APPLICANT REQUESTS: Correction of his military records to reflect award of the Purple Heart and Combat Medical Badge. He states he was treated by the Vietnamese for [his] injuries [and] orders were not cut to award [him] the Purple Heart. In support of his request he provides two 1989 statements, one from a physician living in Texas who notes as I can recall the applicant served in Vietnam and they met at the emergency room at Cho Ray Hospital in Saigon. The physician stated that in December 1966, while carrying a litter he asked him about a limp and noticed he was bleeding from his right leg. The statement goes on to note as I recall checking him [the applicant] I located shrapnel in his right leg, right side of waist, and the left upper section of his chest.
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 active duty on 26 July 1965 and arrived in Vietnam in May 1966 where he was assigned as a medical corpsman with the 561st and 584th Medical Companies of the 68th Medical Group. He remained in Vietnam until May 1967 when he was transferred to an Armed Forces Entrance and Examining Station in Jacksonville, Florida.
On 31 May 1968 the applicant was voluntarily released from the Army in order to attend school. His separation physical examination, conducted on 8 April 1968 does not mention any wounds or injuries sustained as a result of hostile action. Neither his DD Form 214, which he authenticate, nor his DA Form 20 (enlisted qualification record) reflects entitlement to the Purple Heart and item 40 (wounds) on his DA Form 20 is blank.
In April 1980 the applicant underwent an entrance physical examination for the purpose of enlisting in the Army Reserve. The examination is silent regarding any wounds or injuries sustained as a result of hostile action while in Vietnam and there are no entries of scars on the applicants right leg, right side of the waist or upper left section of his chest.
His original VA disability claim, initiated in 1983 fails to mention treatment of any wounds sustained as a result of hostile action while in Vietnam. In 1985 and 1986 the applicant was evaluated by medical personnel for disability compensation by the VA. There is no mention of shrapnel scars or wounds sustained as a result of hostile actions in the VA examinations. The first mention of shrapnel wounds appears in the 1989 statement authored by the physician who claims to have rendered medical treatment in 1966. The statement was part of the applicants claim to increase VA disability benefits for PTSD beyond his initial 10 percent rating.
Army Regulation 600-8-22 provides 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.
Army Regulation 600-8-22 also provides that the Combat Medical Badge is awarded to medical department personnel (colonels and below) who are assigned or attached to a medical unit of company or smaller size that is organic to an infantry unit of brigade, regimental or smaller size which is engaged in active ground combat. The applicant was a member of a medical company assigned to a medical group not one which organic to an infantry unit and therefore is not entitled to award of the Combat Medical Badge.
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 31 May 1968, the date of his release from active duty. The time for the applicant to file a request for correction of any error or injustice expired on 31 May 1971.
The application is dated 30 August 1993 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
CONCUR WITH DETERMINATION
Karl F. Schneider
Acting Director
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