MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:      

	BOARD DATE:           11 DECEMBER 2001                   
	DOCKET NUMBER:   AR2001061584

	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. Karol A. Kennedy		Chairperson	
	Mr. Ronald E. Blakely		Member	
	Mr. Thomas E. O’Shaughnessy, 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:  Award of the Purple Heart.  

The applicant states that he was wounded in Vietnam on 7 February 1967.  He provides a copy of a letter from the Armed Services Center for Research of Unit Records which indicates that the applicant was assigned to Battery C,               1st Battalion, 30th Artillery, when that unit was attacked with enemy mortar fire on 7 February 1967.  The battalion operational report – lessons learned, referred to in that letter, a portion of which is attached, shows that 19 enlisted personnel were wounded during the attack.  That report does not list names of the wounded soldiers.  The letter informed the applicant where he could obtain morning reports verifying that he was wounded. 

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 entered on active duty on 2 June 1966, trained as an artilleryman, and in November 1966 was assigned to Battery C, 1st Battalion, 30th Artillery in Vietnam.  His DA Form 20 (Enlisted Qualification Record) shows that he was medically evacuated to the 7th Field Hospital on 25 April 1967.  That form also shows that he was assigned to an artillery battery at Fort Sill, Oklahoma on       12 June 1967.  There is no entry in Item 40, Wounds, on his DA Form 20.  That form does not show award of the Purple Heart.

The applicant was discharged on 15 August 1967.  His DD Form 214 does not show award of the Purple Heart.  The applicant reenlisted on 16 August 1967.  On 1 February 1968 the applicant’s commanding officer recommended that the applicant be discharged from the Army for unsuitability.  The recommendation was approved and he was discharged under honorable conditions on                  7 February 1968.

The applicant’s records contain no evidence that he was wounded in action.

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.

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.

There is no evidence, nor has the applicant provided any, to indicate that he was wounded in action, and such there is no basis correct his record to show that he was awarded the Purple Heart.

DISCUSSION:  The alleged error or injustice was, or with reasonable diligence should have been discovered on 7 February 1968, the date of his discharge.  The time for the applicant to file a request for correction of any error or injustice expired on 7 February 1971.

The application is dated 13 August 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

__KAK__  __REB __  __TEO __  CONCUR WITH DETERMINATION

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

INDEX

CASE ID	AR2001061584	
SUFFIX		
RECON	YYYYMMDD	
DATE BOARDED	20011211	
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.	107.00	
3.	61	
4.		
5.		
6.