MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:     

	BOARD DATE:  2 September 1999                              
	DOCKET NUMBER:   AR1999021586

	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 H. Aucock		Analyst	

  The following members, a quorum, were present:

	Ms. Margaret K. Patterson 		Chairperson	
	Mr. Thomas N. Kuhn		Member	
	Mr. James M. Alward		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 states that he should receive the Purple Heart for shell fragment wounds received in Vietnam.  He has been awarded service connected injuries for those wounds by the VA but was not awarded the Purple Heart.

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 was inducted into the Army on 17 May 1968, completed training and was assigned to Fort Huachuca, Arizona as a mechanic.  In June 1969 he was assigned to a brigade of the 4th Infantry Division in Vietnam.  He completed his tour in Vietnam and returned to the United States at Fort Lewis, Washington.  He was released from active duty on 10 April 1970 in the grade of E-4.  The applicant had 1 year, 10 months, and 24 days of service.

The applicant’s DD Form 214 does not show award of the Purple Heart.  His personnel qualification record does not show that award, nor does it show that he was wounded in action.  

A 29 February 1996 VA rating decision indicates that the applicant was not granted an increased evaluation for shell fragment wound scar of the scalp, which was then evaluated at zero percent.  An examination revealed that the applicant had a slight depressed, nontender, nonadherent scar of the left temporoparietal area, but that scar did warrant a 10 percent evaluation. 

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 10 April 1970 , the date of his release from active duty.  The time for the applicant to file a request for correction of any error or injustice expired on 10 April 1973.

The application is dated 8 January 1999 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

___mkp_    ___tnk__   ___jma__  CONCUR WITH DETERMINATION

		Loren G. Harrell
		Director

INDEX

CASE ID	AR1999021586	
SUFFIX		
RECON	YYYYMMDD	
DATE BOARDED	19990902	
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.