MEMORANDUM OF CONSIDERATION

	IN THE CASE OF: 

	BOARD DATE:            6 April 2000      
	DOCKET NUMBER:   AR1999030141

	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.  

	Ms. Deborah L. Brantley		Senior Analyst	

  The following members, a quorum, were present:

	Mr. John N. Slone		Chairperson	
	Mr. Ernest M. Willcher		Member	
	Mr. James E. Anderholm		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:  In effect, that his records be corrected to reflect award of the Purple Heart.  He states, in effect, that he sustained “a busted ear drum” as a result of hostile action on 30 November 1969.  In support of his request he submits a copy of a letter he states was written by him on 
2 December 1969 to his then girlfriend detailing his wounds.

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 18 June 1969 and was assigned to Vietnam as an infantryman between November 1969 and October 1970.  While in Vietnam he was awarded the Combat Infantryman Badge, an Air Medal and an Army Commendation Medal.  Each of those awards was confirmed in orders that are contained in the applicant’s military personnel file.

The applicant was assigned to Fort Carson, Colorado in December 1970 and on 17 June 1971 he was released from active duty.  Neither his DD Form 214, 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.  The applicant last authenticated his DA Form 20 in May 1971 and his DD Form 214 was authenticated on the date of his separation.

A separation physical examination notes that the applicant was treated for malaria while in Vietnam and recorded a “perforation” of the right ear drum but does not attribute the perforation to enemy action nor note that it occurred or was treated in Vietnam.

The letter submitted in support of the applicant’s petition notes that he and two other “guys [were] walking along this trail and all of sudden something went off and it threw me forward.”

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 which confirms the applicant was wounded as a result of hostile action while in Vietnam and as such no basis for award of the Purple Heart.

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 17 June 1971, the date the applicant was released from active duty and authenticated his DD Form 214.  The time for the applicant to file a request for correction of any error or injustice expired on 
17 June 1974.

The application is dated 21 July 1999 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

___jns__  ____emw_  ___jea__  CONCUR WITH DETERMINATION

		Karl F. Schneider
		Director, Army Review Boards Agency 

INDEX

CASE ID	AR1999030141	
SUFFIX		
RECON	YYYYMMDD	
DATE BOARDED	20000406	
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.