MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:   

	BOARD DATE:            17 March 1999    
	DOCKET NUMBER:   AR1999015662

	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. Ted S. Kanamine		Chairperson	
	Mr. Orville W. Troesch, Jr.		Member	
	Mr. James P. Steauve		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, in effect, that he believes he is entitled to the award because his injury occurred while on a field training exercise, was service connected and combat related.

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 served an initial period of active duty with the Navy between 1976 and 1980 and entered active duty with Army on 12 February 1988.

In July 1989 he was transferred from Korea to Madigan Army Medical Center for the purpose of disability processing as a result of low back pain and leg pain.  His Medical Evaluation Board summary noted that his condition might have resulted from “a severe jolt while riding in a five-ton vehicle” at Aberdeen Proving Ground, Maryland in September 1988.  Correspondence in his file indicates he was on a field training exercise when the vehicle he was riding in hit a “pothole.”

The applicant was released from active duty on 11 June 1990 by reason of physical disability and received disability severance pay.  His Physical Evaluation Board proceedings indicates his disability was rated at 10 percent and resulted “from a combat related injury as defined in Title 26, U.S. Code 104.”

As of January 1998 the applicant was rated 100 percent disabled by the VA.

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 26, United States Code, section 104, provides that disability severance pay is exempt form Federal taxation if the pay is based on a disability resulting from a combat-related injury.  Combat-related is defined as an injury that was incurred in combat, or under simulated combat conditions (e.g., field training exercises), or while performing extrahazardous service (e.g., demolition duty).  The determination that an injury is exempt from taxation does not necessarily mean that an individual is entitled to the Purple Heart based on the injury.  Entitlement to the Purple Heart requires that the wound or injury result from action with enemy forces.

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 11 June 1990, the date the applicant was released from active duty.  The time for the applicant to file a request for correction of any error or injustice expired on 11 June 1993.

The application is dated 5 February 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

________  ________  ________  CONCUR WITH DETERMINATION

		Loren G. Harrell
		Director

INDEX

CASE ID	AR1999015662	
SUFFIX		
RECON	YYYYMMDD	
DATE BOARDED	19990317	
TYPE OF DISCHARGE	(HD, GD, UOTHC, UD, BCD, DD, UNCHAR)	
DATE OF DISCHARGE	YYYYMMDD	
DISCHARGE AUTHORITY	AR . . . . .  	
DISCHARGE REASON		
BOARD DECISION	(NC, GRANT , DENY, GRANT PLUS)	
REVIEW AUTHORITY		
ISSUES         1. 107.00		
2. 142.00		
3.		
4.		
5.		
6.