MEMORANDUM OF CONSIDERATION

	IN THE CASE OF: 

	BOARD DATE:            28 AUGUST 2001
	DOCKET NUMBER:   AR2001060025

	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. John N. Slone 		Chairperson	
	Mr. Richard T. Dunbar		Member	
	Mr. Donald P. Hupman, Jr. 		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 he be awarded the Purple Heart.  He states that in May 1967 he was “the gunner in the lead jeep of the convoy when we were rammed by a Lambretta driven by a Vietnamese….”  He notes he sustained “wounds and injuries” to his “shoulder, back, genitals, face and jaw” and was semi-conscious.  He states he was medically evacuated where he was treated until he was able to return to his unit.  He indicates that he was “informed” that while he was unconscious a “General or Colonel had come through and pinned a Purple Heart on [his] pillow” but never received orders for the award.  He submits no evidence in support of his request except his self-authored statement.

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 30 August 1965 and was assigned as a “general clerk” at DeWitt Army Hospital, Fort Belvoir following successful completion of basic training.  In June 1966 he was transferred to Vietnam where he was initially assigned as a heavy vehicle driver but on 10 May 1967 assumed duties as a company clerk.  He had been awarded specialty 71H (Personnel Specialist) in January 1967.  Item 38 (record of assignments) indicates he returned to duties as a heavy vehicle driver on 23 June 1967 and returned to the United States in July 1967.

On 29 July 1967 he underwent a physical examination.  In his report of medical history he indicated that his health was “very good, best in my life” and made no mention of treatment for any wounds or injuries sustained as a result of hostile action.  The physician who completed the applicant’s examination also noted no wounds or injuries.

On 29 July 1967 he was released from active duty with an honorable characterization of service.  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.  

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.  There is no evidence, nor has the applicant provided any, which confirms he was wounded as a result of hostile actions while in Vietnam.

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 29 July 1967, the date he was released from active duty and authenticated his separation report.  The time for the applicant to file a request for correction of any error or injustice expired on 29 July 1970.

The application is dated 22 September 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.  Prior to reaching this determination the Board looked at the applicant's entire file.  It was only after all aspects of his case had been considered and it had been concluded that there was no basis to recommend a correction of his record that the Board considered the statute of limitations.  Had the Board determined that an error or injustice existed it would have recommended relief in spite of the applicant's failure to submit his application within the three-year time limit.

BOARD VOTE:

________  ________  ________  EXCUSE FAILURE TO TIMELY FILE

________  ________  ________  GRANT FORMAL HEARING

__JNS __  __RTD __  __DPH   _  CONCUR WITH DETERMINATION

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

INDEX

CASE ID	AR2001060025	
SUFFIX		
RECON	YYYYMMDD	
DATE BOARDED	20010828	
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.