MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:   

	BOARD DATE:        14 October 1998       
	DOCKET NUMBER:   AC98-10393

	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. John N. Slone			Chairperson	
	Mr. Ernest M. Willcher			Member	
	Mr. Robert W. Garrett			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 he 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:  That his military record be corrected to reflect award of the Purple Heart and Combat Infantryman Badge.  He states he “fought in Vietnam with the 173rd AB Brigade” and received a head injury during a mortar attack in 1967.  He notes that he has PTSD and the VA “seems to put a lot of credence on these 2 awards.”  He states “without the awards it may be impossible for [him] to get the medical attention [he needs].”

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 8 March 1967 and was assigned to Vietnam in October 1967 as a heavy equipment operator (specialty 62E) with the 299th Engineer Battalion.  According to his service medical records he was seen by medical personnel on 15 March 1968 with complaints of headaches and dizziness.  He reported that on 14 March he “had syncopal episode with blow & laceration to head....”  There is no indication the incident resulted from hostile action.  The attending physician noted the applicant had previous syncopal (temporary suspension of breathing) in the past which were sometimes related to heat.  The applicant was issued a temporary profile.

In September 1968 the applicant was evacuated to Madigan General Hospital and ultimately released from active duty as a result of physical disability 
25 November 1968.  He received $760.80 in disability severance pay.  The medical basis for his separation is not reflected in available medical records but appears to have been related to his previous syncopal episodes.  There is no evidence the disability result from any wounds or injuries sustained as a result of hostile action.

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.

There are basically three requirements for award of the Combat Infantryman Badge.  The soldier must be an infantryman (11 series specialty), assigned to an infantry unit during such time as the unit is engaged in active ground combat, and must have actively participated in such ground combat.  He was a heavy equipment operator assigned to an engineer battalion, not an infantryman assigned to an infantry element, and is therefore not eligible for the Combat Infantryman Badge.

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 25 November 1968, 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 
25 November 1971.

The application is dated 9 October 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

__JNS___  __EMW___  _RWG_  CONCUR WITH DETERMINATION

		Loren G. Harrell
		Director