MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:   

	BOARD DATE:        4 November 1998       
	DOCKET NUMBER:   AC98-11215

	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	
	Ms. Deborah L. Brantley		Analyst	

  The following members, a quorum, were present:

	Mr. James E. Vick		Chairperson	
	Mr. Luther L. Santiful		Member	
	Mr. Thomas N. Kuhn		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 a second Purple Heart.  He states he sustained hearing loss in his left ear due to a concussion in March 1967 while in Vietnam.

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:

He entered active duty on 9 May 1966 and was assigned to Vietnam as an infantryman in January 1967.  In April 1967 he was awarded a Bronze Star Medal with “V” device for his heroic actions and on 25 June 1967 he sustained a gunshot wound to his left leg and right foot.  As a result of his wounds he was awarded the Purple Heart and evacuated from Vietnam.

In August 1967, following his hospitalization, he was assigned to Fort Dix, New Jersey as a carpenter and in May 1968 was assigned to Aberdeen Proving Ground, Maryland for training as a welder.

On 23 July 1968 he was issued a permanent “2” profile for “mild hearing loss.”  There is no indication the hearing loss was the result of hostile action.

The applicant continued to serve on active duty until 28 August 1972 when he was discharged with an honorable characterization of service.  His separation physical examination notes a “P-3” profile for his hearing as well as the gunshot wound from Vietnam.  There is no indication the hearing profile was related to hostile action.

In April 1974 the applicant enlisted in the USAR where he performed duties as a postal clerk.  He was honorably discharged from the Reserves in 1978.

Army Regulation 600-8-22 provides, in pertinent part, that the Purple Heart is awarded for wounds 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 by a medical officer, and the medical treatment must have been made a matter of official record.  There is no evidence, and the applicant has not provided any, which confirms his hearing loss was attributed to a concussion resulting from hostile action while in Vietnam.

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 28 August 1972, the date he was released from active duty and authenticated his separation document.  The time for the applicant to file a request for correction of any error or injustice expired on 
28 August 1975.

The application is dated 7 July 1997 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

__JEV___  __LLS___  __TLK__  CONCUR WITH DETERMINATION

		Loren G. Harrell
		Director