MEMORANDUM OF CONSIDERATION

	IN THE CASE OF: 

	BOARD DATE:            7 November 2000   
	DOCKET NUMBER:   AR2000044771

	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. Carl W. S. Chun		Director	
	Ms. Deborah L. Brantley		Senior Analyst	

  The following members, a quorum, were present:

	Mr. George D. Paxson		Chairperson	
	Mr. Melvin H. Meyer		Member	
	Ms. Paula Mokulis		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 did not notice that the Purple Heart was not on his discharge document.  In support of his request he submits what appears to be a copy of an "intake" interview document from the VA completed in 1989 and an undated letter from an individual who indicated he had met the applicant on 19 October 1969 and has kept in touch with him since that time.  The author of the statement indicated the applicant had cotton in his ears at the time he met him and was informed by the applicant that he had sustained an "injury to his ear drum as a result of a grenade explosion."

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 13 December 1967 and was assigned to Vietnam as an infantryman in September 1968.  In January 1969 he assumed duties as a light vehicle driver and departed Vietnam enroute to the United States on 
20 October 1969.

On 21 October 1969 he was honorably discharged from active duty.  Neither his DD Form 214 (Armed Forces of the United States Record of Transfer or Discharge) 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.  He authenticated his DA Form 20 on 20 October 1969 and his DD Form 214 on the date of his separation from active duty.

The applicant's original disability claim, initiated on 27 January 1970 makes no mention of any wounds sustained as a result of hostile action but does note the applicant was treated for a fractured neck in December 1968 and for fungus on several occasions while in Vietnam.  The "intake" interview sheet provided by the applicant in support of his request notes that he was "shot in buttock" and sustained a concussion.

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 21 October 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 21 October 1972.

The application is dated 3 July 2000  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__  __mhm___  __pm____  CONCUR WITH DETERMINATION

    Carl W. S. Chun
    Director, Army Board for Correction
	                of Military Records

INDEX

CASE ID	AR2000044771	
SUFFIX		
RECON	YYYYMMDD	
DATE BOARDED	20001107	
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.