MEMORANDUM OF CONSIDERATION

IN THE CASE OF:       

BOARD DATE:           10 February 2000
DOCKET NUMBER:   AC89-05668
		              AR1999026148

	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.
	 		 	
	Ms. P. A. Castle		Analyst	

  The following members, a quorum, were present:

	Mr. Van B. Cunningham		Chairperson	
	Mr. James P. Steuve		Member	
	Mr. Kenneth L. Wright		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 to authorize a formal hearing, recommend that the records be corrected without a formal hearing, or to deny the application without a formal hearing if it is determined that insufficient relevant evidence has been presented to demonstrate the existence of probable material error or injustice.

	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:  Reconsideration of his previous request to correct his records to reflect award of the Purple Heart.

APPLICANT STATES:  That proof of his claims were in his military and medical records but they were destroyed in the fire of 1973.  He contends that his latest CAT scan report revealed he had old head injuries, and together with the documents the Board previously reviewed, should show that it would be in the best interest of justice to excuse his failure to timely file. 

NEW EVIDENCE OR INFORMATION:  Incorporated herein by reference are military records which were summarized in a memorandum of record (MOC) prepared to reflect the Board's original consideration of his case on 16 January 1991. (COPY ATTACHED).

The applicant submits a copy of his 19 July 1996 University Hospital radiology report, which reveals a head injury of uncertain age.

In support of his contention that his records were burned in the 1973 fire, he submits an undated letter from the National Records Center stating his records were presumably lost in the fire.

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.

DISCUSSION:  Considering all the evidence, allegations, and information presented by the applicant, together with the evidence of record, applicable law and regulations, it is concluded:

1.  There is no available substantiating evidence to show that the applicant was wounded as the result of enemy action.  The fact that a CAT scan shows he sustained a head injury does not demonstrate that it occurred in combat.

2.  The applicant has not substantiated that the wound required medical treatment.  He has not met the regulatory requirements for award of the Purple Heart.

3.  The Board’s original decision was based on the contents of the applicant’s medical and military records as stated throughout the memorandum of consideration.

4.  Prior to reaching the determination that it was not in the interest of justice to excuse the failure to timely file, the Board looked at the entire file.  It was only after all other aspects had been considered and it had been concluded that there was no basis to recommend a correction of the records that the Board considered the statute of limitations.  Had the Board determined that an error or injustice existed it undoubtedly would have recommended relief in spite of the failure to submit the application within the 3 year time limit.  The Board has never denied an application simply because it was not submitted within the required time.

5.  The overall merits of the case, including the latest submissions and arguments are insufficient as a basis for the Board to reverse its previous decision.

6.  In view of the foregoing, there is no basis for granting the applicant's request.

DETERMINATION:  The applicant has failed to submit sufficient relevant evidence to demonstrate the existence of probable error or injustice.

BOARD VOTE:

________  ________  ________  GRANT

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION

	Karl F. Schneider
			       Director, Army Review Boards Agency

INDEX

CASE ID	AC
AR	
SUFFIX		
RECON	YYYYMMDD	
DATE BOARDED	YYYYMMDD	
TYPE OF DISCHARGE	(HD, GD, UOTHC, UD, BCD, DD)	
DATE OF DISCHARGE	YYYYMMDD	
DISCHARGE AUTHORITY	AR . . . . .  	
DISCHARGE REASON		
BOARD DECISION	DENY	
REVIEW AUTHORITY		
ISSUES         1.		
2.		
3.		
4.		
5.		
6.