MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:   

	BOARD DATE:         4 November 1998  
	DOCKET NUMBER:   AC98-11264

	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 two Purple Hearts.  He states he sustained shrapnel wounds to his arm and hand in May or June of 1967 and in his left leg in August 1967.

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 enter active duty on 28 March 1966 and served continuously until 7 February 1975.  He was assigned to Vietnam between May 1967 and April 1968.  While in Vietnam he performed duties as a cannoneer with the 13th Artillery.

In February 1969 he was discharged for the purpose of immediate reenlistment and was issued a DD Form 214.  The separation document does not reflect entitlement to the Purple Heart.  Item 40 (wounds) on his DA Form 20 (enlisted qualification record) is blank and item 41 (awards and decorations) does not reflect entitlement to the Purple Heart.  In 1974 the Army discontinued using the DA Form 20 and began using a DA Form 2-1 (personnel qualification record) to record information about an individual’s military service, including information concerning awards and decorations.  The applicant’s DA Form 2-1 also reflects no entitlement to a Purple Heart.

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 he was wounded as a result of 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 7 February 1975, 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 
7 February 1978.
The application is dated 6 May 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___  ___TNK__  CONCUR WITH DETERMINATION

		Loren G. Harrell
		Director