APPLICANT REQUESTS: The applicant requests award of the Purple Heart. He states that due to selective amnesia, memory of incident has recently been brought out through therapy. The applicant states he was treated at a Naval hospital in late May or early June 1966.
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 between 1954 and 1956 and then reenlisted on 22 April 1957. He served his first tour of duty in Vietnam between September 1965 and September 1966 as a heavy weapons infantryman advisor with the Military Assistance Command. From July 1968 through July 1969 he was again assigned to Vietnam with the Military Assistance Command as an advisor.
The applicants extensive service medical records are silent regarding any wounds or injuries sustained as a result of hostile actions. Although he reported to the VA in 1991 that his war history is significant for three episodes which involved concussive injuries to his head there is no evidence in his service medical records to support that statement. His service medical records do indicate he was treated on several occasions for knee injuries, chest pains, back problems, concussions, and various other ailments but not that the treatment occurred during either tour of duty in Vietnam.
An annual medical examination, conducted on 7 February 1973 makes no mention of any combat incurred wounds or injuries. His separation physical examination, conducted in September 1981 also makes no mention of any wounds or injuries sustained as a result of hostile actions.
On 30 November 1981 the applicant retired for length of service with 27 years of active federal service. Neither his DD Form 214 nor his DA Form 2-1 (personnel qualification record) reflect entitlement to the Purple Heart.
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.
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 30 November 1981, the date discharge. The time for the applicant to file a request for correction of any error or injustice expired on 30 November 1984.
The application is dated 24 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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