MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:      

	BOARD DATE:           15 JANUARY 2002                 
	DOCKET NUMBER:   AR2001063420

	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. Kenneth H. Aucock		Analyst	

  The following members, a quorum, were present:

	Ms. Irene N. Wheelwright		Chairperson	
	Mr. Hubert O. Fry, Jr.		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 his DD Form 214 be corrected to show that he received a chin injury, and gunshot wounds to the right side of his chest.  

He stated that they should be listed there.

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:

The applicant was inducted into the Army on 13 March 1969.  He completed training, and in November 1969 was assigned to Company C, 1st Battalion,       5th Cavalry of the 1st Cavalry Division in Vietnam.

Orders published by the 1st Cavalry Division on 16 July 1970 show that the applicant was awarded the Purple Heart for wounds that he received on            19 June 1970.  The applicant’s DA Form 20 (Enlisted Qualification Record) shows that he received fragmentation wound(s) to the chest on 19 June 1970.

The applicant completed his tour in Vietnam and returned to the United States at Oakland, California.  He was released from active duty on 9 November 1970.  His DD Form 214 does reflect award of the Purple Heart. 

On 8 March 1971 in response to the applicant’s claim for disability, the VA requested information concerning the applicant’s alleged gunshot wound to his right chest that he received in June 1970, his alleged shrapnel wound to his chest that he received in November 1970, an alleged fracture to his right ankle that he incurred in May 1970, and an alleged hearing condition incurred in August 1970. 

On 11 April 1985 the applicant requested from the Army Reserve Components Personnel and Administration Center that he be issued numerous awards to replace the ones lost in a recent fire in his home.  He requested three awards of the Purple Heart.  On 20 June 1985 he was informed that records showed that he was wounded in action on 19 June 1970, but records failed to show that he was entitled to any other awards of the Purple Heart.

Army Regulation 600-8-22 provides 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.

Army Regulation 635-5, then in effect, prescribes instructions for the completion of the DD Form 214.  There are no provisions in that regulation for showing an individual’s wounds on that form.

There is no evidence, nor has the applicant provided any, to indicate that he was wounded in action on more than one occasion.  The applicant’s DD Form 214 shows award of the Purple Heart for the wound that he did receive.  There are no provisions to show the nature of an individual’s wounds on his DD Form 214.  His DD Form 214 is correct and there is no basis to correct it.

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 November 1970, the date he was released from active duty.  The time for the applicant to file a request for correction of any error or injustice expired on 9 November 1973.

The application is dated 19 September 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 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

__INW __  __HOF __  __DPH__  CONCUR WITH DETERMINATION

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

INDEX

CASE ID	AR2001063420	
SUFFIX		
RECON	YYYYMMDD	
DATE BOARDED	20020115	
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.	100.00	
3.	107.00	
4.	110.00	
5.	61	
6.