APPLICANT REQUESTS: Award of the Purple Heart. He states, in effect, that he sustained a mortar concussion in May 1969 while in Vietnam and as such is entitled to award of the Purple Heart.
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 entered active duty on 14 March 1967 and in October 1968 was assigned to Vietnam as an infantryman with the 503rd Infantry. He was awarded an Air Medal for the period
1 October 1968 through 1 April 1969 and the Combat Infantryman Badge in January 1969.
According to his original service medical records he was seen by medical personnel on 5 May 1969 for hearing loss which the applicant claimed occurred 2 weeks earlier as a result of him being near mortar when it went off. The evaluating physician noted the applicants left ear drum had hemorrhaged and on 7 May 1969 the applicant was granted a 3 week temporary profile.
The applicant departed Vietnam in October 1969 and underwent a separation physical examination at Fort Lewis, Washington. The examination is silent regarding any wounds or injuries sustained as a result of hostile action.
On 15 October 1969 the applicant was released from active duty. Neither his DD Form 214 nor his DA Form 20 (enlisted qualification record) reflect entitlement to the Purple Heart and item 40 (wounds) on his DA Form 20 is blank. The applicant authenticated his DA Form 20 in September 1969 and his separation report on the date of his discharge.
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. Awards of the Purple Heart for concussion injuries caused as a result of enemy generated explosions have routinely been awarded since World War II. While the applicant may not have been aware of the eligibility requirements for award of the Purple Heart medical personnel would have been and commanders of medical treatment facilities receiving battle casualties were authorized to award the Purple Heart. Specifically prohibited from award of the Purple Heart are accidental injuries, to include explosive, aircraft, vehicular, and other accidental wounding not related to or caused by enemy action. There is no evidence the applicants ear damaged resulted from an enemy mortar and as such is not entitled to award of the Purple Heart.
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 15 October 1969, the date of discharge. The time for the applicant to file a request for correction of any error or injustice expired on 15 October 1972.
The application is dated 30 January 1995 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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