MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:       

	BOARD DATE:           12 August 1999     
	DOCKET NUMBER:   AR1999014813

	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. 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.  He states he sustained a gunshot wound to his right arm in September 1969 but never received the Purple Heart.

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 23 July 1968 and was assigned to Vietnam in January 1969.  His records confirm he was awarded a Bronze Star Medal, Army Commendation Medal and the Combat Infantryman Badge while in Vietnam.

In June 1970, after returning from Vietnam in January 1970, he underwent a physical examination in preparation for separation.  The examining physician noted the applicant had a scar on his right upper arm and right upper back, which the applicant attributed to “old fragment wounds.”  The physician made no mention of any wounds sustained as a result of hostile actions and did not confirm the source of the scar on the applicant’s arm or back.

The applicant was released from active duty on 22 July 1970.  Neither his DD Form 214 nor his DA Form 20 (enlisted qualification record) reflect entitlement to the Purple Heart and item 40 (wounds) on his DA Form 20 is blank.  The applicant last authenticated his DA Form 20 in April 1970 and his DD Form 214 was authenticated on the date of his separation.

Subsequent to his separation, the applicant submitted a claim for disability to the VA.  He noted in his application that he had sustained a shell fragment wound to his back in April 1969 and a wound to his right arm in July or August 1969.  The VA, however, noted that there was no record “of alleged treatment” in the applicant’s file.

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, nor has the applicant provided any, which confirms he was wounded as a result of hostile action while in Vietnam and as such there is no basis for award of the Purple Heart.

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 22 July 1970, the date the applicant 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 22 July 1973.

The application is dated 2 April 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	AR1999014813	
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. 107.00		
2. 142.00		
3.		
4.		
5.		
6.