MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:       

	BOARD DATE:            29 July 1999     
	DOCKET NUMBER:   AR1998013375

	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. Charles H. Loundermon		Chairperson	
	Ms. Shirley L. Powell		Member	
	Mr. Curtis L. Greenway		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.

He states that he was wounded by a piece of shrapnel to his right arm while on guard duty when suppressing a Viet Cong attack on 18 October 1969.  At the time the doctor did not know what caused the injury because of the small size of the piece of shrapnel.  He had an operation on his arm, and he was incapacitated for one month.  He thought it was a mosquito bite at that time.  

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 enlisted in the Army for three years on 29 September 1967, completed training as a crane shovel operator, and in February 1968 was assigned to an engineer battalion in Korea.

A 3 December 1968 record of supplementary action under Article 15, UCMJ, indicates that the applicant was reduced to pay grade E-1 by virtue of the vacation of suspension of punishment imposed on 21 November 1968.

The applicant completed his tour in Korea and in February 1969 was assigned to Fort Belvoir, Virginia.  In May of that year he reenlisted for three years for duty in 
Vietnam.  He was assigned to an engineer company in Vietnam in September 1969.  Medical documents which the applicant submits with his request show that he received medical treatment in the form of a repack and an iodoform of gauze from 24 October through 14 November 1969.  In June of 1970 he was assigned to a medical holding company in Japan, returning to Vietnam two weeks later.

On 26 June 1970 the applicant received nonjudicial punishment under Article 15, UCMJ, for AWOL from 25 to 26 June1970.

He completed his tour in Vietnam and was reassigned to Fort Dix, New Jersey.  He went AWOL and upon return to military control was assigned to Fort Riley, Kansas.  On 17 December 1970 the applicant received nonjudicial punishment for AWOL from 21 October 1970 to 1 November 1970; and from 7 November to   7 December 1970.  

On 8 January 1971 charges were preferred against the applicant for threatening a superior officer and for disrespect to a superior officer.  On 26 January 1971 his commanding officer recommended that the applicant be discharged for unfitness and that he be issued an Undesirable Discharge Certificate.  The separation authority approved that recommendation on 11 March 1971 and the applicant was discharged on 23 March 1971.  His DD Form 214 does not show award of the Purple Heart.  

The applicant’s DA Form 20 does not show award of the Purple Heart, and it does not show that he was wounded in action.

On 8 November 1971 the Army Discharge Review Board denied the applicant’s request to upgrade his discharge.  On 24 March 1993 this Board denied the applicant’s request to upgrade his discharge.  

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.

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 23 March 1971, the date of his discharge.  The time for the applicant to file a request for correction of any error or injustice expired on 23 March 1974.

The application is postmarked 25 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

____chl_  ___slp_____  __clg___  CONCUR WITH DETERMINATION

		Loren G. Harrell
		Director

INDEX

CASE ID	AR1998013375	
SUFFIX		
RECON	YYYYMMDD	
DATE BOARDED	19990729	
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.