ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS IN THE CASE OF: BOARD DATE: 8 August 2019 DOCKET NUMBER: AR20180011031 APPLICANT REQUESTS: award of the Purple Heart. He also requests a personal appearance before the Board. APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: * DD Form 149 (Application for Correction of Military Record), dated 4 June 2018 * List of Enclosures * Letter from Applicant to Army Review Board Agency (ARBA), Mr. X____, dated 4 June 2018 * Letter from ARBA, dated 30 May 2018 * Letter from U.S. Army Human Resources Command (HRC), Awards and Decorations Branch, dated 16 May 2018 * Letter from Applicant to ARBA, dated 4 June 2018 * Standard Form (SF) 600 (Chronological Record of Medical Care) * Picture of Applicant with Helicopter Before/After Accident * DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge) * DD Form 215 (Correction to DD Form 214, Certificate of Release or Discharge from Active Duty) * DD Form 149, dated 12 April 2018 * Self-Authored Letter, dated 9 April 2018 * Veterans Service Organizations Information Sheet FACTS: 1. The applicant did not file within the three year time frame provided in Title 10, United States Code, section 1552 (b); however, the Army Board for Correction of Military Records (ABCMR) conducted a substantive review of this case and determined it is in the interest of justice to excuse the applicant's failure to timely file. 2. The applicant states he requests to be awarded the Purple Heart for injuries sustained on 16 March 1969, when the helicopter he was flying crash landed as a direct result of enemy fire during a combat mission in Vietnam. 1. a. He was deployed to Vietnam with the 163rd Aviation Company, 101st Airborne Division, when the helicopter he was flying came under enemy fire causing him to lose control of his aircraft. As a result, he and the helicopter crash landed. He was then helped by friendly civilians who arranged for him to be transported to the Army Hospital in Phu Bai, Vietnam, where he was hospitalized and received treatment for broken bones and severe lacerations to both legs. Since his original DD Form 149 was administratively closed, he is offering additional comments and details relating to his injuries in order to further support his appeal to overturn the denial for the Purple Heart he should have received 50 years ago. b. He understands he is entitled to legal representation to assist with the appeal process. However, he refused that option currently because he does not want to be awarded the Purple Heart because he obtained a good lawyer who is familiar with the appeal process. He acknowledges this is a late submission and, in absence of absolute proof, he request consideration from ARBA to approve his appeal based on the comments in his letters, on his declaration of the facts as described by him, and, most importantly, on his integrity and reputation as a Chief Warrant Officer and decorated combat veteran. 3. The applicant provides: a. A letter from the HRC, Awards and Decoration Branch, dated 16 May 2018. This letter was in response to his request to the National Personnel Records Center. It states injuries accidentally incurred during combat or in a combat zone do not entitle individuals to an award of the Purple Heart. The statutory and regulatory criteria for the Purple Heart require it to be authorized to Soldiers who are wounded as a result of enemy action. Further, they verified his entitlement to the Bronze Star Medal. A DD Form 215 was issued to reflect his entitlement to the award. b. A letter to ARBA, dated 4 June 2018, regarding the denial to approve his request for the Purple Heart. It states he should have been more proactive in 1969, but as a youngster himself and with a young wife and five month old son waiting at home, he was happy to have survived his helicopter crash and was not concerned about an award. (1) As a helicopter pilot in Vietnam, he believes every mission he flew was exposed to enemy fire. Vietnam was the first time they fought without formal front lines and, as a result, they encountered the enemy from seemingly all locations and all directions. His mission the morning of 16 March 1969 was reconnaissance over a known enemy location in heavily wooded forest terrain looking to identify the best possible location to construct a new landing zone. After several passes over the location, he was headed back to base camp when he heard unusual sounds behind his head. He immediately lost control of his helicopter and crash landed all in a matter of seconds. The last thing he remembers was seeing the air speed indicator reach over 100 mph before the initial thud of hitting the ground caused him to black out. As visible (1) by the photo attached with his letter, there was very little left of his helicopter after tumbling across the ground. (2) Not only does he fully believe his accident was a direct result of enemy fire but, the pilot who completed his mission after his crash also came under enemy fire from the same, exact location. Though his helicopter was damaged, he did not lose control and received the Distinguished Flying Cross for his evasive maneuvers. It's no secret, flying an observation helicopter in Vietnam was a dangerous assignment and it was often difficult and, without a crew chief on board, sometimes even impossible to know when targeted directly by enemy fire unless one was hit and did not crash. (3) When he met with the Purple Heart Representative at Veteran's Hospital in Long Beach, CA, he helped him prepare and submit his request in April. At the same time, he suggested he contact his Congressional Representative to share his story and his situation in hopes of receiving her formal support. When he contacted her office, however, he unfortunately learned she was involved in her re-election campaign and not available to meet with him personally. Honestly, however, he does not know what helpful support she might provide to this appeal process because he could only share with her the same information he shared with the Board directly. If, however, the Board finds this support helpful in the approval decision, he will meet with his local Representative. (4) He does not know the background of ARBA, but he hopes each of the members has a military background, some combat experience, can appreciate the plight of all Army helicopter pilots, and with this formal appeal, him in particular. He knows there are stories of abuse, where Purple Hearts have been received by individuals who were not entitled to this distinguished award. He is blessed beyond his expectations and he hopes to receive this award as part of the legacy he leaves for his wife, kids, and grandkids. c. SF 600 with entry dated 11 April 1969 which states “A/c accident 16 March 1969 and sustained multiple abrasion and contusions left face, right elbow and broken left 3rd prox phalynx of hand. Doing well now. Cleared for flying.” d. A photo of applicant with helicopter before accident and of the helicopter after the accident occurred. e. DD Form 215, where HRC corrected his DD 214 with the addition of a Bronze Star Medal. f. In a self-authored letter dated 9 April 2018, he states after the crash and hospitalization, he returned to the company where he spent the next several weeks being treated for his injuries. During that time he discussed with his company commander, who, later determined there was not sufficient evidence to confirm the crash was a result of enemy fire and could not recommend him for the Purple Heart. In a. 2015, he was diagnosed with cancer and began working to get his accounts in order. This is the motivation that caused him to pursue the Purple Heart which he has always felt he deserved. 4. A review of the applicant’s service record shows: a. On 3 October 1967, he was inducted in the Army of the United States. He was honorably discharged on 7 November 1968 to accept appointment as a warrant officer. b. On 18 November 1968, he was appointed a Reserve Warrant Officer of the Army, with concurrent call to active duty. c. DD Form 66 (Officer Qualification Record), item 17 (Foreign Service), shows he served in Vietnam from 6 February 1969 to 5 February 1970, through three campaigns (Counter Offensive Phase VI, TET 69/Counter Offensive, and Vietnam Summer-Fall 1969). He was assigned to 163rd Aviation Company, 101st Airborne Division. d. The facts and circumstances surrounding the mission assigned to the applicant on 16 March 1969 are not available for the Board to review. No documentation nor medical records exist in the applicant’s service records for that day. e. On 11 April 1969, the applicant was seen by medical professionals. An entry added to SF 600 on 11 April 1969 states “A/c accident 16 March 1969 and sustained multiple abrasions and contusions left face, right elbow and broken left 3rd prox phalynx of hand. Doing well now. Cleared for flying.” f. On 14 December 1970, an separation examination was conducted and recorded on SF 89 (Report of Medical History). In item 17 the applicant states “excellent” in regards to his present health in his own words. In item 20 the applicant lists a history of broken bones. The physician annotates the applicant had a “broken left wrist in 1959 and broken finger – left middle finger in Vietnam” in the remarks in reference to item 20. In item 33, the applicant states “no” when asked if he ever had any illness or injury other than those already noted. In item 34, the applicant states “no” when asked if he consulted or been treated by clinics, physicians, healers, or other practitioners within the past five years. g. On 6 January 1971, he was honorably released from active duty and transferred to the U.S. Army Reserve Control Group. His DD Form 214 shows he completed 2 years, 1 month, and 19 days of active service. It also shows he was awarded or authorized: * National Defense Service Medal * Army Aviation Badge * Good Conduct Medal * Vietnam Service Medal * * Air Medal * Army Commendation Medal * Vietnam Campaign Medal with 60 Device h. On 27 July 2018, the Army Review Boards Agency Case Management Division administratively closed without action and without prejudice his application wherein he requested the award of the Purple Heart. By regulation, the Board will not consider an application until the applicant has exhausted all available administrative remedies to correct the alleged error or injustice. There was no evidence the applicant submitted a request to the Awards and Decorations Branch, AHRC. The applicant submitted a letter from HRC, dated 16 May 2018, with this current request. 5. There is no evidence found in the applicant's military records indicating he was injured or wounded as a result of hostile action. Nothing in several typical sources shows he was wounded or injured as a result of hostile action. a. His medical records, which would have listed any injuries and treatment, are not available for review with this case. The available medical records consist of a separation physical wherein he listed a “broken finger – left middle finger in Vietnam” He replied “no” when asked if he ever had any illness or injury other than those already noted and “no” when asked if he consulted or been treated by clinics, physicians, healers, or other practitioners within the past five years. However, an SF 600 is available for review and lists some injuries consistent with his claim. b. His personnel records do not contain an official Army message or a Western Union telegram notifying his next of kin of an injury or wound sustained in action. This was the proper notification procedure for injuries at the time. c. His name is not shown on The Adjutant General's Office Casualty Division Casualty Reference Name Listing, a list of Vietnam era casualties commonly used to verify entitlement to award of the Purple Heart. d. A review of the Awards and Decorations Computer Assisted Retrieval System maintained by the AHRC, 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. 6. By regulation (AR 600-8-22), the Purple Heart differs from all other decorations in that an individual is not "recommended" for the decoration; rather he or she is entitled to it upon meeting specific criteria. When contemplating an award of this decoration, the key issue that commanders must take into consideration is the degree to which the enemy caused the injury. The fact that the applicant was participating in direct or indirect combat operations is a necessary prerequisite, but is not the sole justification for the award. The criteria for an award of the Purple Heart requires the submission of substantiating evidence to verify that: 1. * the injury/wound was the result of hostile action * the injury/wound must have required treatment by medical personnel * the medical treatment must have been made a matter of official record 7. By regulation, injuries or wounds which clearly do not justify award of the Purple Heart include accidental wounding not related to or caused by enemy action. 8. A DD Form 173 (Joint Message Form) from the Chief, Casualty Division, Washington, DC, to the Commanding General, U.S. Army Vietnam, dated 20 June 1968, provided additional guidance in the determination of hostile action casualties in addition to that provided in Army Regulation 600-10. Paragraph 3 of the DD Form 173 stated, "The rule that has been applied in helicopter or aircraft accidents is that the cause of the accident must be directly attributable to action by the enemy rather than merely the presence of the enemy." The message goes on to state that enemy fire on the aircraft must have caused or directly contributed to the accident. The fact that an aircraft is on or returning from a combat mission when an accident occurs is not sufficient, alone, to classify as hostile. 9. By regulation, applicants do not have a right to a hearing before the ABCMR. The Director or the ABCMR may grant a formal hearing whenever justice requires. BOARD DISCUSSION: After reviewing the application, all supporting documents to include the applicant's statement, the Board determined that relief was not warranted. Based upon the documentary evidence provided by the applicant and found within the military service record, the Board concluded that there was insufficient evidence to show that the applicant’s injuries were directly attributable to action by the enemy. For that reason, the Board recommended denying the applicant’s request. The applicant's request for a personal appearance hearing was carefully considered. In this case, the evidence of record was sufficient to render a fair and equitable decision. As a result, a personal appearance hearing is not necessary to serve the interest of equity and justice in this case. BOARD VOTE: Mbr 1 Mbr 2 Mbr 3 : : : 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 for correction of the records of the individual concerned. 9/4/2019 X CHAIRPERSON Signed by: 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. REFERENCES: 1. Title 10, United States Code, section 1552(b), provides that applications for correction of military records must be filed within three 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 three-year statute of limitations if the ABCMR determines it would be in the interest of justice to do so. 2. Army Regulation (AR) 40-66 (Medical Record Administration and Healthcare Documentation), currently in effect, prescribes policies for preparing and using medical reports and records for Soldiers receiving medical treatment or evaluation in an Army military treatment facility. Paragraph 3-12 (Recording Injuries) states the same details will be given and the same terms used when both battle and non-battle injuries are recorded. To be complete, record on DA Form 3647 and the recording of an injury must include the details of the nature of the injury, the part or parts of the body affected, the external causative agent, how the injury occurred, whether the injury was self-inflicted, the location where the person was injured, and the date of the injury. 3. Army Regulation 600-8-22 (Military Awards), paragraph 2-8 (Purple Heart), states the Purple Heart is awarded to any member of an Armed Force of the United States who has been wounded, killed, or who has died or may hereafter die of wounds received under any action again an enemy of the United States; any action with an opposing armed force of a foreign counter in which the Armed Forces of the United States are or have been engaged, or as the result of an act of any such enemy or opposing Armed Forces. To qualify for award of the Purple Heart the wound must have been of such severity that it required treatment, not merely examination, by a medical officer. A wound is defined as an injury to any part of the body from an outside force or agent. A physical lesion is not required. 4. A DD Form 173 (Joint Message Form) from the Chief, Casualty Division, Washington, DC, to the Commanding General, U.S. Army Vietnam, dated 20 June 1968, provided additional guidance in the determination of hostile action casualties in addition to that provided in Army Regulation 600-10. Paragraph 3 of the DD Form 173 stated, "The rule that has been applied in helicopter or aircraft accidents is that the cause of the accident must be directly attributable to action by the enemy rather than merely the presence of the enemy." The message goes on to state that enemy fire on the aircraft must have caused or directly contributed to the accident. The fact that an aircraft is on or returning from a combat mission when an accident occurs is not sufficient, alone, to classify as hostile. 5. AR 15-185 (ABCMR) prescribes the policies and procedures for correction of military records by the Secretary of the Army, acting through the ABCMR. The ABCMR begins its consideration of each case with the presumption of administrative regularity, which is that what the Army did was correct. 1. a. The ABCMR is not an investigative body and decides cases based on the evidence that is presented in the military records provided and the independent evidence submitted with the application. The applicant has the burden of proving an error or injustice by a preponderance of the evidence. b. The ABCMR may, in its discretion, hold a hearing or request additional evidence or opinions. Additionally, it states in paragraph 2-11 that applicants do not have a right to a hearing before the ABCMR. The Director or the ABCMR may grant a formal hearing whenever justice requires.