MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:   

	BOARD DATE:        2 December 1998                      
	DOCKET NUMBER:   AC98-09928

	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	
	Ms. Deborah L. Brantley		Analyst	

  The following members, a quorum, were present:

	Mr. Raymond V. O’Connor, Jr.		Chairperson	
	Mr. George D. Paxson		Member	
	Mr. John J. Kern		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.  He states, in effect, that he was wounded on 13 January 1945 while serving with the 84th Recon Troop near Beresmanil Belgium.  He notes he sustained an injury to his right arm as the direct result of enemy fire.  He states his unit “was subjected to German shell and mortar fire” and that his wound “was almost certainly caused by a shell splinter although it is possible [he] may have cut, or torn, [his] arm on protruding sharp metal as [he] sought shelter under one of our immobilized MB armored cars.” 

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 were apparently lost or destroyed during the 1973 fire at the National Personnel Records Center.  Information contained herein was reconstructed from alternative sources, including documents provided by the applicant.

He entered active duty on 15 July 1943 and served 16 months in the European Theater of Operations where he “drove armored car to patrol captured towns to maintain law and order.”  He was released from active duty on 27 January 1946 and in January 1948 he enlisted in the Air Force.

The applicant remained on active duty with the Air Force until 7 January 1952.  A 2 January 1952 separation physical examination notes the applicant had a 
3 inch scar on his right arm from “1944, cut from an Army tank - fell on sharp edge.”  There is no indication the wound was the result of hostile action.

The applicant’s file contains a 1996 letter from another soldier who indicates he was a member of the applicant’s unit during World War II.  He notes he is “familiar with and can generally support” the applicant’s description and recollection of the “event that occurred on, or about January 13, 1945 while we were both assigned to the 84th Recon Troop....”  The author does not say he was an eye witness to the injury but does state the applicant was “not evacuated to a medical aid substation presumably because his wound-injury [did] not appear to require such 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.
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 27 January 1946, the date of his discharge.  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 18 March 1996 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____  __gdp____  __jhk____  CONCUR WITH DETERMINATION

		Loren G. Harrell
		Director