MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:   

	BOARD DATE:        25 November 1998  
	DOCKET NUMBER:   AC98-11958

	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 award of the Purple Heart and the Combat Infantryman Badge.  He states he “served [his] country in combat in Korea [and] helped carry my dead buddies back to the M.L.R.” and as such would like the award in “memory of them.”  In support of his request he submits a copy of his separation physical examination which notes he dislocated his shoulder in May 1953.

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 26 November 1951 and served nearly 15 months overseas where he was awarded the Korean Service Medal.  On 19 August 1953 he was released from active duty.  His separation document, which he authenticated, does not reflect entitlement to the Purple Heart and item 29 (wounds received as a result of action with enemy forces) reflects “NONE.”

While his DD Form 214 indicates the applicant’s last unit of assignment prior to separation was Company F, 223 Infantry Regiment his service medical records indicate he was also assigned to an engineer element.  There is no evidence the applicant held an infantryman specialty while in Korea.

A letter included in the applicant’s available files, authored by a fellow soldier, notes that the applicant was “policing up commo wire” when the unit came under attack.  He states the applicant jumped into a trench and dislocated his right shoulder and cut his left leg and that “he was sent to collecting when the accident happened.”

There are basically three requirements for award of the Combat Infantryman Badge.  The soldier must be an infantryman (infantry series specialty), assigned to an infantry unit during such time as the unit is engaged in active ground combat, and must have actively participated in such ground combat.  There is no evidence, and the applicant has not provided any, which confirms he held an infantry specialty while in Korea.

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.  Injuries sustained accidentally are not authorized 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 19 August 1953, the date he was released from active duty and authenticated his separation document.  The time for the applicant to file a request for correction of any error or injustice expired on 
19 August 1956.

The application is dated 13 December 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