MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:   

	BOARD DATE:        25 November 1998                     
	DOCKET NUMBER:   AC98-11953

	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 record be corrected to reflect award of the Purple Heart.  He states, in effect, that he should have been awarded the Purple Heart because the “board of Veteran’s Appeals” acknowledged the “fact that [he] was wounded in combat.”  In support of his request he submits a copy of a 1950 decision by the VA to grant the applicant service connection for psychoneurosis.

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 31 January 1944 and served in the European Theater of Operations between July 1944 and March 1946.  On 21 March 1946 the applicant was released from active duty as a result of demobilization.  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.”

Subsequent to his separation, in 1950, the VA granted him service connection for psychoneurosis.  The document authorizing service connection notes “service medical records refer to a history of injury during March 1945” although it does not indicate the injury result from hostile action.  

In a 1995 letter to his congressional representative, the applicant indicated that “he received a leg wound from enemy fire between March 23-25, 1945” and that he “took care of his own wounds....”  A May 1950 letter authored by an individual who indicated he was the applicant’s battalion surgeon, and included with the applicant’s correspondence to his congressional representative, notes that “on March 25, 1945 our unit made an assault crossing of the Rhine river...[and the applicant] was said to be very near an exploding shell.  He was dazed and partially disoriented for several days....afterward he showed evidences of anxiety state and could not properly do his work....”  The former battalion surgeon stated that he did not personally “witness the explosion in this instance.”

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.  Battle fatigue and post traumatic stress disorders are specifically prohibited from award of the Purple Heart.

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 21 March 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 November 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