APPLICANT REQUESTS: Correction of his military records to reflect award of the Purple Heart. The applicant, who died as the result of a single vehicle accident in 1995, subsequent to submitting his request to this Board, stated that he was wounded in action in April 1969 and was treated in the field and released to duty.
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 was inducted and entered active duty on 10 April 1968. Following completion of training he was assigned to Vietnam as a radio teletype operator in December 1968.
In December 1969 the applicant returned to the United States and on 12 December 1969 was released from active duty. Neither his DD Form 214, nor his DA Form 20 (enlisted qualification record) reflect award of the Purple Heart and item 40 (wounds) on his DA Form 20 is blank. The applicant authenticated his DA Form 20 in November 1969 and his DD Form 214 on the date of separation.
His separation physical examination, completed on 12 December 1969, is silent regarding any wounds or injuries sustained as a result of hostile action.
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. There is no evidence, and the applicant had not provided any, which substantiates that he was wounded as a result of hostile action while in Vietnam.
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 12 December 1969, the date of separation. The time for the applicant to file a request for correction of any error or injustice expired on 12 December 1972.
The application is dated 21 April 1994 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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