MEMORANDUM OF CONSIDERATION

	IN THE CASE OF: 

	BOARD DATE:            12 April 2000     
	DOCKET NUMBER:   AR2000036240

	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. Robert G. Hinkle		Chairperson	
	Ms. Barbara J. Ellis		Member	
	Mr. James P. Stueve		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:  In effect, that his records be corrected to reflect three awards of the Purple Heart and an Air Medal.  He states that he “turned in [his] flight time of hours and missions” but “does not have [an] Air Medal.”  He notes that he is “owed a[n] Air Medal for as a long range recon patrol leader and air assault team in and out of enemy controlled areas.”  He states, in effect, that he was wounded three times while in Vietnam.  The applicant indicated that he had been wounded by a punji stick, sustained a shrapnel wound to his groin area and was hit in the nose by a grenade.  In support of his request he submits statements authored in January 2000 by an individual who indicates he was commander of the “quick reaction platoon of the 3rd Brigade of the 25th Infantry Division” and that the applicant was a “member of the platoon headquarters and was acting as an assistant squad leader.”

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 5 November 1965 and was initially assigned to Germany prior to being assigned to Vietnam as a mortar gunner in June 1967.  He was initially assigned to Company A, 1st Battalion, 35th Infantry, 3rd Brigade, 25th Infantry Division but was reassigned to the 4th Infantry in October 1967.

In April 1968 he was awarded a Bronze Star Medal with “V” device for his heroic actions on 8 March 1968.  The award citation does not mention that the applicant was wounded during the action.

The applicant returned to the United States in May 1968 and was assigned to Fort Lewis, Washington.  In July 1969 he was convicted by a special court-martial for AWOL and was punished on at least two separation occasions under Article 15 of the UCMJ.

In September 1969 the applicant’s unit commander initiated action to administratively separate the applicant for unsuitability.  The commander noted that the applicant “has developed, and overtly displays, a hostile attitude toward any authority and constantly rationalizes his failings with endless excuses and constant complaints….”  The applicant acknowledged receipt of the proposed separation and waived his attendant rights.  The commander’s recommendation was approved and on 19 September 1969 the applicant was discharged under honorable conditions.

The applicant’s separation document, which he authenticated, reflected entitlement to the Bronze Star Medal with “V” device.  Neither his DD Form 214, nor his DA Form 20 (enlisted qualification record) reflected entitlement to an Air Medal or any Purple Hearts.  Item 40 (wounds) on the applicant’s DA Form 20 is blank.

In 1972 the Army Discharge Review Board unanimously denied the applicant’s petition to upgrade his discharge.  In his petition to the Board he made no mention of any wounds sustained as a result of hostile action or an award of the Air Medal.

In 1977 the applicant again petitioned for VA benefits.  In his letter he noted that he had been awarded the Bronze Star Medal with “V” device but makes no mention of any combat wounds or an award of the Air Medal.  On 16 May 1977 his under honorable conditions discharge was upgraded to fully honorable under a “DOD Discharge Review Program (Special).”

In 1984 the applicant submitted an initial request for disability compensation from the VA.  He noted treatment for “heart, pneumonia, head” between January 1968 and September 1969 while in Vietnam but makes no mention of any of the wounds he now claims serve as a basis for award of the Purple Heart.  There were no medical records available to the Board and the applicant did not provide any medical documentation to support his contentions.

The letters submitted in support of the applicant’s petition were authored in January 2000.  The author states that he assumed command of the “quick reaction platoon of the 3rd Brigade of the 25th Infantry Division” in July 1967 and that the applicant was involved in a “large number of combat assaults” and “paperwork for his Air Medal was prepared and submitted…after [he] had the prerequisite number of flight hours.”  The author also stated that in August 1967 the applicant “was a member of the platoon headquarters and was acting as an assistant squad leader” when the platoon was ambushed and the applicant was hit in the face “by a thrown hand grenade that did not explode” but caused lacerations.  He also noted that the applicant “was also wounded by a punji stick” while diving for cover.  There is, however, no medical evidence, flight records, award recommendations, or documents which confirm the information contained in the January 2000 statements.

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.

Army Regulation 600-8-22 also provides, in pertinent part, that the Air Medal is awarded in time of war for heroism, for meritorious achievement and for meritorious service (sustained operations).  As with all personal decorations, formal recommendations, approval through the chain of command, and announcement in orders are required.

U.S. Army Vietnam (USARV) Regulation 672-1 provided, in pertinent part, guidelines for award of the Air Medal.  It defined terms and provided guidelines for the award based upon the number and types of missions or hours.  Twenty five Category I missions (air assault and equally dangerous missions) was the standard established for which sustained operations were deemed worthy of recognition by an award of the Air Medal.  However, the regulation was clear that these guidelines were considered only a departure point.  Nothing created an entitlement to the award.  Recommendations, approval through the chain of command, and announcement in orders were still required for awards of the Air Medal.

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 19 September 1969, the date the applicant was released 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 19 September 1972.

The application is dated 19 November 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

__rgh__  ___bje__  ___jps__  CONCUR WITH DETERMINATION

		Karl F. Schneider
		Director, Army Review Boards Agency 

INDEX

CASE ID	AR2000036240	
SUFFIX		
RECON	YYYYMMDD	
DATE BOARDED	20000412	
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.	142.00	
2.		
3.		
4.		
5.		
6.