MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:    

	BOARD DATE:        25 November 1998     
	DOCKET NUMBER:   AC98-11964

	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, in effect, that he understands a recent ruling authorized award of the Purple Heart for “frostbite-frozen feet-trench foot [as a] combat related injury....”  In support of his request he submits extracts from his service medical records indicating treatment of trench foot and a January 1945 newspaper report which noted the applicant had “informed his parents both his feet had been frozen during the German push of late December....”

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 12 February 1944 and arrived in the overseas theater of operations in August 1944.  On 24 December 1944 he was admitted to the hospital for “trench foot, mild.”  Subsequent medical reports consistently report the applicant’s condition as trench foot.  He was released for limited non-combat duties in February 1945.  Orders returning the applicant to duty specifically state that applicant’s injury was non-battle (NB).  He returned to the United States in April 1946.

His separation physical examination notes treatment for trench foot in January 1945.  On 18 April 1946 the applicant was released from active duty as a result of demobilization.

In May 1946 he was authorized a 10 percent disability rating by the VA based on residuals of trench foot.

While award of the Purple Heart for frostbite injuries is currently prohibited, such injuries were previously a basis for the award.  Until 1951 Army Regulation 600-45, which governed the award of Army decorations, stated that for the purpose of considering an award of the Purple Heart, a “wound” is defined as an injury to any part of the body from an outside force, element, or agent sustained while in action in the fact of the armed enemy or as a result of a hostile act of such enemy.  An “element” pertains to weather and the award of this decoration to personnel who were severely frostbitten while actually engaged in combat is authorized.  However, awards of the Purple Heart for trench foot were specifically prohibited.  The applicant’s original service medical records consistently note the applicant suffered from trench foot and there is no indication, save his own statement in the newspaper article, that he suffered from severe frostbite.

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 April 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 9 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