MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:       

	BOARD DATE:            3 June 1999       
	DOCKET NUMBER:   AR1998013217

	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. Loren G. Harrell		Director	
	Mr. Kenneth Aucock		Analyst	

  The following members, a quorum, were present:

	Mr. Raymond V. O'Connor, Jr.		Chairperson	
	Ms. Kathleen A. Newman		Member	
	Mr. Thomas B. Redfern, III		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:  Award of the Purple Heart.

The applicant states that he was informed that his parents would be notified of his injuries if he accepted the Purple Heart.  He did not want his parents traumatized; therefore, he refused the Purple Heart, and was instructed to notify his parents of his injury and hospitalization.

The applicant states that he was wounded in the knee at approximately 0930 on 9 January 1945 during the invasion of the island of Luzon in the Philippines, when a Japanese plane dropped an anti-personnel bomb which exploded, a piece of which hit him in the knee.  He treated his knee, and later, because his knee was giving him lots of trouble, he went to the 33d Division battalion aid station, and was immediately sent to the 360th Station Hospital in Northern Luzon in May 1945.  Surgery was performed, and he was bed ridden for about two months, and had physical therapy for one month after.  He had also served in Europe and had enough points to be discharged in a reasonable time.  He requested that his parents not be notified of his injury.  Since he refused the Purple Heart, his request was aproved, but only if he wrote his parents concerning his injury and hospitalization. 

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 on active duty on 17 May 1943 and served in the European Theater of Operations from January 1944 to September 1944.  He served in the Western Pacific Theater of Operations from September 1944 until November 1945, returning to the United States in December of that year.  His WD AGO Form 53-55 (Enlisted Record and Report of Separation – Honorable Discharge), which he signed, shows that he participated in the Normandy, Northern France, Luzon, and New Guinea campaigns during the war; and was awarded the American Service Medal, the Asiatic Pacific Service Medal, the European African Middle Eastern Service Medal, the Good Conduct Medal, the Distinguished Unit Badge, the Philippines Liberation Medal, and the World War II Victory Medal.  It does not show award of the Purple Heart.  In the block, “Wounds Received in Action”, the word “NONE” is entered.

The applicant was discharged at Fort Dix, New Jersey on 4 January 1946.

The applicant has not provided any evidence that he was wounded in action, or  any other information that he was wounded, other than his own statement. 
Army Regulation 600-8-22 provides that the Purple Heart is awarded for a wound 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, and the medical treatment must have been made a matter of official record.

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 4 January 1946, the date of his separation. However, in view of the fact that the board was not established until                     2 January 1947 the applicant’s 3 year period in which to file an application for correction of military records expired on 2 January 1950, 3 years from the date the Board was established.

The application is dated 21 January 1998 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

__rvo___  __kan___  ___tbr__  CONCUR WITH DETERMINATION

		Loren G. Harrell
		Director

INDEX

CASE ID	AR1998013217	
SUFFIX		
RECON	YYYYMMDD	
DATE BOARDED	19990603	
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. 107.00		
3.		
4.		
5.		
6.