BOARD DATE: 16 January 2018 DOCKET NUMBER: AR20170002399 BOARD VOTE: ________ ________ ________ GRANT FULL RELIEF ________ ________ ________ GRANT PARTIAL RELIEF ________ ________ ________ GRANT FORMAL HEARING __x______ __x______ __x__ DENY APPLICATION 2 Enclosures 1. Board Determination/Recommendation 2. Evidence and Consideration BOARD DATE: 16 January 2018 DOCKET NUMBER: AR20170002399 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 Numbers AR1999018553 and AR2000042803, on 5 August 1999 and 18 January 2001. ___________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. BOARD DATE: 16 January 2018 DOCKET NUMBER: AR20170002399 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 the previous Army Board for Correction of Military Records (ABCMR) decision as promulgated in Docket Numbers AR1999018553 and AR2000042803, on 5 August 1999 and 18 January 2001, respectively. Specifically, he requests award of the Purple Heart. 2. The applicant pleads with the Board to give him some time and consideration. He served his country to his utmost and fought for 31 months as a helicopter gunship pilot in the Republic of Vietnam. He won awards from the Silver Star on down but never received his Purple Heart due to the Tet Offensive. 3. In a previously addressed letter to the President of the United States, dated 7 April 2014, the applicant requested and/or noted: a. Whoever reads this first, please take the time to read all enclosed. It means nothing if you [the Board] don't have all the facts. The ABCMR spends an average of four minutes per review. This is not much to give back to a pilot who was shot down twice in two months, won the Silver Star, and was wounded. b. He had all but given up hope of receiving his just due Purple Heart until he saw the articles on the reconsideration and awarding of the Medal of Honor to 24 men. He appealed directly to the ABCMR, two Congressmen and Senator R_ C_ of Pennsylvania. The elected officials sent a standard cover letter along with his documentation. The elected officials did not push his request and the ABCMR did not read his documentation. Their rules are once reviewed, not reconsidered. This is not fair. c. He wonders if the infantrymen he was protecting as they retreated, while dragging their wounded and dead, would grant him the Purple Heart. He attacked a North Vietnamese Regiment with a single gunship. During that action, he took more enemy anti-aircraft fire than any time during his three tours as an aircraft commander of a helicopter gunship in the Republic of Vietnam. He was hit with shrapnel in his right knee and thigh. This action took place right outside Hue City during the 1968 Tet Offensive, when he was assigned to Company D, 229th Assault Helicopter Battalion, 1st Air Cavalry Division (Airmobile). He would not seek compensation or accept accolades if the award was granted. d. There was a second incident, in which he was shot down on 15 December 1967, while shooting for a long range reconnaissance patrol (LRRP) team under enemy fire while being picked up by another helicopter. This incident resulted in him sustaining a back injury. The odd thing about this is that it is recorded on his Department of Veterans Affairs (VA) Form 5299-5295 (Rating Decision) as Lumbarization, S-1 service-connected, Vietnam era, incurred-combat. He received a 20 percent (%) disability for that injury but did not receive the Purple Heart. e. Throughout his 24 years of military service, whenever he was asked, he went into whatever hell they sent him. However, when it comes to the Army showing reconsideration, it is not an option. He was awarded the Silver Star, the Distinguished Flying Cross, three Bronze Star Medals, 53 awards of the Air Medal, the Army Commendation Medal, the Vietnam Campaign Medal with seven bronze service stars, the Republic of Vietnam Gallantry Cross, and many more "I've been there awards." f. All the men who testified for him are highly decorated helicopter pilots of the Vietnam War. "Fear is a reaction…Courage is a decision." He is old, sick and tired, and a 100% disabled veteran, he asks that the Board do what is right. Everything attached to the letter will have a note on it explaining its significance to his appeal include witness assessments. 4. The applicant provides a copy of: * Aviation Safety Summary 15 December – 21 December 1967 * General Orders Number 2512, issued by Headquarters, 1st Cavalry Division (Airmobile) on 22 April 1968 * a letter of congratulations from Major General (MG) Pxxxxx, dated 25 September 1970 * a Standard Form (SF) 93 (Report of Medical History), dated 8 November 1974 * DD Form 214 (Report of Separation from Active Duty), for the period ending 2 December 1974 * NGB Form 22 (Report of Separation and Record of Service), for the period ending 1 January 1989 * a letter of thanks from Brigadier General (BG) Sxxxx, dated 15 March 1993 * Article "Tet: First In…" American Heritage – July/August 1993 * DD Form 215 (Correction to DD Form 214), for the period ending 2 December 1974 * witness statements, undated and dated 18 March 2001, 9 April 2002, and 25 January 2010 * National Personnel Records Center (NPRC) letter, dated 26 January 2004 * U.S. Army Human Resources Command (HRC) letter, dated 3 February 2004 * Army Review Boards Agency (ARBA) letter, dated 19 March 2004 * Yahoo email, dated 27 December 2009 to a third party * a self-authored statement, dated 13 December 2010 * letter from his Congressman, dated 3 May 2011 * his Department of Veterans Affairs (VA) Rating Decision, dated 14 September 2011 * a letter from his U.S. Senator, dated 26 April 2013 * an email from the Office of the Chief Legislative Liaison (OCLL), dated 20 November 2013 * an excerpt of Field Manual 3-06 (Urban Operations), chapter 7 * an article "Heroes receive their due with Medal of Honor" 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 Dockets Number AR1999018553 and AR2000042803, on 5 August 1999 and 18 January 2001, respectively. 2. In Docket Number AR1999018553 on 5 August 1999, the applicant was denied his request for the Purple Heart for injuries received on 15 December 1967. In Docket Number AR2000042803 on 18 January 2001, he was denied his request for the Purple Heart for injuries received on 12 February 1968. The applicant provides a self-authored statement and witness statements that constitutes a new argument and new evidence that was not previously considered by the Board. This new argument and evidence now warrants consideration. 3. The applicant enlisted in Regular Army on 2 February 1966. He was honorably discharged on 13 March 1967 and was appointed as a Reserve warrant officer of the Army on 14 March 1967. 4. The applicant served as a helicopter pilot in the Republic of Vietnam during the period 4 April 1967 through 30 March 1968. 5. General Orders Number 2512, issued by Headquarters, 1st Calvary Division (Airmobile) on 22 April 1968, awarded the applicant the Silver Star for gallantry in action on 12 February 1968, while engaged in military operations involving conflict with an armed hostile force in the Republic of Vietnam. The citation notes that his aircraft received numerous hits; however, there is no mention of him being wounded as he continued attacks against hostile emplacements. 6. The applicant was honorably discharged on 20 May 1969 for the purpose of accepting an appointment as a commissioned officer. His DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge) does not show he was awarded the Purple Heart. 7. The applicant was appointed as a Reserve commissioned officer of the Army on 21 May 1969. He began serving a period of active duty that started that same day. He was honorably released from active duty on 2 December 1974. His DD Form 214 does not show he was awarded the Purple Heart. 8. The applicant's available record does not contain evidence that shows he received leg or back wounds, nor any evidence that shows he was treated for wounds received on 15 December 1967 or 12 February 1968. 9. The applicant's name is not listed on the Vietnam Casualty Roster. 10. The applicant provides: a. A Safety Summary covering the period 15 December through 21 December 1967, which shows the applicant's helicopter was on a combat assault when the aircrafts' commander heard a loud noise followed by loss of power. The aircraft was auto-rotated to a sandbar, the engine flamed out on touch-down. There was no damage to the aircraft and they suspected severe compressor stalls. (1) Page 2 of the safety summary shows the applicant was the pilot of the aircraft. (2) The applicant wrote on the safety summary, upon this application that his aircraft was hit in the engine and it immediately quit. Even though there was no damage, other than the engine, the touchdown was a little hard and he injured his back. b. An SF 600, dated 8 November 1974, which shows he listed he had recurrent back pain and a painful right knee and thigh. c. Four witness statements, wherein the authors contend the applicant was injured when his helicopters were shot down by enemy fire on both 15 December 1967 and 12 February 1968. One witness alleges the applicant was barred from going to the aid station, which prevented him from having injuries added to his medical record. d. A third party's email in which he stated he received his Combat Infantryman Badge from the ABCMR without having orders. e. A statement from the applicant in which he provides the reason he did not report his injuries to medical personnel following the 12 February 1968 incident. While his unit was losing aircraft while engaging the enemy, his battalion commander told him to get back to the gun company, he was needed in the air as soon as possible. He was told to stay away from the aid station. The battalion commander said, "I don't care how bad you get hurt, don't go to the aid station! Out of sight, out of mind; get it?" He said "Yes, sir." f. His VA rating decision, which shows he was diagnosed with lumbarization and it was determined to be service-connected, Vietnam era, incurred-combat. The medical dictionary defines lumbarization as a congenital anomaly (present in individuals since birth) of the lumbosacral junction of the spine where the first sacral vertebra is not fused to the rest of the sacrum. REFERENCES: Army Regulation 600-8-22 (Military Awards) provides: a. The Purple Heart is awarded for a wound or wounds sustained in action against an enemy or as a result of hostile action. Substantiating evidence must be provided that verifies the wound resulted from hostile action, required treatment by medical personnel, and that treatment was made a matter of official record. (1) A wound is defined as an injury to any part of the body from an outside force or agent sustained under one or more of the conditions listed above. A physical lesion is not required. However, the wound for which the award is made must have required treatment, not merely examination, by a medical officer. Additionally, treatment of the wound will be documented in the Service member’s medical and/or health record. Award of the Purple Heart may be made for wounds treated by a medical professional other than a medical officer provided a medical officer includes a statement in the Service member’s medical record that the extent of the wounds was such that they would have required treatment by a medical officer if one had been available to treat them. (2) When contemplating an award of the Purple Heart, the key issue that commanders must take into consideration is the degree to which the enemy caused the injury. The fact that the proposed recipient was participating in direct or indirect combat operations is a necessary prerequisite, but is not sole justification for award. (3) Examples of enemy-related injuries which clearly justify award of the Purple Heart include: * injuries caused by enemy bullet, shrapnel, or other projectile created by enemy action * injury caused by enemy-placed trap or mine * injury caused by enemy-related chemical, biological, or nuclear agent * injury caused by vehicle or aircraft accident resulting from enemy fire * concussion injuries caused as a result of enemy-generated explosions resulting in a mild traumatic brain injury or concussion severe enough to cause either loss of consciousness or restriction from full duty due to persistent signs, symptoms, or clinical finding, or impaired brain function for a period greater than 48 hours from the time of the concussive incident (4) Examples of injuries or wounds which clearly do not justify award of the Purple Heart include: * accidental wounding by explosive, aircraft, or vehicular not related to or caused by enemy action * abrasions and lacerations (unless of a severity to be incapacitating) * bruises (unless caused by direct impact of the enemy weapon and severe enough to require treatment by a medical officer) * soft tissue injuries (for example, ligament, tendon, or muscle strains, sprains, and so forth) * post-traumatic stress disorders, hearing loss and tinnitus, mild traumatic brain injury or concussions that do not either result in loss of consciousness or restriction from full duty for a period greater than 48 hours due to persistent signs, symptoms, or physical finding of impaired brain function (5) In a case such as an individual injured while making a parachute landing from an aircraft that had been brought down by enemy fire; or, an individual injured as a result of a vehicle accident caused by enemy fire, the decision will be made in favor of the individual and the award will be made. DISCUSSION: 1. The applicant requests award of the Purple Heart, for injuries received after being shot down by enemy fire on 15 December 1967 and 12 February 1968. He contends he was the pilot of aircraft that were shot by enemy fire, causing him to have hard landings that caused injuries to his right knee and back. 2. A safety summary shows an aircraft he piloted had no damage; however, it had a loss of power and the engine flamed out upon landing on 15 December 1967. The safety summary has no entry of enemy contact; however, witness statements contend enemy fire damaged the aircraft. 3. The applicant was awarded the Silver Star for gallantry on 12 February 1968. The Silver Star's citation displays his piloting heroism while engaging the enemy; however, the award narrative does not confirm he received a combat injury/wound. 4. The applicant contends he did not go to the aid station to receive medical care on 12 February 1968, because he was ordered not to by his battalion commander. 5. There is no evidence within the applicant's record that shows he received medical treatment after receiving any wounds or injuries on the dates in question. 6. The applicant's record contains medical evidence that shows he reported to medical examiners in 1974 that he had right knee and back pain. However, his military record has insufficient medical evidence to show that those injuries were caused by the enemy. 7. The applicant provided evidence of a back condition that was diagnosed by the VA. However, service-connected ratings for disabilities from the VA do not alone confirm as evidence the cause of his back condition was directly associated with the aircraft accidents on 15 December 1967 and 12 February 1968. 8. The governing Army regulation provides that in order to be awarded the Purple Heart, a wound must be as a result of a hostile action, the wound must have required treatment by medical personnel, and the medical treatment must have been made a matter of official record. 9. The applicant provided four witness statements wherein the authors of the statements acknowledge he was engaging enemy forces on the dates in question. However, the statements do not provide eyewitness accounts of the applicant being wounded/injured by enemy forces. //NOTHING FOLLOWS// ABCMR Record of Proceedings AR20150000953 Enclosure 1 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS ABCMR Record of Proceedings (cont) AR20150014846 2 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 1 ABCMR Record of Proceedings (cont) AR20170002399 8 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 2