MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:      

	BOARD DATE:            29 November 2001                  
	DOCKET NUMBER:   AR2001063578

	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. Lee Cates		Analyst	

  The following members, a quorum, were present:

	Mr. Raymond V. O'Connor, Jr.		Chairperson	
	Mr. John P. Infante		Member	
	Mr. William D. Powers		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: That his records be corrected to show award of the Purple Heart (PH).  He indicates that he believes he should have received the PH for injuries, which he received in combat at Qui Nhon, Vietnam.  He provides a copy of his DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge), dated 4 March 1968 and a copy of his Physical Evaluation Board (PEBD) Proceedings.

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 available military records show:

On 13 July 1965, the applicant enlisted in the Regular Army.  He completed his required training and was awarded military occupational specialty 67N (Helicopter Mechanic).  He was advanced to pay grade E-3 effective 7 April 1966.

During the period 16 March to 25 May 1966, the applicant served in a unit in Vietnam.

A DA Form 8-275-2 (Clinical Record Cover Sheet), prepared at Irwin Army Hospital, Fort Riley, Kansas, dated 13 October 1966, indicates, “Patient states AI [injured] when he slipped and fell out of a helicopter while on a supply mission, 11 May 1966, 1230 hours, 20 miles north of Qui Nhon, RVN.”

A Narrative Summary (NARSUM), prepared at Irwin Army Hospital, dated         19 November 1966 indicates, “The patient sustained a fall of approximately        20 feet when he fell out of a helicopter near Qui Nohn (sic), Vietnam.” 

A NARSUM, undated, prepared at the US Army Hospital, Fort Carson, Colorado, indicates, “On 11 May 1966, while on duty in Vietnam, the patient was involved in a helicopter crash---.”  The applicant was assigned to Fort Carson from             30 October 1966 until his retirement.

On 4 March 1968, the applicant was placed on the Permanent Disability Retired List at 30 percent disabled. His separation document indicates he had 2 years, 7 months and 22 days of creditable service. 

Army Regulation 600-8-22  (Military Awards) 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.

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 4 March 1968, the date the applicant was placed on the permanent disability retired list.  The time for the applicant to file a request for correction of any error or injustice expired on 4 March 1971.

The application is dated 30 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 the 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 the application within the three-year time limit.  

BOARD VOTE:

________  ________  ________ EXCUSE FAILURE TO TIMELY FILE

________  ________  ________ GRANT FORMAL HEARING

_rvo___  __wdp___  __jpi___      CONCUR WITH DETERMINATION

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

INDEX

CASE ID	AR2001063578	
SUFFIX		
RECON		
DATE BOARDED	20011129	
TYPE OF DISCHARGE		
DATE OF DISCHARGE		
DISCHARGE AUTHORITY		
DISCHARGE REASON		
BOARD DECISION	DENY	
REVIEW AUTHORITY		
ISSUES         1.	107.0015	
2.		
3.		
4.		
5.		
6.