MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:   

	BOARD DATE:         17 February 1999     
	DOCKET NUMBER:   AR1999015830

	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. Charles H. Loundermon		Chairperson	
	Mr. Fred N. Eichorn		Member	
	Mr. John Saputo		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 that although his service medical records indicate he sustained a sprained ankle while in Korea in actuality his ankle was hurt during heavy shelling and strafing by jets with fire power.  He notes that medical treatment was limited and that when he was ultimately evacuated to the 121st Evacuation Hospital they were short staffed and treated him “by strapping [him] to a table and [giving him] two shots of procain in [his] injured ankle.”  The applicant states that he was ultimately granted a 10 percent disability rating by the VA for his injury and has been told he should have received a “Purple Heart many years ago because now [he] walks with a limp and [has] arthritis in [his] right ankle and leg due to [his] injury from the war.”

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 fire at the National Personnel Records Center in 1973.  Information contained here was reconstructed from alternative source, including information provided by the applicant.

He entered active duty on 1 June 1951 and served 10 months and 4 days overseas where he was awarded the Korean Service Medal and United Nations Service Medal.

His separation physical examination, conducted on 12 May 1953, notes the applicant gave a “history of spraining his ankle in March 1953” which, according to the report “occurred in Korea when the patient tripped and fell.”

On 15 May 1953 the applicant was released from active duty with an honorable characterization of service.  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 “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.  There is no evidence, nor has the applicant provided any, which confirms he was wounded as a result of hostile action during the Korean War.

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 15 May 1953, the date the applicant was released from active duty and authenticated his separation document.  The time for the applicant to file a request for correction of any error or injustice expired on 15 May 1956.

The application is dated 29 July 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

________  ________  ________  CONCUR WITH DETERMINATION

		Loren G. Harrell
		Director

INDEX

CASE ID	AR1999015830	
SUFFIX		
RECON	YYYYMMDD	
DATE BOARDED	19990217	
TYPE OF DISCHARGE	(HD, GD, UOTHC, UD, BCD, DD, UNCHAR)	
DATE OF DISCHARGE	YYYYMMDD	
DISCHARGE AUTHORITY	AR . . . . .  	
DISCHARGE REASON		
BOARD DECISION	(NC, GRANT , DENY, GRANT PLUS)	
REVIEW AUTHORITY		
ISSUES         1. 107.00		
2. 142.00		
3.		
4.		
5.		
6.