MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:.

	BOARD DATE:            11 February 2000      
	DOCKET NUMBER:   AR1999028773

	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:

	Ms. Margaret K. Patterson		Chairperson	
	Mr. George D. Paxson		Member	
	Mr. Thomas B. Redfern, III		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 would “like to request the Purple Heart for [his] active duty during 1969 to 1970” for his “service connected wounds.”  In support of his request he submits copies of VA documents indicating that he was granted a service connected determination for “scars” in May 1978.  A May 1999 VA rating document notes “the veteran is also service connected for wounds received in Vietnam.”

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 6 July 1963 and successfully completed basic and advanced individual training prior to being assigned to Vietnam as an ammo storage specialist in February 1969.  The applicant’s enlistment physical evaluation notes that he was in a car accident prior to his entry on active duty.

On 9 January 1970 the applicant was awarded a Bronze Star Medal with “V” device for his heroic actions on 19 September 1969.  The award citation makes no mention of the applicant being wounded during the event.  He returned to the United States in February 1970 only to return to Vietnam in March 1970 for a second tour of duty.  He remained in Vietnam until February 1971 when he returned to Hawaii where he was released from active duty on 16 February 1971.

His separation physical examination notes “minor superficial healed phos[phorous] burns” but does not attribute the burns to hostile action.  The physical examination makes no mention of any wounds resulting from hostile action.

Service medical records contained in the applicant’s file make no mention of any treatment of wounds sustained as a result of hostile action while in Vietnam.

Neither the applicant’s 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.  In 1993 the applicant contacted officials at the National Personnel Records Center noting that the “V” device had been omitted from the Bronze Star Medal which was recorded on his DD Form 214.  He made no mention of entitlement to any Purple Heart in that correspondence.  A DD Form 215 correcting his DD Form 214 was issued in April 1993.

While the May 1999 VA document provided by the applicant notes that the VA granted him a service connected determination for “wounds received in Vietnam” there is no indication where that information was extracted from or any evidence in available files to support the basis for that determination.

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.

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 16 February 1971, the date the applicant was released from active duty.  The time for the applicant to file a request for correction of any error or injustice expired on 15 February 1974.

The application is dated 28 June 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

____mkp_  ___gdp__  ___tbr__  CONCUR WITH DETERMINATION

		Karl F. Schneider
		Director, Army Review Boards Agency

INDEX

CASE ID	AR1999028773	
SUFFIX		
RECON	YYYYMMDD	
DATE BOARDED	20000211	
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.