualties on the date the applicant claimed he was wounded in action. 

11.  He provides: 

	a.  VA rating decision, dated 17 November 2014, that listed service-connection for residuals of concussion, at the rate of 0 percent, effective 16 June 2011.  The decision states the concussion is directly related to military service. 

	b.  VA Form 21-4138, dated 5 May 2014, wherein LTC Allanach identifies himself as the former executive officer of the 117th Assault Helicopter Company. He describes the mission of his company and the applicant's performance during multiple assaults, medical evacuations, and resupply missions.  He does not mention a combat wound. 

	c.  VA Form 21-4138, dated 2 August 2014, from Chief Warrant Officer Bomberger who states he was an officer of the same unit at the time.  He states he recalls the applicant sustained an injury to his shoulder during an attack from debris that was flying around.  The injury was a direct result of enemy action in Vietnam.  He also remembers the applicant being hit one evening when the alarm sounded during an attack.  While the applicant ran to the bunker, he was hit with debris created by the enemy action of incoming rounds.  Afterwards, he was sent to the medics that were used by the 117th.  They treated his injury and he (the author) recalls seeing the applicant returning to the hooch area with bandages on his shoulder.  Chief Bomberger does not recall which shoulder but he recalls the applicant showing him the entry in his medical records documenting the combat injury.  It was suggested by some that the applicant should be recommended for the Purple Heart; however, he laughed that suggestion off at the time.  There were too many Soldiers dying.  His (the applicant's) medical records from Vietnam document that in October 1970 he was treated for a laceration on his shoulder at which time he was also treated for an infection.  The record shows his wound was closed with steri-strips to heal. 

	d.  VA Form 21-4138, dated 19 June 2014, from CPT Taylor who states he was assigned to the 117th Aviation Company as a former executive officer, airlift platoon commander, and aircraft commander.  He then makes some general comments about the unit.  He does not mention a combat wound. 

12.  Army Regulation 600-8-22 (Military Awards) provides that the Purple Heart is awarded for a wound sustained while in action against and 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.  Examples of enemy-related injuries which clearly justify award of the Purple Heart are as follows:

* injury caused by enemy bullet
* shrapnel
* or other projectile created by enemy action
* injury caused by enemy placed mine or trap
* injury caused by enemy released chemical, biological, or nuclear agent
* injury caused by vehicle or aircraft accident resulting from enemy fire and/or concussion injuries caused as a result of enemy generated explosions

DISCUSSION AND CONCLUSIONS:

1.  The criteria for 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 medical treatment by medical personnel, and the medical treatment must have been made a matter of official record.

2.  The applicant's service record is void of any documentary evidence that shows he was wounded or injured as a result of combat.  His name is not listed on the Vietnam casualty roster.  His medical records are not available for review and there is nothing in multiple typical sources that confirm he was wounded as a result of hostile action or that he required treatment by medical personnel.

3.  The applicant provides three statements in support of claim, each from a former member of the unit: 

	a.  The statements provided by LTC Allenach and CPT Taylor talk about the unit and its mission in Vietnam.  LTC Allenach and CPT Taylor do not mention that the applicant sustained a combat wound. 

	b.  The statement submitted by Mr. Bomberg is noted.  However, it is based on recollection of events that occurred some 45 years ago, and while his sincerity is not in question, Mr. Bomberg's recollection of these events is not supported by any documentary evidence such as an operations report, an after action report, or other official record .  As such, the elements for award of the Purple Heart (combat injury, treatment, official record) have not been met.  

4.  The VA awarded him service-connection for residuals of TBI.  However, nowhere in his records does it show he sustained TBI or concussion as a result of hostile action.  “Service-connected” does not equate to “caused by enemy action.”  

5.  The applicant's contentions and sincerity are not in question.  However, in the absence of documentation that conclusively shows he was wounded or injured as a result of enemy action and treated for those wounds, there is an insufficient evidentiary basis for awarding him the Purple Heart.







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 to amend the decision of the ABCMR set forth in Docket Number AR20130011981, dated 10 April 2014.



      _______ _   _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)                                         AR20140017081





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ABCMR Record of Proceedings (cont)                                         AR20140017081



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