APPLICANT REQUESTS: Award of the Purple Heart. He states he was injured by a sand bag that fell while his unit was under attack.
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 6 June 1968 and was assigned to Vietnam as an infantryman in December 1968. His service medical record contain several documents indicating he sustained a closed fracture of his left ankle on 21 January 1969 when sand bags fell from a bunker 5 miles south of Camp Eagle, Vietnam. All the medical documents indicate the injury was accidentally incurred and that he was not a battle casualty. As a result of the applicants accidental injury he was evacuated from Vietnam via Japan and returned to duty in Korea. He remained on active duty until 22 February 1979 when he was honorably discharged.
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.
Included as part of the Department of Defense Appropriations Act for fiscal year 1994 was an amendment to the rules governing award of the Purple Heart. While the original rules established that the Purple Heart would be awarded to individual's killed or wounded as a result of hostile action the amendment enabled the Secretaries of each department to award the Purple Heart to members of the armed forces who were killed or wounded in action by weapon fire, while directly engaged in armed conflict, other than as the result of an act of an enemy of the United States. This ruling, in effect, granted the service Secretaries the authority to award the Purple Heart to individual directly engaged in armed conflict who were killed or wounded as a result of "friendly fire."
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
22 February 1979, the date of his discharge. The time for the applicant to file a request for correction of any error or injustice expired on 22 February 1982.
The application is dated 3 February 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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