BOARD DATE:	  10 September 2015

		DOCKET NUMBER:  AR20140019081


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, through his Member of Congress, requests reconsideration of a portion of the previous Army Board for Correction of Military Records (ABCMR) decision, as promulgated in Docket Number AC77-04978 on 22 February 1978.  Specifically, he requests award of the Purple Heart for injuries he suffered during his service in the Republic of Vietnam.

2.  The applicant states:

   a.  He was a pilot of a U.S. Army CH-47 Chinook helicopter on 10 February 1969, flying in the northern part of the Republic of South Vietnam, just south of the Demilitarized Zone separating South Vietnam from North Vietnam.
   
   b.  While landing on a mountaintop to resupply U.S. Marines with ammunition, his helicopter and crew were shot down by enemy ground fire.  They crashed and burned on the side of the mountain.  Three Marine passengers were killed in the crash and all of the surviving helicopter crewmembers suffered varying degrees of injuries.  His back was broken and his jaw was broken in four places.

   c.  A team of 2 or 3 officers investigated the crash.  They interviewed him and the other pilot, and he told them he thought they had been shot down but had no evidence to prove or disprove it.  The investigating officers never interviewed witnesses on the firebase where they were attempting to land.  The investigating officers ruled the crash was caused by mechanical failure, and since the aircraft was totally destroyed in the crash and fire, there was no physical evidence left to determine the cause.
   d.  The crew chief was awarded the Purple Heart approximately 30 days later for injuries he sustained in the crash.  None of the rest of the crewmembers (or the 3 dead Marine passengers) were awarded the Purple Heart.

   e.  He was recently contacted, via the internet, by three eyewitnesses who were on the firebase, heard the shots fired at them, and saw puffs of smoke from the engine that was hit.  All three have provided statements detailing what they saw and heard.

   f.  The ABCMR has refused to review this new evidence because it was not submitted in a timely manner almost 40 years ago.  However, at that time, he had no idea these witnesses existed.

   g.  Based on this new evidence, and the fact that one of the crew has already been awarded the Purple Heart for injuries he received in the crash, the remaining crewmembers should be awarded the Purple Heart, to include the Marines who were killed when the helicopter was shot down.

3.  The applicant provides:

* a 1-page statement
* a letter of support from Major General (MG) AV, U.S. Army (Retired), dated 4 September 2014
* a letter of support from MG ST, Deputy Commanding General, U.S. Army North (Fifth Army), Fort Sam Houston, Texas, dated 22 August 2014
* a letter of support from Lieutenant Colonel (LTC) CR, U.S. Army (Retired), President, Chapter XV (The Alamo Chapter), Special Forces Association, dated 26 July 2014
* letters from the ABCMR, addressed to the applicant, dated 17 June 2014 and 6 December 2012
* a letter from the applicant, addressed to the ABCMR, dated 24 September 2012
* DD Form 149 (Application for Correction of Military Records Under the Provisions of Title 10, U.S. Code, Section 1552)
* a 7-page Affidavit, provided by the applicant, concerning the shoot down of U.S. Army Chinook 67-18501 on 10 February 1969 at Firebase Erskine, Republic of South Vietnam, with accompanying photographs and newspaper articles
* DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge), for the period ending 8 January 1970
* a sworn statement from Mr. WJU, dated 29 February 2012
* a sworn statement from Mr. JLS, dated 29 February 2012
* a sworn Affidavit from LTC CFN, U.S. Marine Corps (Retired), dated 
11 March 2012
* Permanent Order 11-1, issued by the U.S. Total Army Personnel Command on 11 January 2000, which awarded the Purple Heart to another Soldier (Mr. (then Specialist Four (SP4)) CVA) for wounds he received on 10 February 1969
* a letter from the Defense Finance and Accounting Service, addressed to Mr. CVA, dated 19 January 2000
* a DD Form 215 (Correction to DD Form 214, Certificate of Release or Discharge from Active Duty), completed for Mr. CVA on 15 February 2000
* ABCMR Docket Number AR1999021472, pertaining to Mr. CVA, dated     4 November 1999 (another Soldier)

CONSIDERATION OF EVIDENCE:

1.  Incorporated herein by reference are military records that were summarized in the previous consideration of the applicant's case by the ABCMR in Docket Number AC77-04978 on 22 February 1978.

2.  The applicant provides three sworn statements, third-party letters of support, and Purple Heart award documentation pertaining to Mr. CVA as new evidence.  The Board did not previously consider these documents; therefore, although this new evidence was not submitted within 1 year of the original consideration of this case as required by regulation it warrants consideration by the Board as an exception to policy.

3.  The applicant was appointed as a Reserve warrant officer of the Army, in the rank of warrant officer one (WO1), on 9 April 1968.  He was concurrently appointed in the Army of the United States (AUS), in the rank of WO1, on          21 August 1968 (with a date of rank of 9 April 1968).

4.  Upon the completion of his initial warrant officer qualification training and flight training, he was awarded various rotary wing military occupational specialties within the Army Aviation Corps.

5.  Item 17 (Foreign Service) of his DA Form 66 (Officer Qualification Record) shows he served in the Republic of Vietnam on two occasions:

* from on or about 30 December 1968 through 5 March 1969
* from on or about 5 July 1969 through 4 January 1970

6.  In both instances, he was assigned to Company C, 159th Assault Support Helicopter Battalion, 101st Airborne Division (Airmobile).  
7.  The applicant's record contains numerous documents that show he was involved in an aviation accident on 10 February 1969, in which the CH-47 Chinook helicopter he co-piloted crashed while he and fellow crewmembers were conducting resupply operations at Firebase Erskine.  As a result of this crash, he suffered numerous fractures of his spinal vertebrae and upper and lower mandibles (jaw). 

8.  The circumstances surrounding the aviation accident on 10 February 1969 were investigated; however, the contents of the final investigative report are not available for review in this case.

9.  He was promoted to the rank of chief warrant officer two (CW2) in the AUS on 9 April 1969.

10.  Following medical evacuation to the U.S. and extensive convalescence and rehabilitation, he redeployed to the Republic of Vietnam, on or about 5 July 1969, for an additional tour with Company C, 159th Assault Support Helicopter Battalion, 101st Airborne Division (Airmobile).   

11.  He was honorably released from active duty on 8 January 1970 and transferred to the U.S. Army Reserve (USAR) Control Group (Annual Training).  His DD Form 214 shows he was awarded or authorized the:

* Air Medal
* National Defense Service Medal
* Vietnam Service Medal
* Republic of Vietnam Campaign Medal with Device (1960)
* Army Aviation Badge

12.  He was subsequently appointed as a CW2 in the USAR, effective 9 January 1970.  

13.  His available record is void of any orders that show he was previously awarded the Purple Heart and his name is not listed on the Vietnam casualty roster.  

14.  A review of the Awards and Decorations Computer Assisted Retrieval System, an index of general orders issued during the Vietnam era between   1965 and 1973 maintained by the U.S. Army Human Resources Command, failed to reveal any orders that show he was awarded the Purple Heart.


15.  The applicant petitioned the ABCMR on 25 March 1977, to request award of the Bronze Star Medal, Purple Heart, and 14 additional awards of the Air Medal, which he contended he earned during two combat tours in South Vietnam.  In consideration of his request, the ABCMR solicited an advisory opinion on 6 September 1977 from the Chief, Military Awards Branch, U.S. Army Military Personnel Center.
   
a.  By letter dated 30 September 1977, the Chief, Military Awards Branch solicited from the applicant documentation that showed the applicant was recommended for, or awarded, additional awards of the Air Medal (Third through Sixteenth Awards).  He also informed the applicant that information had been sought from the U.S. Army Agency for Aviation Safety (now known as the U.S. Army Combat Readiness Center) concerning the helicopter crash that occurred on 10 February 1969.  
   
   b.  By endorsement dated 17 October 1977, the Executive Officer of the U.S. Army Agency for Aviation Safety responded to the request for information by informing the Military Awards Branch that a search of the agency's files disclosed the accident on 10 February 1969 was caused by a combination of materiel failure and crew error; therefore, it was classified as non-hostile.   

	c.  By endorsement dated 26 October 1977, the Chief, Military Awards Branch responded to the ABCMR's request for review and input.  

* he did not address the applicant's entitlement to the Bronze Star Medal
* he cited the response from the U.S. Army Agency for Aviation Safety as the basis for his recommendation to disapprove the applicant's request for award of the Purple Heart 
* however, he did not provide a recommendation with respect to the applicant's request for additional awards of the Air Medal

16.  The ABCMR considered the applicant's petition under Docket Number AC77-04978 on 22 February 1978; however, it denied his request for relief.  

   a.  In denying his request, the Board unanimously determined that there was no material error or injustice in his failure to be awarded the Bronze Star Medal, the Purple Heart, or 14 additional awards of the Air Medal.  
   
   b.  With respect to the Purple Heart, the Board noted that records indicated the helicopter crash on 10 February 1969 was not caused by hostile action; therefore, wounds received therein do not qualify him for award of the Purple Heart.

17.  The applicant provides:

   a.  A 10-page affidavit, wherein he recounts the circumstances leading up, and including, the aviation accident that occurred on 10 February 1969, his treatment for injuries that resulted from that accident, and details of eyewitness recollections provided in statements attached to his request.
   
   b.  Three sworn statements from:
   
   (1)  Mr. WJU, who states he served with Fox Battery, 2nd Battalion, 
12th Marine Regiment, 3rd Marine Division, from August 1968 through September 1969.  On 10 February 1969, while at Firebase Erskine, he was directing a chopper with hand signals while another Marine was on the radio with the pilots.  As the chopper made another pass, the pilots were facing him.  He heard two shots and saw two puffs of smoke as the shots hit the left side of the chopper.  The pilot lost power, they dropped the sling with its 105 millimeter (mm) artillery rounds, and went over the side of the mountain and crashed and burned. Other Marines also heard the shots – some heard two and some heard three.  The men who were hurt and the men who died should get the Purple Heart.
   
   	(2)  Mr. JLS, who states in 1968 and 1969 he was serving as a Navy Corpsman with Fox Battery, 2nd Battalion, 12th Marine Regiment, 3rd Marine Division.  On 10 February 1969, he moved from Firebase Razor to Firebase Erskine.  He had moved to Firebase Erskine on the first chopper that day; they had to circle Erskine for a few minutes because the firebase was receiving mortar rounds.  Late in the afternoon, he was down on the south side of the hill when a chopper, loaded with artillery ammunition and passengers, approached the LZ.  The chopper was almost opposite him when he heard three loud gunshots that came from the valley.  Immediately after that one of the chopper's engines began to smoke, the chopper did a 180-degree turn, and crashed on the side of the hill.  
   	(3)  LTC CFN, U.S. Marine Corps (Retired), who recounts an incident where within a few days following the shoot down of 501 [the applicant's CH-47 Chinook helicopter], on either 12 or 13 February 1969, he observed a group of  3-4 North Vietnamese Army (NVA) attempting to set up a crew-served weapon approximately 100 yards due east of Firebase Erskine.  Some of the Marines began firing on the target with small arms.  He requested to engage the group with 105mm artillery but his request was denied.  He disregarded his orders and proceeded to engage the enemy with artillery despite its relative proximity to friendly forces.  While the target was being engaged, a CH-47 Chinook helicopter was orbiting over their position.  The pilots wanted to assist by "scaring up some NVAs"; however, he advised the pilots to rapidly drop their load and leave.  He believes the enemy intended to shoot down any helicopter that attempted to land and resupply Firebase Erskine. Because of the proximity of the target and its probable purpose, he believes that target they engaged was the location of the enemy that shot down the CH-47 Chinook helicopter on 10 February 1969. 
   
   b.  Three third-party letters of support from:
   
      (1)  MG AV, U.S. Army (Retired), dated 4 September 2014, who fully endorses the applicant's award of the Purple Heart for the heroic actions of the applicant and his crew on a tragic mission in Vietnam.  Personal statements, eyewitnesses, and endorsements to the CH-47 crash show the applicant is deserving of the Purple Heart for his actions on the day of the shoot down.  Many lives were lost but saved by the applicant's proficient piloting, and if it were not for his professional skill under fire, the entire crew would have been lost.
   
      (2)  MG ST, Deputy Commanding General, U.S. Army North (Fifth Army), Fort Sam Houston, Texas, dated 22 August 2014, who fully endorses the applicant's award of the Purple Heart for injuries sustained during combat operations in the Republic of Vietnam.  Documentation and witnesses indicate enemy ground fire caused the crash of the CH-47 Chinook helicopter on           10 February 1969, which wounded the entire crew and killed 3 Marines.  The Crew Chief, Mr. CVA, was awarded the Purple Heart by the ABCMR in 1999.  To date, he is the only Soldier to receive the Purple Heart for this incident, although 7 Soldiers and Marines were wounded or killed.  He believes it is warranted and justified that the ABCMR review the applicant's request and award him the Purple Heart.  It is important to recognize the sacrifice of our Soldiers and ensure each Soldier is given his due.  The applicant served his Nation in a time of war and was injured as a result of hostile actions.  His records should be reviewed and revised to reflect his service and recognize the wounds suffered by awarding him the Purple Heart.   
   
      (3)  LTC CR, U.S. Army (Retired), President, Chapter XV (The Alamo Chapter), Special Forces Association, dated 26 July 2014, who fully endorses the applicant's award of the Purple Heart for injuries sustained during combat operations in the Republic of Vietnam.  
   
   c.  Purple Heart award documentation pertaining to Mr. CVA, including Permanent Order 11-1, issued by the U.S. Total Army Personnel Command on 11 January 2000, which awarded Mr. CVA the Purple Heart for wounds received as a result of hostile action on 10 February 1969.  These orders superseded General Order 102, issued by Headquarters, 101st Airborne Division (Airmobile) on 8 March 1969, which awarded then-SP4 CVA the Purple Heart for wounds received in action on 10 February 1969.
18.  Army Regulation 600-8-22 (Military Awards) provides that the Purple Heart is awarded to a member of the Armed Forces or any civilian national of the United States who, while serving in any capacity with one of the U.S. Armed Services after 5 April 1917, has been wounded or killed or who has died or may die after being wounded in any action against an enemy of the United States.  Substantiating evidence must be provided to verify the wound was the result of hostile action, the wound must have required medical treatment, and the medical treatment must have been made a matter of official record.

19.  Army Regulation 15-185 (ABCMR) prescribes the policies and procedures for correction of military records by the Secretary of the Army, acting through the ABCMR.  The regulation provides that the ABCMR begins its consideration of each case with the presumption of administrative regularity.  The applicant has the burden of proving an error or injustice by a preponderance of the evidence.

DISCUSSION AND CONCLUSIONS:

1.  The criteria for an award of the Purple Heart requires the submission of substantiating evidence that shows the injury/wound resulted from hostile action and required treatment by medical personnel.  The resulting medical treatment must have been made a matter of official record.

2.  The evidence of record shows the applicant was wounded when the helicopter he co-piloted crashed on 10 February 1969, while he and fellow crewmembers were conducting resupply operations at Firebase Erskine.  As a result of this crash, he suffered numerous fractures of his spinal vertebrae and upper and lower mandibles (jaw). 

3.  He provides sufficient medical documentation to confirm he suffered serious wounds on 10 February 1969.  The numerous pieces of medical documentation that detail his injuries are part of his official record.  

4.  He contends a team of two or three officers investigated the crash.  They interviewed him and the other pilot, and he told them he thought they had been shot down but had no evidence to prove or disprove it.  He further contends the investigating officers never interviewed witnesses on the firebase where they were attempting to land.  The investigating officers ruled the crash was caused by mechanical failure, and since the aircraft was totally destroyed in the crash and fire, there was no physical evidence left to determine the cause.

5.  According to the U.S. Army Agency for Aviation Safety, a review of their files disclosed that the accident of 10 February 1969 was caused by a combination of materiel failure and crew error; therefore, it was classified as non-hostile.  
6.  The evidence of record does not support the applicant's contention that his helicopter crash resulted from enemy ground fire.  

7.  In support of his request for relief, and in an effort to refute the findings of materiel failure and crew error, the applicant provides two sworn statements from eyewitnesses who were present when his helicopter crashed, and a third eyewitness statement from a Marine officer who recalls enemy activity in the immediate area but does not specifically state whether or not he was present when the applicant's helicopter crashed.  Both eyewitnesses who were present at the time of the applicant's crash reported hearing enemy gunfire and seeing engine smoke immediately before the helicopter lost power and crashed.

8.  There is a presumption of administrative regularity in the conduct of governmental affairs.  This presumption can be applied to any review unless there is substantial creditable evidence to rebut the presumption.  In this instance, the "presumption of regularity" is applied to the accident investigation on file at the U.S. Army Agency for Aviation Safety, now known as the U.S. Army Combat Readiness Center.  Notwithstanding the eyewitness statements provided by the applicant, and based upon investigative practices in effect at the time, there is no reason to conclude the accident investigators failed to interview either of the two eyewitnesses who submitted sworn statements in this case.  Additionally, it is possible that other eyewitness accounts detailed in the final investigative report differed substantially from the eyewitness accounts provided in this case.

9.  The accident investigation report found that the aviation accident of              10 February 1969 was caused by a combination of materiel failure and crew error; therefore, it was classified as non-hostile.  In the absence of evidence to the contrary, the Board concludes that the investigation into the accident of       10 February 1969 was conducted in accordance with the regulations in effect at that time and was both thorough and unbiased.  

10.  Barring further evidence, such as chain of command statements, or after action reviews that specifically cite enemy actions as the cause of the helicopter crash there is an insufficient basis to overcome the presumption of regularity in this case and an insufficient basis on which to grant award of 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 the overall merits of this case are 
insufficient as a basis to amend the decision of the ABCMR set forth in Docket Number AC77-04978 on 22 February 1978.



      ___________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)                                         AR20090012380



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ABCMR Record of Proceedings (cont)                                         AR20140019081



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