MEMORANDUM OF CONSIDERATION

	IN THE CASE OF: 

	BOARD DATE:            1 February 2001   
	DOCKET NUMBER:   AR2000050619

	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. Luther L. Santiful		Chairperson	
	Mr. Ernest W. Lutz		Member	
	Mr. James e. Anderholm		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:  That his records be corrected to reflect award of the Purple Heart.  He states he sustained a shrapnel wound to the right side of his head in August 1969 and that the shrapnel was removed by the VA in 1971.  In support of his request he submits copies of his separation physical examination and documents from the VA regarding the 1971 removal of the shrapnel.

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 May 1968 and successfully completed basic and advanced individual training prior to being assigned to Vietnam in October 1968. In August 1969 the applicant was performing duties as an infantryman with the 96th Infantry Brigade.  His service medical records indicate he was treated for a headache in late September 1969 which he attributed to a “retained metal frag.”  There is no indication of the source of the fragment and no indication he was ever awarded a Purple Heart.

The applicant returned to the United States in October 1969 and in January 1970 underwent a separation physical examination.  The examination noted “small piece of shrapnel in scalp” but did not indicate the source of the shrapnel or attribute it to enemy action. 

On 9 February 1970 the applicant was honorably discharged from active duty.  Neither his DD Form 214 (Armed Forces of the United States Report 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.  The applicant authenticated his DA Form 20 on 17 November 1969 and his DD Form 214 on the date of his separation.

In May 1971 a “subcutapeously palpable fragment of shrapnel which was about 7 mm. in length and 2 mm. in diameter was easily found and removed” from the right side of the applicant’s head.  

In an April 2000 statement the applicant noted that he “suffered an injury to [his] skull just over the right ear.”  He indicated that he “thought [he] had just a scratch as there was very little blood” and that the shrapnel was removed in May 1971.

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.  Wounds so slight that they did not require treatment by a medical officer do not meet the requirements for 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 9 February 1970, 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 9 February 1973.

The application is dated 21 April 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

__lls___  ___ewl__  ___jea__  CONCUR WITH DETERMINATION

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

INDEX

CASE ID	AR2000050619	
SUFFIX		
RECON	YYYYMMDD	
DATE BOARDED	20010201	
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.