APPLICANT REQUESTS: Correction of his military records to reflect award of the Purple Heart. He states he suffered a wound to [his] right ankle secondary to a mine explosion and note that a piece of shrapnel was removed from his right ankle in 1990.
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 7 April 1966 and was assigned to Vietnam as an infantryman with the 11th Armored Cavalry Regiment in October 1966.
An entry in his service medical records indicates that on 13 May 1967 he was seen by medical personnel with a complaint of a swollen and painful ankle. The applicant related that he had been hit with an object from mine explosion on 12 May 1967. The examining physician noted as small skin break with inflammation and swelling but no evidence of a foreign body.
In October 1967 the applicant departed Vietnam and completed his enlistment at Fort Sill, Oklahoma. His separation physical examination, conducted on 13 March 1968 makes no reference to any wounds or injuries resulting from hostile action.
On 5 April 1968 the applicant was released from active duty. Neither his DD Form 214 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.
Subsequent to his separation the applicant worked as a carpenter. In 1990 the VA removed a foreign body from his
right ankle which the applicant attributed to a grenade shrapnel injury.
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. Commanders of treatment facilities receiving battle casualties are authorized to award the Purple Heart. There is no evidence, and the applicant has not provided any which confirms his ankle injury resulted from hostile action.
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 5 April 1968, the date discharge. The time for the applicant to file a request for correction of any error or injustice expired on 5 April 1971.
The application is dated 10 November 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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