MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:   

	BOARD DATE:        9 December 1998     
	DOCKET NUMBER:   AC98-12578
	                                    AR1998012224

	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:

	Ms. June Hajjar		Chairperson	
	Mr. Fred N. Eichorn		Member	
	Mr. Thomas B. Redfern, III		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 personnel records be corrected to reflect award of the Purple Heart.  He states he was injured when the tank he was riding on was hit by enemy fire.  He indicates he was treated in the field and that in the heat of battle he was not awarded the Purple Heart.  In support of his request he submits two statements from fellow soldiers.

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 August 1944 and served in the European Theater of Operations between January 1945 and June 1946.  The letters submitted in support of his application are dated in 1997.  One individual indicates that he and the applicant were riding on a tank when it was “hit by an artillery shell.”  He notes that several individuals were “all knocked off the tank” and the “the explosion or the fall, or both caused [the applicant’s] back injury.”  The second statement merely indicates the applicant’s unit had been directed to a city only to discover that it was still in the hands of enemy soldiers and that the applicant “could have been” hurt when the tank “back out of the village.”

The applicant underwent a separation physical examination on 3 July 1946 which makes no mention of any wounds or injuries sustained as a result of hostile action.

On 4 July 1946 the applicant was released from active duty.  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.”

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 4 July 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 5 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

__jh____  __fne___  ___tbr__  CONCUR WITH DETERMINATION

		Loren G. Harrell
		Director