MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:     

	BOARD DATE:           24 January 2002                    
	DOCKET NUMBER:  AR2001062452

	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. George D. Paxson		Chairperson	
	Mr. Walter T. Morrison		Member	
	Mr. Richard T. Dunbar		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 (PH) based on a gunshot wound (GSW) which occurred on 28 June 1972.  He states “The way I understand Army Regulation 600-8-22 I qualify or this award.”

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:

During the periods 10 August 1966 through 9 August 1970; 10 August 1970 through 27 May 1971; 28 May 1971 through 14 May 1974; and, 15 May 1974 through 14 May 1977, the applicant served on active duty.  He completed his required training and was awarded military occupational specialty 95B (Military Policeman).

During the periods 26 August 1969 through 4 April 1971 and 19 July 1971 through 18 July 1972, he served in the 218th Military Police Company and the 719th Military Police Battalion, respectively, in Saigon, Vietnam.  During the period 8 September 1972 through 18 May 1974, he served in Okinawa.

A DA Form 3647 (Clinical Record Cover Sheet), dated 11 July 1972, indicates that the applicant was admitted to the US Army Hospital, Saigon on 28 June 1972, at 1135 hours for an injury.  The applicant stated that he was shot on “TRU MAN NY” (sic) at 1025 hours.  The line of duty was undetermined pending an investigation.  There is no record of the completed investigation in the available records.

A Standard Form 600 (Chronological Record of Medical Care) entry, dated       28 June 1972 indicates he was shot in the buttocks with a .38 caliber handgun at a range of 5 feet and that the injury is entirely superficial.

Item 40 (Wounds) of his DA Form 2-1 (Personnel Qualification Record) does not show any wounds received as a result of hostile action.

On 14 May 1977, he was honorably discharged under Army Regulation 635-200, based on the expiration of his term of service.  His separation document indicates he has 9 years, 9 months and 5 days of creditable service.  He was entitled to award of the Army Commendation Medal, the Good Conduct Medal, the National Defense Service Medal, the Parachute Badge, the Vietnam Service Medal, the Vietnam Campaign Medal with 60 Device and the Vietnam Gallantry Cross with Palm Unit Citation. 
Army Regulation 600-8-22 provides, in pertinent part, that the PH 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 14 May 1977, the date he was discharged.  The time for the applicant to file a request for correction of any error or injustice expired on 14 May 1980.

The application is dated 14 August 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.  Prior to reaching this determination the Board looked at the applicant's entire file.  It was only after all aspects of the 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 the application within the three-year time limit.

BOARD VOTE:

________  ________  ________ EXCUSE FAILURE TO TIMELY FILE

________  ________  ________ GRANT FORMAL HEARING

_gdp____  _wtm____  _wtm____ CONCUR WITH DETERMINATION

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

INDEX

CASE ID	AR2001062452	
SUFFIX		
RECON		
DATE BOARDED	20020124	
TYPE OF DISCHARGE		
DATE OF DISCHARGE		
DISCHARGE AUTHORITY		
DISCHARGE REASON		
BOARD DECISION	DENY	
REVIEW AUTHORITY		
ISSUES         1.	107.014	
2.		
3.		
4.		
5.		
6.