RECORD OF PROCEEDINGS

	IN THE CASE OF:  

	BOARD DATE:  9 December 2003
	DOCKET NUMBER:  AR2003087859

	I certify that hereinafter is recorded the true and complete record of the proceedings of the Army Board for Correction of Military Records in the case of the above-named individual.  

	Mr. Carl W. S. Chun		Director	
	Ms. Joyce A. Wright		Analyst	

  The following members, a quorum, were present:

	Mr. Mark D. Manning		Chairperson	
	Ms. Eloise C. Prendergast		Member	
	Mr. Raymond J. Wagner		Member	

	The applicant and counsel if any, did not appear before the Board.

	The Board considered the following evidence:

	Exhibit A - Application for correction of military records.

	Exhibit B - Military Personnel Records (including advisory opinion, if any).

THE APPLICANT'S REQUEST, STATEMENT, AND EVIDENCE:  

1.  The applicant requests that he be awarded the Purple Heart. 

2.  The applicant states that he was injured during combat while engaged with the enemy.  He was attacked by an enemy truck similar to the trucks reported to be carrying firebombs.  While assigned to the 101st Airborne Division, he suffered a combat related injury on 27 January 1991.  He volunteered to drive a large truck as part of an armed convoy.  Several soldiers were attacked by men in small trucks carrying Molotov cocktails which were unmistakable white and orange.  During the trucks' re-supply, he noticed a white and orange truck approaching the truck ahead of his.  The driver in front of the truck slammed on brakes and swerved.  He attempted to slow down; however, he had to swerve to miss hitting the truck.  The truck rolled four times and landed upside-down with the roof collapsing upon him and another passenger.  He injured his back, knees, and shoulder and received damage to his frontal lobes of his brain.  He was later diagnosed with brain damage and permanent psychosis due to the accident. 

3.  The applicant provides a copy of his DD Form 214 (Certificate of Release or Discharge from Active Duty) and Medical Evaluation Board (MEB) Narrative Summary.

CONSIDERATION OF EVIDENCE: 

1.  The applicant is requesting correction of error which occurred on 26 June 1996, the date of his discharge.  The application submitted in this case is dated 27 February 2003.  

2.  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.  This provision of law allows the Army Board for Correction of Military Records (ABCMR) to excuse failure to file within the 3-year statute of limitation if the ABCMR determines that it would be in the interest of justice to do so.  In this case, the ABCMR will conduct a review of the merits of the case to determine if it would be in the interest of justice to excuse the applicant’s failure to timely file.

3.  The applicant's military records show he enlisted on 5 November 1988.  He served in Saudi-Arabia from 15 September 1990 to 4 April 1991 and in Korea from 18 April 1994 to 17 April 1995.  

4.  His DD Form 214 does not show the Purple Heart as an authorized award.  

5.  Item 9 (Awards and Decorations) of his DA Form 2-1 (Personnel Qualification Record) does not show the Purple Heart. 

6.  There are no orders in the applicant’s service personnel records which show that he was awarded the Purple Heart.  There also is no evidence in his records that shows he was wounded or treated for wounds as a result of hostile action.

7.  The applicant provided a copy of his MEB Narrative Summary which was prepared on 1 June 1995.  The summary indicated that he was deployed to Saudi Arabia during the Gulf War.  He was riding in a vehicle that was involved in a motor vehicle accident on 27 January 1991.  He had a back injury and was medically evacuated.  He was diagnosed as having post-traumatic stress syndrome, cyclothymia, low back pain without radiculopathy, patellar femoral syndrome, and right shoulder pain, which did not exist prior to service.  He did not meet retention standards according to Army Regulation 40-501 and was referred to a Physical Evaluation Board (PEB).  

8.  The applicant's MEB and PEB proceedings are unavailable for review.

9.  The applicant was honorably discharged on 26 June 1996, under the provisions of Army Regulation 635-40, paragraph 4-24b(3), with severance pay.  

10.  Army Regulation 600-8-22 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.

DISCUSSION AND CONCLUSIONS:

1.  The evidence of record shows that the applicant sustained a back injury from a vehicle accident while deployed to Saudi Arabia.  However, he has provided no evidence to show that his vehicle accident was the result of hostile action.  Therefore, there is insufficient basis to approve an award of the Purple Heart. 

2.  Records show the applicant should have discovered the error or injustice now under consideration on 26 June 1996; therefore, the time for the applicant to file a request for correction of any error or injustice expired on 26 June 1999.  However, the applicant did not file within the 3-year statute of limitations and has not provided a compelling explanation or evidence to show that it would be in the interest of justice to excuse failure to file in this case.
BOARD VOTE:

________  ________  ________  GRANT RELIEF 

________  ________  ________  GRANT FORMAL HEARING

__mm___  __ep___  ___rw___  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

The Board determined that the evidence presented and the merits of this case are insufficient to warrant the relief requested, and therefore, it would not be in the interest of justice to excuse the applicant's failure to timely file this application within the 3-year statute of limitations prescribed by law.  

		__Mark D. Manning____
		        CHAIRPERSON

INDEX

CASE ID	AR2003087859	
SUFFIX		
RECON		
DATE BOARDED	20031209	
TYPE OF DISCHARGE	HD	
DATE OF DISCHARGE	19960626	
DISCHARGE AUTHORITY	AR .635-40 , paragraph 4-24B(3)	
DISCHARGE REASON		
BOARD DECISION	DENY	
REVIEW AUTHORITY		
ISSUES         1.	61	
2.		
3.		
4.		
5.		
6.