MEMORANDUM OF CONSIDERATION

	IN THE CASE OF: 

	BOARD DATE:            20 April 2000                  
	DOCKET NUMBER:   AR1999033133

	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. Walter T. Morrison		Chairperson	
	Mr. Roger Able		Member	
	Ms. Margaret V. Thompson		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 his records show that he is "entitled to the Purple Heart."  He notes he sustained a fragment wound to his chest on 4 June 1971.  In support of his request he submits an extract from his service medical records and a copy of a VA document granting him a service connected rating for "shell fragment wound, left anterior chest with metallic foreign body" awarded in 1972.

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 15 September 1970.  His enlistment physical examination notes that he was involved in a car accident in 1969 and received treatment for a chipped ankle and injuries to his arm and hand.

His service medical records note that medical personnel saw him in November and December 1970 at Fort Polk, Louisiana for complaints of a lump in his left breast which was a "2cm x 3cm freely malleable mass…that gives pain on palpitation."

The applicant was assigned to Vietnam as an infantryman in February 1971 and in June 1971 was seen by medical personnel regarding a cyst on his scalp.  The medical entry also noted that the applicant reported receiving a fragment wound to his left chest "2 weeks ago."  An x-ray revealed a "2 x 3 cm fragment" with a well healed scar.

In January 1972 the applicant underwent a physical examination in connection with his separation from active duty.  The separation exam notes a physical profile based on the applicant's ankle but makes no mention of any wounds sustained as a result of hostile action.

He was released from active duty on 17 January 1972.  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.

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 to support that the applicant was wounded as a result of hostile action.  The medical information concerning a fragment wound to his left chest was based solely on information provided by the applicant.

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 January 1972, the date the applicant was released from active duty and authenticated his separation document.  The time for the applicant to file a request for correction of any error or injustice expired on 17 January 1975.

The application is dated 27 October 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

___wtm__  ___ra___  ___mvt__  CONCUR WITH DETERMINATION

		Karl F. Schneider
		Director, Army Review Boards Agency 

INDEX

CASE ID	AR1999033133	
SUFFIX		
RECON	YYYYMMDD	
DATE BOARDED	20000420	
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.