BOARD DATE: 30 June 2015
DOCKET NUMBER: AR20140018036
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, the spouse of a deceased former service member (FSM), requests the DD Form 1300 (Report of Casualty), dated 28 July 1977, be corrected to show in item 4 (Casualty Status) as Battle and KIA (Killed in Action) instead of Non - Battle and Death, respectively.
2. She states this was an international incident on 14 July 1977, which resulted in the death of three service men and the capture of one service man due to enemy gunfire that shot down a U.S. helicopter.
3. She provides:
* DD Form 1300, dated 28 July 1977
* Orders 102-3, dated 18 July 1977 and Purple Heart Certificate
* Marriage Certificate with Decree Granting Change of Name of Adult, dated 23 January 1998
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 enlisted in the Regular Army on 29 May 1973. He was honorably discharged on 2 March 1975 for immediate reenlistment which was accomplished the following day. He served two tours in Korea from 11 January 1974 to 5 January 1975 and 7 April 1977 to 14 July 1977.
3. On 14 July 1977, a TAGO Form 9-13 (Report of Casualty), dated 14 July 1977, stated that the FSM was the crew member of a military helicopter that accidentally strayed over North Korean territory on 14 July 1977. The helicopter was shot down by members of the North Korean Armed Forces and the status of FSM was presently undetermined.
4. Item 4 of the DD Form 1300, Final Report, lists the FSM's casualty status as "Non - Battle" and "Death" with the date listed as 14 July 1977. The form shows the incident took place in Korea and the cause and circumstance was listed as "Injuries received while a crew member on a military helicopter which was shot down by North Koreans."
5. Orders 102-3, dated 18 July 1977 and certificate show the FSM was awarded the Purple Heart posthumously for wounds received in Korea on 14 July 1977 which resulted in his death.
6. Army Regulation 600-8-1 (Army Casualty Program) prescribes the policies and procedures for the casualty operations functions to include casualty reporting, notification, assistance, and fatal accident family brief program. The regulation states, in pertinent part, that the DD Form 1300 provides an official record of death or missing status of persons. It also defines KIA as a casualty category applicable to a hostile casualty, other than the victim of a terrorist activity, who is killed outright or who dies as a result of wounds or other injuries before reaching a medical treatment facility.
DISCUSSION AND CONCLUSIONS:
The evidence of record indicates the FSM was killed when his helicopter accidentally strayed over the North Korean territory and was shot down by members of the North Korean Armed Forces on 14 July 1977. Therefore, since his death was not caused during battle, the DD Form 1300 is correct as constituted.
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) AR20140018036
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