MEMORANDUM OF CONSIDERATION

	IN THE CASE OF: 

	BOARD DATE:                             8 September 1999 
	DOCKET NUMBER:   AR1999021776

	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 Brantley		Analyst	

  The following members, a quorum, were present:

	Mr. Fred K. McCoy		Chairperson	
	Ms. Karen L. Wolff 		Member	
	Mr. Orville W. Troesch, Jr.		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 sustained a shrapnel wound and received treatment but was never awarded the Purple Heart.  In support of his request he submits a 1998 document from the VA which notes “the presence of metallic fragments overlying the upper portion of the lumbar spine area.”  He also submits a photograph dated “Dec 1966” which he states reflects his “wound[ed] back at our forward firebase some where around March or February 1966.”

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 entered active duty on 2 August 1965 and was assigned to Vietnam as an infantryman between July 1966 and July 1967.

Item 40 (wounds) on his DA Form 20 (enlisted qualification record) reflects a pencil date “20 Nov 66” although there is no indication what the date relates to nor any evidence to indicate the basis for the entry.  Item 41 (awards) on the form reflects the applicant’s other awards and decorations, including his Combat Infantryman Badge, but it does not reflect award of a Purple Heart.

The applicant underwent a separation physical examination at the time of his 
13 July 1967 separation.  However, the examination makes no mention of any wounds sustained as a result of hostile action nor any treatment of any back injuries.

On 13 July 1967 the applicant was honorably discharged in the grade of E-2.  His separation document, which he authenticated, does not reflect entitlement to the Purple Heart.

An initial application for VA disability, initiated in December 1967 makes no mention of any wounds or treatment received by the applicant during his service in Vietnam.

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.  There is no evidence, nor does the applicant provide any, which substantiates that he was wounded as a result of hostile actions while in Vietnam and received treatment.  The information contained in his application is inconsistent with his dates of service in Vietnam and the date on the pictures he submitted to the Board.  The pencil date in item 40 of his DA Form 20 is unsupported by any other evidence and is therefore questionable as a basis to award 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 13 July 1967, the date 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 
13 July 1970.

The application is dated 22 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

___fkm__  ___klw__  ___owt__  CONCUR WITH DETERMINATION

		Loren G. Harrell
		Director

INDEX

CASE ID	AR1999021776	
SUFFIX		
RECON	YYYYMMDD	
DATE BOARDED	19990908	
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.		
3.		
4.		
5.		
6.