MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:       

	BOARD DATE:           12 August 1999     
	DOCKET NUMBER:   AR1998013195

	I certify that hereinafter is recorded the record of consideration of the Army Board for Correction of Military Records in the case of the above-named individual.  

	Mr. Loren G. Harrell		Director	
	Mr. Kenneth Aucock		Analyst	

  The following members, a quorum, were present:

	Mr. Raymond V. O'Connor, Jr.		Chairperson	
	Mr. James M. Alward		Member	
	Ms. Meta Waller		Member	

	The Board, established pursuant to authority contained in 10 U.S.C. 1552, convened at the call of the Chairperson on the above date.  In accordance with Army Regulation 15-185, the application and the available military records pertinent to the corrective action requested were reviewed to determine whether the application was filed within the time established by statute, and if not, whether it would be in the interest of justice to waive the failure to timely file.

	The applicant requests correction of military records as stated in the application to the Board and as restated herein.

The Board considered the following evidence:

	Exhibit A - Application for correction of military 
                records
	Exhibit B - Military Personnel Records (including
	            advisory opinion, if any)

APPLICANT REQUESTS:  Award of the Purple Heart and the Combat Infantryman Badge.

The applicant states that he was working in the Tran Bang district (in Vietnam) when he remembers hearing an awful explosion and catching on fire and a lieutenant helping him.  He awoke a couple of days later in the 3d Army Hospital, and after being stabilized, he was medically evacuated to the 106th [hospital] in Japan, then to the United States, and released.  He states that he served in combat with infantry units in Vietnam under heavy fire as an artillery RTO (radio telephone operator).    

PURPOSE:  To determine whether the application was submitted within the time limit established by law, and if not, whether it is in the interest of justice to excuse the failure to timely file.

EVIDENCE OF RECORD:  The applicant's military records show:

The applicant was inducted into the Army on 13 September 1967.  He completed training as an artilleryman, MOS 13A10, and in March of 1968 he was assigned to A Battery, 2nd Battalion, 77th Artillery, in Vietnam, first as a radio telephone operator, then as a cannoneer, MOS 13A10. 

On 11 September 1968 the applicant was hospitalized at 106th General Hospital. On 25 September 1968 he was released from that hospital and evacuated from Tachikawa Air Force Base in Japan to Darnell Army Hospital at Fort Hood, Texas.  His reconstructed DA Form 20 (Enlisted Qualification Record) shows that he was a patient in an Army Hospital at Fort Hood, Texas in October 1968. 
On 3 March 1969 he was assigned to the 501st AG Administration Company of the 1st Armored Division at Fort Hood.

An 11 August 1969 report of medical examination indicates that the applicant was medically qualified for separation with a physical profile of 1 1 1 1 1 1.  That report does not show that he had been wounded, or that he had any residuals resulting from a wound. 

The applicant was released from active duty at Fort Hood on 12 September 1969 in the grade of E-4.  He had 2 years of service.  His DD Form 214 shows that he was awarded the Vietnam Service Medal with two bronze service stars, the National Defense Service Medal, and the Republic of Vietnam Campaign Medal. It does not show award of the Purple Heart.

The applicant’s reconstructed DA Form 20 shows PH in the awards and decorations block of that form, with the authority listed as AR 672-5-1 (the awards regulation in effect at that time).  That form also shows the words, “frag wnd” in the wounds block of that form, however, no date of the wound is given.  

A VA search request of 20 November 1970 indicates that a search was made for medical records from Darnell Army Hospital with no results.  

A National Personnel Records Center search request dated 3 June 1983 indicated that a search was made for medical records concerning the applicant, from the 3d Field Army Hospital, and for medical records from Fort Hood, with no results.

Army Regulation 600-8-22 provides that the Purple Heart is awarded for a wound sustained 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, and the medical treatment must have been made a matter of official record.

The aforementioned regulation also provides, in pertinent part, that the Combat Infantryman Badge is awarded to infantry officers and to enlisted and warrant officer persons who have an infantry MOS.  They must have served in active ground combat while assigned or attached to an infantry unit of brigade, regimental or smaller size.  As with all awards, formal recommendation and approval in the chain of command are required.  The award must be announced or published in general or permanent orders.

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.  Failure to file within 3 years may be excused by a correction board if it finds it would be in the interest of justice to do so.

DISCUSSION:  The alleged error or injustice was, or with reasonable diligence should have been discovered on 12 September 1969, the date of his separation. The time for the applicant to file a request for correction of any error or injustice expired on 12 September 1972.

The application is dated 7 February 1998 and the applicant has not explained or otherwise satisfactorily demonstrated by competent evidence that it would be in the interest of justice to excuse the failure to apply within the time allotted.

DETERMINATION:  The subject application was not submitted within the time required.  The applicant has not presented and the records do not contain sufficient justification to conclude that it would be in the interest of justice to grant the relief requested or to excuse the failure to file within the time prescribed by law.

BOARD VOTE:

________  ________  ________  EXCUSE FAILURE TO TIMELY FILE

________  ________  ________  GRANT FORMAL HEARING

___rvo__  ___jma__  ___mw___  CONCUR WITH DETERMINATION

		Loren G. Harrell
		Director

INDEX

CASE ID	AR1998013195	
SUFFIX		
RECON	YYYYMMDD	
DATE BOARDED	19990812	
TYPE OF DISCHARGE	(HD, GD, UOTHC, UD, BCD, DD, UNCHAR)	
DATE OF DISCHARGE	YYYYMMDD	
DISCHARGE AUTHORITY	AR . . . . .  	
DISCHARGE REASON		
BOARD DECISION	DENY	
REVIEW AUTHORITY		
ISSUES         1. 142.00		
2.  107.00		
3.		
4.		
5.		
6.