MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:

	BOARD DATE:           3 April 2001                   
	DOCKET NUMBER:   AR2001053492

	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	
	Mr. Lee Cates		Analyst	

  The following members, a quorum, were present:

	Mr. Walter T. Morrison 		Chairperson	
	Mr. Thomas F. Baxter		Member	
	Mr. John T. Meixell		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 show entitlement to award of the Purple Heart.  He states he was wounded in combat in Vietnam on 7 December 1968.  He provides a letter of support from a former soldier, which relates that he and his squad of 4 soldiers, while returning from a patrol outside a fire base, were mistaken for the enemy and fired upon by the perimeter guard.  He and the applicant received shrapnel wounds from fragmented M-16 shells that ricocheted off of the surrounding surface area, as they dove for cover.  He received wounds to the back of the left leg and the applicant received wounds to the left buttock and lower leg.

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 available military records show:

On 10 January 1968, he was inducted into the Army of the United States.  He completed his required training and was awarded military occupational specialty 11B (Light Weapons Infantryman).

During the period 17 July 1968 to 15 July 1969, he served in 505th Infantry, in Vietnam.  On one occasion he received nonjudicial punishment under Article 15, Uniform code of Military Justice for sleeping on guard duty.

On 9 January 1970, he was honorably separated under Army Regulation 635-200, chapter 4, based on the expiration of his term of service.  His separation document indicates he had 2 years of creditable service.  He was awarded the Bronze Star Medal, the Army Commendation Medal, the National Defense Service Medal, the Combat Infantryman Badge and the Parachutist Badge.

His Enlisted Qualification Record shows no listing under item 40 (Wounds).

There is no record of medical treatment for wounds received in Vietnam.

Army Regulation 600-8-22  (Military Awards) provides, in pertinent part, that the Purple Heart is awarded for a wound 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, 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 9 January 1970, the date the applicant was separated from active duty.  The time for the applicant to file a request for correction of any error or injustice expired on 9 January 1973.

The application is dated 22 October 1999 (postmarked 8 February 2001) 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

________  ________  ________  CONCUR WITH DETERMINATION

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

INDEX

CASE ID	AR2001053492	
SUFFIX		
RECON		
DATE BOARDED	20010403	
TYPE OF DISCHARGE		
DATE OF DISCHARGE		
DISCHARGE AUTHORITY		
DISCHARGE REASON		
BOARD DECISION	DENY	
REVIEW AUTHORITY		
ISSUES         1.	107.000	
2.		
3.		
4.		
5.		
6.