MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:   

	BOARD DATE:         25 November 1998     
	DOCKET NUMBER:   AC98-11941

	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:  Award of the Purple Heart.  He states he received a head wound during enemy action but never receive the Purple Heart.  In support of his request he submits a statement, dated 1997, from and a former soldier who states on 1 September 1944 the unit was bombed and the applicant “was hit in the head” when he was looking at “bullet holes in the hood” of the author’s vehicle “and [he] saw blood on the side of [the applicant’s] head.”  The author states “it was a moon bright night, so bright that [he] was reading the stars & stripes news by moon light when the bombs came down.”

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 entered active duty on 15 October 1940 and arrived in the European Theater of Operations in July 1944 where he was assigned as a mess sergeant.  He remained overseas until October 1945 when he returned to the United States.  On 29 October 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.”  The applicant’s separation physical examination makes no mention of any wounds sustained as a result of hostile action.

Following the applicant’s release from active duty he enlisted in the National Guard and ultimately retired for length of service with more than 23 years of military service.   There is no mention of any wounds sustained as a result of hostile action in any of the applicant’s original military service records or his original service medical records.

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 29 October 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 25 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