MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:   

	BOARD DATE:          21 January 1999    
	DOCKET NUMBER:   AC98-11802
				   AR1999015375

	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:

	Ms. Karen J. Newsome		Chairperson	
	Mr. Fred N. Eichorn		Member	
	Mr. John P. Infante		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:  That his military records be corrected to reflect award of the Purple Heart.  He states he sustained a shrapnel wound to his left thigh while in combat in Vietnam in January 1969.  He states that the wound was initially treated “on site” and it took “several days before we were able to return to [the] Bn Aid Station for follow-up care.”

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 entered active duty on 27 September 1967 and was assigned to Vietnam in April 1968 as an “ammo records clerk” for the 40th Ordinance Company.

His service medical records show that he complained of an infection in his upper leg on 20 January 1969.  The area was scrubbed and dressed.  The records note he returned on 22 January 1969 with the same complaint and the area was once again scrubbed and dressed.  There is no indication the infected area resulted from a wound incurred as the result of hostile action.

The applicant returned to the United States in April 1969 and on 26 February 1970 was discharged for the purpose of immediate reenlistment.  His separation document, prepared at that time, and which the applicant authenticated, does not reflect award of the Purple Heart.

He remained on active duty until 26 February 1974.  His separation physical examination, conducted on 11 January 1974 makes no mention of any wounds sustained as a result of hostile action.  Neither his DD Form 214, nor his DA Form 20 (enlisted qualification record), reflect award of the Purple Heart and item 40 (wounds) on his DA Form 20 is blank.  The applicant authenticated his DD Form 214 on the date of his separation and last authenticated his DA Form 20 on 20 February 1973.

In August 1974 the applicant submitted an initial application to the VA for disability compensation.  He makes no mention of any wounds sustained as a result of hostile action while in Vietnam.  Subsequently, in 1985, the applicant reported to the VA that the January 1969 treatment for infection to his left thigh was the result of a “shrapnel wound.”

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.

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 26 February 1974, 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 
26 February 1977.

The application is dated 5 December 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

__kjn___  ___fne__  ___jpi_____  CONCUR WITH DETERMINATION

		Loren G. Harrell
		Director