MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:    

	BOARD DATE:          14 January 1999       
	DOCKET NUMBER:   AC98-09815
				   AR1999016503

	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	
	Ms. Shirley L. Powell		Member	
	Ms. Kathleen A. Newman		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 March 1968, while in Vietnam, he was shot in the back when his unit came under attack.

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 on 19 April 1968.  Following completion of training as a construction machine operator he was assigned to the 97th Engineer Battalion in France.  In March 1967 he transferred with his unit to Germany.  On 
6 March 1968, while still in Germany, orders were published awarding the applicant the Army Good Conduct Medal.

The applicant returned to the United States in March 1968 and on 29 March 1968 orders were published by the Transition Center at Fort Dix, New Jersey separating the applicant from active duty.  The separation orders indicate the applicant’s last permanent duty station was Pirsemen, Germany.

There is no evidence, nor has the applicant provided any, confirming he was ever in Vietnam and his records do not indicate entitlement to the Vietnam Service Medal.  His separation physical examination notes a problem with his shoulders but makes no mention of any gunshot wound to the area.

In June 1968 the applicant re-enlisted and returned to active duty.  He remained on active duty until 30 June 1988 when he was retired for length of service.  There is no indication in his service record that he served in Vietnam after returning to active duty in June 1968.

On 13 June 1988 the applicant submitted a disability claim to the VA.  He made no mention of any wounds 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.

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 June 1988, the date he was released from discharge and authenticated his separation document.  The time for the applicant to file a request for correction of any error or injustice expired on 30 June 1991.

The application is dated 28 January 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

__rvo___  ___slp__  __kan_____  CONCUR WITH DETERMINATION

		Loren G. Harrell
		Director

INDEX

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