MEMORANDUM OF CONSIDERATION

	IN THE CASE OF: 

	BOARD DATE:            23 March 2000  
	DOCKET NUMBER:   AR1999030380

	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:

	Ms. Shirley L. Powell		Chairperson	
	Mr. Roger Able		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:  Award of the Purple Heart.  He states he sustained a hearing loss as a result of an “enemy bomb blast” and was “personally presented” the Purple Heart.  He notes that he was treated at the 37th Medical Company and then sent to the 93rd Evacuation Hospital before being evacuated to Valley Forge General Hospital.  In support of his request he submits extracts from his physical disability processing.

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 served an initial period of active duty for training between September 1962 and March 1963 and returned to active duty on 27 March 1968.  He arrived in Vietnam in July 1968 where he performed duties as a medical specialist and was awarded the Combat Medical Badge.

A Medical Board Summary sheet notes that the applicant “had the onset of generalized urticaria and angio-edema” while in Vietnam.  He was treated at the 37th Medical Company and from there he was sent to the 7th Surgical Hospital and finally to the 93rd Evacuation Hospital and ultimately to Valley Forge General Hospital in March 1969.  The medical summary sheet indicates that a “hearing loss was noted in the left ear” following “a bomb blast” in August or September 1968.  Another medical summary sheet notes the applicant’s hearing loss was “untreated.”  There is no indication the bomb blast was the result of enemy action.

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.

The applicant was discharged on 5 September 1969 and his name placed on the Temporary Disability Retired List (TDRL) the following day.  On 31 May 1972 he was permanently retired by reason of disability.  His hearing loss, however, was rated at 0 percent.

Neither the applicant’s 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 authenticated his DA Form 20 in May 1969 and his DD Form 214 on the date of his separation.
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 5 September 1969, the date the applicant was released from active duty and his name placed on the TDRL.  The time for the applicant to file a request for correction of any error or injustice expired on 
5 September 1972.

The application is dated 17 August 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.

(NOTE:  Officials at the ARBA St. Louis are requested to issue the applicant a DD Form 214 reflecting entitlement to the Army Commendation Medal awarded to the applicant in November 1968 which was omitted from his separation document.)

BOARD VOTE:

________  ________  ________  EXCUSE FAILURE TO TIMELY FILE

________  ________  ________  GRANT FORMAL HEARING

____slp_  ____ra__  ___jea____  CONCUR WITH DETERMINATION

		Karl F. Schneider
		Director, Army Review Boards Agency 

INDEX

CASE ID	AR1999030380	
SUFFIX		
RECON	YYYYMMDD	
DATE BOARDED	20000323	
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.