MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:   

	BOARD DATE:         14 October 1998      
	DOCKET NUMBER:   AC98-05009

	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. John N. Slone		Chairperson	
	Mr. Ernest M. Willcher		Member	
	Mr. Robert W. Garrett		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:  In effect, award of the Purple Heart.  He states on 13 December 1944 he was wounded by glass and metal splinters when the windows on the farm house he was billeted in shattered after an enemy plane exploded near the building.  The applicant notes he was treated by an aidman and returned to his duties.  He states he has “been under gentle persuasion by family members and fellow veterans” to apply for the Purple Heart.  In support of his request he submits two letters from soldiers who indicate they were near the farm house at the time of incident and “rushed over” to see the aidman tending to the applicant.

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 a fire at the National Personnel Records Center in 1973.  Information contained herein was reconstructed from alternative sources.

He entered active duty on 10 March 1942 and arrived in the European Theater of Operations in June 1944 where he performed duties as a light truck driver.  He remained overseas until September 1945 when he returned to the United States and was released from active duty on 24 September 1945 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.”  Extracts from unit morning reports failed to confirm the applicant was wounded in December 1944.

The statements submitted in support of his request are both dated in 1995 and appear to have been in response to a letter from the applicant in which he outlined the events of 13 December 1944 and solicited there support in “covering the above incident that injured me.”  One statement indicates the farmhouse was “hit with explosives by a German aircraft” on 13 September 1944, although the applicant noted in a handwritten comment on the statement that “September should read December” and that the author “is up there in years and [he could] accept this error.”  The second statement notes that “an enemy plane dropped some explosive on the farmhouse….”

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.  There is no medical evidence, and the applicant has not provided any, which supports his contention that he was wounded as a result of hostile action during World War II. The statements, rendered more than 50 years after the fact, are inconsistent with information in available official records.

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 24 September 1945, the date he was discharged from active duty and signed his report of separation.  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 7 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

__JNS__  __EMW__  __RWG__  CONCUR WITH DETERMINATION

		Loren G. Harrell
		Director