MEMORANDUM OF CONSIDERATION

	IN THE CASE OF: 

	BOARD DATE:            16 February 2000  
	DOCKET NUMBER:   AR1999028772

	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. Deborah L. Brantley		Senior Analyst	

  The following members, a quorum, were present:

	Mr. Arthur A. Omartian		Chairperson	
	Mr. Curtis L. Greenway		Member	
	Ms. Meta Waller		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 he sustained an injury to his left elbow during an enemy attack when he “fell inside a bunker” on 25 April 1970.  In support of his request he submits a statement from a fellow soldier who remembered the night of the incident and meeting the applicant “in the ambulance after the shooting had stopped.”  The author of the statement indicated that he (the author) had been hurt “from pieces of a mortar that had lodged in [his] right knee” while he remembers the applicant “holding [his] arm and hand.”  In a separate statement submitted with the applicant’s request the author of the “witness” statement indicates that he hopes the information “helps [the applicant] with [his] claim with the VA.”

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 16 May 1968 and served an initial tour of duty in Vietnam between October 1968 and October 1969.  He returned to Vietnam in March 1970.

According to a clinical record sheet rendered on 26 April 1970 the applicant sustained an injury to his left elbow when he fell into a foxhole on 25 April 1970 and hit his elbow which “is now swollen and painful.”  The injury, which would have been considered accidentally incurred, was not recorded as a “battle casualty” and as such the applicant was not awarded the Purple Heart.

The applicant departed Vietnam in February 1971 and was released from active duty on 24 February 1971.  His DD Form 214, which he authenticated, does not reflect entitlement to the Purple Heart.

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.  Injuries which were accidentally incurred, in spite of the fact that they may have occurred during enemy action or in a combat environment do not meet the qualifications for award of the Purple Heart.  Injuries that occurred merely as a result of an individual taking cover during an attack would be considered accidental and as such would not warrant award of 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 24 February 1971, 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 
24 February 1974.

The application is dated 1 July 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

___mw___  _aao____  ____clg_  CONCUR WITH DETERMINATION

		Karl F. Schneider
		Director, Army Review Boards Agency

INDEX

CASE ID	AR1999028772	
SUFFIX		
RECON	YYYYMMDD	
DATE BOARDED	20000216	
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         1.61	142.00	
2.		
3.		
4.		
5.		
6.