MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:    

	BOARD DATE:         27 January 1999                     
	DOCKET NUMBER:   AC98-11865
				   AR1999015318

	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	
	Ms. Margaret K. Patterson		Member	
	Mr. John H. Kern		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 was given the Purple Heart while in the hospital in England

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.

Although the applicant’s WD AGO 55-53 (report or separation) is not available his enlistment physical examination indicates he entered active duty in 1943.  His service medical records note that he was treated for an “undiagnosed condition of upper eyelid” in December 1943 while overseas.  He was placed on quarters and returned to duty on 19 December 1943.  On 29 January 1944 he sustained a contusion to his right heal “when jumping from [an] Army truck...while riding on authorized pass in [the] same truck which was being used for the company.”  He was restored to duty on 4 February 1944.

The applicant’s separation physical examination, conducted on 23 November 1945, notes the applicant’s “trouble with left eye” but makes no mention of any wounds sustained as a result of hostile action.

The applicant indicated in his application that he was released from active duty on 24 November 1945.

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 evidence, nor has the applicant provided any, which confirms he was wounded as a result of hostile action during World War II.

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 November 1945, 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 8 August 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___  __mkp___  ___jhk__  CONCUR WITH DETERMINATION

		Loren G. Harrell
		Director