MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:       

	BOARD DATE:            11 August 1999    
	DOCKET NUMBER:   AR1999019129

	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	
	Mr. Kenneth Aucock		Analyst	

  The following members, a quorum, were present:

	Mr. John H. Kern		Chairperson	
	Mr. Walter T. Morrison		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:  Award of the Purple Heart.

The applicant quotes from the remarks section of DA Form 3713 (Data for Retired Pay), which he submits with his application, as follows:  “Evidence of record reflects that this individual was a member of an armed force on 24 Sep 75 and his dsable was caused by a combat-related injury.”  

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 on active duty on 5 October 1966, trained as a military policeman attaining the grade of E-4.  He served in Vietnam and was awarded the Army Commendation Medal and the Air Medal.  He was released from active duty on 27 August 1969.  His DD Form 214 does not show award of the Purple Heart.  

The applicant served in the Marine Corps from 6 July 1970 to 4 May 1976.  He again served in Vietnam, from 24 February 1971 to 5 May 1971.  His DD Forms 214 show that he was awarded the Combat Action Ribbon, the Air Medal with “V” device, and the Aircraft Crewman Badge, among other awards.  They do not show award of the Purple Heart.

The applicant enlisted in the Army for four years on 6 October 1976 and remained on continuous active duty until his discharge in 1984.  The applicant’s personnel qualification record shows that his service was primarily as an airborne infantryman who was assigned to airborne units at Fort Bragg, North Carolina, and in Italy.  He also served as a drill instructor and an administrative clerk at Fort Lewis, Washington, as a PMO desk clerk in Italy, and as a TOW platoon leader at Fort Lewis.  He completed numerous military courses, to include military police, infantry, airborne, drill instructor, and jungle warfare training, among others.  He attained the rank of Sergeant First Class.

The applicant has an extensive medical file, showing that he suffered a variety of injuries during his military service.  He injured his left knee during a night parachute jump on 12 April 1979.  He complained of lower back injury after being thrown from a jeep during an accident at Fort Bragg on 7 March 1980.  He was treated for lower back pain in January 1976 while in the Marine Corps, stating that the pain began about 10 December 1975 while skiing.

The applicant received a temporary profile in April 1978 for a sprain in his right wrist, a temporary profile in August 1978 for a foreign body in his right hand, a temporary profile in May 1979 for injury to his left knee, lower leg, and left foot; temporary profiles in September and November of 1979 for torn cartilage to his left knee; and a temporary profile for low back pain in April 1980.  On                  29 June 1981 he received a permanent P3 profile for partial lumbarization of S-1 with pseudo-arthrosis formation of right transverse process and sacrum.  

A 13 November 1982 medical record from a Portsmouth Virginia naval hospital shows that the applicant had a long history of low back pain dating back to 1967, and reinjured his back 5 months ago while parachuting in Italy, and was medically evacuated to Germany.  His condition was diagnosed as mechanical low back pain and he was transferred to the hospital at Fort Bragg.  An                8 June 1983 profile report shows a permanent profile for low back pain. .    

The applicant’s numerous medical records, to include reports of physical examinations, and the reports of medical history he furnished for those examinations, make no mention that he was wounded in action.

A 24 August 1984 DA message shows that the applicant was relieved from active duty and placed on the permanent disability retired list with a 30 percent disability rating.  He was retired with a permanent physical disability on 21 September 1984. 

In a 15 July 1985 application to this Board, in which the applicant requested to be reinstated on active duty, he recounted his military service in the Army and the Marine Corps, stating that from 1966 until 1976 he had physically demanding jobs, but was never seriously injured with the exception of having aviation fuel splashed in his eyes when the helicopter in which he was a crew member crashed.  He went on to say that he injured his left knee in a 1979 parachute jump, and that he received a severe back injury in the summer of 1982 during a parachute jump.  He made no mention of being wounded in action during his military service.

In a 14 January 1986 rating decision the applicant was awarded 10 percent rating for chronic low back strain.  His alleged shell fragmentation wound to his right hand could not be established as service connected.

Army Regulation 600-8-22 provides that the Purple Heart is awarded for a wound 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, 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 21 September 1984, the date of his retirement.  The time for the applicant to file a request for correction of any error or injustice expired on 21 September 1987.

The application is dated 15 September 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

___jhk__  __wtm___  ___jpi__  CONCUR WITH DETERMINATION

		Loren G. Harrell
		Director

INDEX

CASE ID	AR1999019129	
SUFFIX		
RECON	YYYYMMDD	
DATE BOARDED	19990811	
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. 142.00		
2. 107.00		
3.		
4.		
5.		
6.