MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:   

	BOARD DATE:         20 January 1999         
	DOCKET NUMBER:   AC98-10002
				    AR1999016556

	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. Robert W. Garrett		Member	
	Ms. Deborah S. Jacobs		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 that he believes that he should be awarded the Purple Heart for trench foot sustained during WWII.  He notes that he believes the diagnosis “was arbitrary and capricious.”

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 personnel file was 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.

The applicant initially entered active duty on 30 March 1943 and arrived in Germany on 9 December 1944.  According to information contained in files maintained by the Office of the Surgeon General the applicant was hospitalized for more than 100 days for trench foot.  The file indicates he was admitted to the hospital on 19 December 1944 with a “non-battle injury” and returned to duty in March 1945.

The applicant was discharged for the purpose of reenlistment on 14 November 1945 and remained on active duty until April 1947.  A separation physical examination, conduct in April 1947 notes the applicant was hospitalized for trench foot in 1945.

In October 1948 he returned to active duty and served until his retirement for length of service on 30 November 1968.  There is no indication he was ever awarded the Purple Heart.

Subsequent to his separation the applicant noted he was “rated as Service Connected by the VA for the disease of Trench Foot.”

While award of the Purple Heart for frostbite injuries is currently prohibited, such injuries were previously a basis for the award.  Until 1951 Army Regulation 600-45, which governed the award of Army decorations, stated that for the purpose of considering an award of the Purple Heart, a “wound” is defined as an injury to any part of the body from an outside force, element, or agent sustained while in action in the fact of the armed enemy or as a result of a hostile act of such enemy.  An “element” pertains to weather and the award of this decoration to personnel who were severely frostbitten while actually engaged in combat is authorized.  However, then, as now, award of the Purple Heart for trench foot has always been specifically prohibited.
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 30 November 1968, the date the applicant was released from the Army and authenticated his separation document.  The time for the applicant to file a request for correction of any error or injustice expired on 
30 November 1971.

The application is dated 22 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

___jh_____  ___rwg__  __dsj___  CONCUR WITH DETERMINATION

		Loren G. Harrell
		Director

INDEX

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