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ARMY | BCMR | CY2001 | 2001059595C070421
Original file (2001059595C070421.rtf) Auto-classification: Denied
MEMORANDUM OF CONSIDERATION


         IN THE CASE OF:



         BOARD DATE: 30 AUGUST 2001
         DOCKET NUMBER: AR2001059595


         I certify that hereinafter is recorded the record of consideration of the Army Board for Correction of Military Records in the case of the above-named individual.

Mr. Carl W. S. Chun Director
Ms. Deborah L. Brantley Senior Analyst


The following members, a quorum, were present:
Mr. Raymond V. O’Connor Chairperson
Mr. Christopher J. Prosser Member
Ms. Linda D. Simmons Member


         The Board, established pursuant to authority contained in 10 U.S.C. 1552, convened at the call of the Chairperson on the above date. In accordance with Army Regulation 15-185, the application and the available military records pertinent to the corrective action requested were reviewed to determine whether the application was filed within the time established by statute, and if not, whether it would be in the interest of justice to waive the failure to timely file.

         The applicant requests correction of military records as stated in the application to the Board and as restated herein.
The Board considered the following evidence:

          Exhibit A - Application for correction of military
records
         Exhibit B - Military Personnel Records (including
         advisory opinion, if any)

APPLICANT REQUESTS

 : That his records be corrected to reflect award of the Purple Heart. He states he was wounded on 16 August 1967, along with ten others, near Jackson Hole, RVN (Republic of Vietnam). He notes that evidence of “shrapnel should be indicated in x-rays taken August 17, 1967” of his head and ankle. He states that the wounds were slight. He submits no evidence in support of his request.

 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 initially entered active duty as an enlisted soldier on 27 January 1959 and was discharged for the purpose of accepting a commission as a USAR (United States Army Reserve) officer on 13 April 1968. He was immediately called to active duty.

The applicant served in Vietnam as an infantry officer between September 1966 and October 1967 where he was awarded the Combat Infantryman Badge. A performance evaluation report, rendered in May 1968 for the period 11 August 1967 through 15 April 1968 makes no mention of any wounds sustained as a result of hostile action while in Vietnam.

In March 1968 the applicant underwent a physical examination in preparation for his separation from active duty. While the report notes a profile for hearing loss there is no mention of any wounds sustained as a result of hostile action.

On 13 April 1968 the applicant was discharged from active duty. His DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge), which he authenticated does not reflect entitlement to the Purple Heart. An application for VA disability, initiated in April 1968 notes the applicant was treated for a partial hearing loss at Fort Bliss, Texas but makes no mention of treatment of any shrapnel wounds sustained as a result of hostile actions while in Vietnam.

 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. Wounds so slight that they do not require treatment by a medical officer do not meet the requirements for award of the Purple Heart.

 There is no evidence, and the applicant has not provided any which confirms 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 13 April 1968, the date the applicant was discharged from active duty and authenticated his separation report. The time for the applicant to file a request for correction of any error or injustice expired on
13 April 1971.

The application is dated 26 June 2001 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. Prior to reaching this determination the Board looked at the applicant's entire file. It was only after all aspects of his case had been considered and it had been concluded that there was no basis to recommend a correction of his record that the Board considered the statute of limitations. Had the Board determined that an error or injustice existed it would have recommended relief in spite of the applicant's failure to submit his application within the three-year time limit.

 BOARD VOTE :

________ ________ ________ EXCUSE FAILURE TO TIMELY FILE

________ ________ ________ GRANT FORMAL HEARING

__ RVO __ __ CJP ___ __ LDS __ CONCUR WITH DETERMINATION
Carl W. S. Chun
Director, Army Board for Correction
         of Military Records
INDEX
CASE ID AR2001059595
SUFFIX
RECON YYYYMMDD
DATE BOARDED 20010830
TYPE OF DISCHARGE (HD, GD, UOTHC, UD, BCD, DD, UNCHAR)
DATE OF DISCHARGE YYYYMMDD
DISCHARGE AUTHORITY AR . . . . .
DISCHARGE REASON
BOARD DECISION DENY
REVIEW AUTHORITY
ISSUES 1. 142.00
2.
3.
4.
5.
6.



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