MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:   

	BOARD DATE:        25 November 1998                      
	DOCKET NUMBER:   AC98-11841

	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. John N. Slone		Member	
	Mr. Raymond V. O’Connor, Jr.		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 military records be corrected to reflect that he was assigned to Company A, 737th Tank Battalion vice Company C, 737 Amphibious Tractor Battalion and that he be awarded the Purple Heart.  He states he was wounded in action on 25 December 1944 when his “tank took a direct hit from a large shell, just outside of where [he] was sitting.”  He notes the “concussion came in the tank, knocking [him] to the floor of the turret, and rendering [him] unconscious.”  He states he bled from the mouth, ears, and nose and that the “medics got [him] out of the tank and put [him] to bed in the barn, covering [him] with a tarp.”  In support of his request he submits two statements from individuals who indicate they were former members of the applicant’s unit. 

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 October 1943 and served in the overseas theater of operations as a tank gunner between May 1944 and August 1945.  On 
4 November 1945 he was released from active duty as a result of demobilization. His WD AGO Form 53-55, which he authenticated, does not reflect entitlement to the Purple Heart and item 34 (wounds received in action) reflects “NONE.”  Item 6 (organization) on his separation document indicates the applicant was last assigned to Company A, 737th Amphibious Tractor Battalion.

The statements submitted in support of the applicant’s request are both dated in 1997.  One statement indicates the author was assigned to Company C, 737th Tank Battalion on 24 December 1944 when “we took a hit on the left side of the 75 mm gun.”  He notes the applicant was “sitting on the left side of the tank turret where the shell exploded” and that he was “bleeding from the concussion from the nose and mouth.”  The second statement, authored by an individual who indicates he was the applicant’s tank commander on 25 December 1944 “when we were hit by a large shell in Luxembourg” and that the applicant “was severely injured, and bled from the nose, ears and mouth at the time.”

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 did not require treatment by a medical doctor did not qualify for award of the Purple Heart.

Army Regulation 635-5, which establishes the policies and procedures for the preparation and distribution of separation document states that the last unit of assignment will recorded on the separation document.  There is no evidence in available records, nor has the applicant provided any, which confirms that the unit recorded on his separation document is incorrect.

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 November 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 29 September 1997 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

___jev_____  __jns___  _rvo____  CONCUR WITH DETERMINATION

		Loren G. Harrell
		Director