MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:       

	BOARD DATE:            7 July 1999       
	DOCKET NUMBER:   AR1999016203

	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. Irene N. Wheelwright		Chairperson	
	Mr. James E. Anderholm		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 was wounded in Vietnam on 28 December 1970 and never received the Purple Heart. In support of his request he submits copies of messages detailing his hospitalization and evacuation from Vietnam.

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 initially entered active duty in 1959 and served an initial tour of duty in Vietnam between June 1965 and April 1966.  In December 1970, during his second tour of duty in Vietnam, the applicant sustained multiple fragment wounds to his abdomen, second degree burns to his face and abdomen and a fragment wound to his left eye.  The injuries occurred while the applicant was “warming coffee over [a] fire” and another soldier threw what he thought was an empty box on the fire, which then exploded.  As a result of his injuries he was evacuated from Vietnam.

He was released from active duty on 30 June 1973 but subsequently served several years in the Army National Guard.

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.  Specifically prohibited from award of the Purple Heart are those injuries, which are accidentally incurred, even if they occur in a combat area.  The applicant’s injuries were not the result of hostile action but were merely accidental; as such he is not entitled to an 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 30 November 1973, 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 30 November 1976.
The application is dated 11 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

__inw___  __jea______  __mw_  CONCUR WITH DETERMINATION

		Loren G. Harrell
		Director

INDEX

CASE ID	AR1999016203	
SUFFIX		
RECON	YYYYMMDD	
DATE BOARDED	19990707	
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.