MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:   

	BOARD DATE:         4 November 1998      
	DOCKET NUMBER:   AC98-11489

	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. James E. Vick		Chairperson	
	Mr. Luther L. Santiful		Member	
	Mr. Thomas N. Kuhn		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 he sustained a shrapnel wound to his right hand on 25 December 1944.  In support of his request he submits copies of newspaper reports and documents indicating he was at the Wakeman Convalescent Hospital at Camp Atterbury, Indiana between August 1945 and December 1945.

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 5 December 1942 and arrived in the European Theater of Operations in October 1944.  He returned to the United States in June 1945 and on 18 September 1945 was released from the Army with a certificate of disability.  His WD AGO Form 53-55 (report of separation), which he authenticated, does not reflect entitlement to the Purple Heart and item 34 (wounds received in action) reflects “NONE.”

The applicant submitted an October 1945 document from the VA which indicated that he was granted service connection, without compensation, for a right knee disability.  The applicant noted on the document that the knee disability was related to a jeep accident he was involved in in February 1945.  On the same document the VA deferred a service connected determination on his “right hand...pending consideration by the Regional Office.”  A 1947 VA document notes a rating on his right hand was being further deferred “pending receipt of further service records.”

The two newspaper articles submitted with the applicant’s application appear to have been written after the February 1945 jeep accident.  The articles note the applicant’s family was notified their son “has been wounded a second time...”  It notes that the applicant “had been wounded in both legs” and that as of 
16 February 1945 he was “making normal improvement.”  The article also states the applicant “was wounded slightly, December 25, in Belgium, and had returned to his outfit.”

The newspaper article would indicate the applicant was wounded on two separate occasions.  However, the use of the term “wounded” in the article did not necessarily mean “as the result of hostile action” considering that the February 1945 incident was actually the result of jeep accident.

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.  There is no evidence, and the applicant has not presented any, which confirms he was wounded as a result of hostile actions during World War II.  The referral to a December 1944 “wound” in the newspaper articles are not supported by any documents contained in official files.

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 18 September 1945, 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 3 February 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

________  ________  ________  CONCUR WITH DETERMINATION

		Loren G. Harrell
		Director