MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:      

	BOARD DATE:            12 May 1999       
	DOCKET NUMBER:   AR1999023698

	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. George D. Paxson		Chairperson	
	Mr. Arthur A. Omartian		Member	
	Mr. James E. Anderholm		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 that he sustained a shrapnel wound to his eye during an enemy mortar attack.  In support of his request he submits an extract from his service medical records indicating treatment of a laceration beneath his eye on 19 September 1968.

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 31 August 1967 and was assigned to Vietnam as an engineer in April 1968.  According to the entry in his service medical records, the applicant received stitches for a “small laceration under” his eye on 
19 September 1968.  There is no indication the laceration occurred as a result of hostile action or resulted from shrapnel.

The applicant remained in Vietnam until April 1969 and was briefly assigned to Fort Drum, New York before being reassigned to Fort Devens, Massachusetts where he completed his enlisted contract.

On 28 August 1970 he was released from active duty and transferred to the Army Reserve.  Neither his DD Form 214, nor his DA Form 20 (enlisted qualification record) reflect entitlement to the Purple Heart and item 40 (wounds) on his DA Form 20 is blank.  The applicant last authenticated his DA Form 20 on 17 April 1970 and his DD Form 214 on the date of his separation.

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 has the applicant provided any, which confirms the laceration to his eye was the result of hostile action.

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 28 August 1970, the date the applicant was released from active duty and authenticated his separation report.  The time for the applicant to file a request for correction of any error or injustice expired on 
28 August 1973.

The application is dated 13 August 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

___gdp__  __aao___  ___jea__  CONCUR WITH DETERMINATION

		Loren G. Harrell
		Director

INDEX

CASE ID	AR1999023698	
SUFFIX		
RECON	YYYYMMDD	
DATE BOARDED	19990512	
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. 107.00		
2.  142.00		
3.		
4.		
5.		
6.