MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:    

	BOARD DATE:            11 March 1999     
	DOCKET NUMBER:   AR1999022010

	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. Celia L. Adolphi		Chairperson	
	Mr. Van B. Cunningham		Member	
	Mr. Curtis L. Greenway		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 and Combat Infantryman Badge.  He also asks that his discharge be upgraded.  He states, in effect, that he was wounded as a result of enemy action and that he served over 30 days in combat.  The applicant states his disciplinary action happened after his service in Vietnam and that he was suffering from PTSD at the time he began to have problems.

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 26 September 1967 after receiving a moral waiver for shoplifting and carrying a concealed weapon.  He served in Vietnam as a combat engineer (specialty 12B) with the 65th Engineer Battalion between 1968 and 1969.

Upon his returned to the United States he was assigned to Fort Benning, Georgia.  He was punished three times under Article 15 of the UCMJ (July 1969 for disrespect, September 1969 for failing to obey an order and in January 1970 dereliction of duty) and convicted by two Special Courts-martial for being AWOL.

On 26 February 1971 the applicant’s unit commander initiated action to administratively separate the applicant for unfitness under the provisions of Army Regulation 635-212.  The applicant acknowledged receipt of the proposed separation action, consulted with counsel and waived his attendant rights.

A mental hygiene consultation found the applicant mentally responsible, able to distinguish right from wrong and able to adhere to the right.  He noted that there was no psychiatric disease and cleared the applicant for administrative action as deemed appropriate by his command.

The commander’s recommendation was approved and on 17 May 1971 the applicant was separated with a general discharge.

Army Regulation 635-212, in effect at the time set forth the basic authority for the separation of enlisted personnel.  Paragraph 6a(1) of the regulation provided, 

in pertinent part, that members involved in frequent incidents of a discreditable nature with civil or military authorities were subject to separation for unfitness.  An undesirable discharge was normally considered appropriate.

There are basically three requirements for award of the Combat Infantryman Badge.  The soldier must be an infantryman (11 series specialty), assigned to an infantry unit during such time as the unit is engaged in active ground combat, and must have actively participated in such ground combat.  The applicant was a combat engineer assigned to an engineer battalion and as such does not meet the qualifications for award of the Combat Infantryman Badge.

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, and the applicant has not provided any, that confirms he was wounded as a result of hostile action while I Vietnam and as such there is no basis to award the Purple Heart.

There is no evidence that the applicant applied to the Army Discharge Review Board for upgrade of his discharge within its 15-year statute of limitations.

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 17 May 1971, the date the applicant was discharged 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 17 May 1974.

The application is dated 12 January 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

___cla__  ___vbc__  ___clg__  CONCUR WITH DETERMINATION

		Loren G. Harrell
		Director

INDEX

CASE ID	AR1999022010	
SUFFIX		
RECON	YYYYMMDD	
DATE BOARDED	19990311	
TYPE OF DISCHARGE	(HD, GD, UOTHC, UD, BCD, DD, UNCHAR)	
DATE OF DISCHARGE	YYYYMMDD	
DISCHARGE AUTHORITY	AR . . . . .  	
DISCHARGE REASON		
BOARD DECISION	(NC, GRANT , DENY, GRANT PLUS)	
REVIEW AUTHORITY		
ISSUES         1. 107.00		
2.  110.00		
3.  142.00		
4.		
5.		
6.