MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:   

	BOARD DATE:         14 October 1998      
	DOCKET NUMBER:   AC98-10894

	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 he 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 he was wounded in the right ankle by enemy fire on 21 July 1950.  In support of his request he submits a copy of his VA file granting him service connected disability for “history shell fragment wound right ankle with retained foreign bodies.”

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 show:

He entered active duty on 15 August 1948 and according to original service personnel records was assigned to Korea 5 July 1950 and 29 July 1950.  Prior to and following his service in Korea he was assigned to Japan.  The applicant was awarded the Combat Infantryman Badge and the Korea Service Medal.

The applicant’s records indicate that he was mistakenly reported as missing in action on 20 July 1950 but a subsequent correction noted that he was in fact hospitalized on 3 August 1950 “not incident to battle” with a diagnosis of combat exhaustion.

In August 1951 the applicant underwent a reenlistment physical examination.  A 22 August 1951 consultation report notes the applicant fractured his left collar bone at age 12 and 16, fracture his finger at age 16 and in August 1951 fractured his left index finger.  There is no mention of any wounds sustained as a result of hostile action.

On 22 August 1951 the applicant was released from active duty for the purpose of immediate reenlistment.  His DD Form 214, 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 “not applicable.”

The applicant remained on active duty until his retirement in November 1966.  Subsequent to his separation, in 1997, he was granted a 10 percent service connected disability rating for a history of a shell fragment wound to his right ankle.  The VA document submitted in support of his request notes the applicant’s service medical records “show that on 7-21-50 the veteran suffered a superficial missile wound to the right ankle with no artery or nerve involvement.”  There is no indication the injury resulted from hostile action.

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.  Hospital commanders receiving battle casualties were authorized to award the Purple Heart.  There is no evidence, nor has the applicant provided any, which confirms he was wounded as a result of hostile action while in Korea.

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 in November 1968, the date the applicant retired from active duty.  The time for the applicant to file a request for correction of any error or injustice expired in November 1971.

The application is dated 10 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

___JNS__  __EMW___  _RWG_  CONCUR WITH DETERMINATION

		Loren G. Harrell
		Director