MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:        

	BOARD DATE:            23 June 1999      
	DOCKET NUMBER:   AR1999021321

	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	
	Mr. Kenneth Aucock		Analyst	

  The following members, a quorum, were present:

	Ms. Margaret K. Patterson		Chairperson	
	Mr. Gary F. Geraets		Member	
	Mr. Lester Echols		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 received the Purple Heart but the entry showing that award is not on his discharge document. 

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 may have been lost or destroyed in the National Personnel Records Center fire of 1973.  Information herein was obtained from reconstructed records. 

The applicant enlisted in the Army on 12 September 1942.  His WD AGO        Form 53-55 (Enlisted Record and Report of Separation – Honorable Discharge) shows that he was a heavy truck driver, who served in the European Theater of Operations during World War II from May 1944 to August 1945, and participated in two campaigns.  He was awarded the European African Middle Eastern Service Ribbon with two bronze service stars, and the American Theater Ribbon. He was not awarded the Purple Heart.  Item 34, Wounds Received in action, on his separation form, has the word “None” entered.  He was separated on             3 November 1945 at Camp Atterbury, Indiana. 

A medical report indicates that he was treated for problems with his feet on       23 August 1944 at the 4th Field Hospital, and returned to duty on 27 August 1944.

A 1 August 1945 medical report indicates that the applicant was treated for cellulitis to his right knee on 24 July 1945 at the 61st Station Hospital in Foggia, Italy.  A clinical record from the 61st Station Hospital shows that he had bumped his knee in a jeep, that his knee had become swollen and painful, and he was treated with ice and penicillin at his unit.  

On 3 November 1945, the date he was separated from the Army, the applicant underwent a physical examination.  The report of that examination shows that the applicant had a right knee operation in July 1945 at the 61st Station Hospital, and that there was no abnormality other than a scar.  That report shows that the applicant claimed some rheumatic ache at times and stiffness.  However, his ailment was not considered disabling.  Block 11 (List all significant diseases, wounds, and injuries) of that report does not show that he had been wounded in action.

Army Regulation 600-8-22 provides that the Purple Heart is awarded for a wound 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, and the medical treatment must have been made a matter of official record.

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 3 November 1945, the date the applicant was separated from the Army.  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 postmarked 2 January 1999 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

__mkp___  ___gfg__  __le____  CONCUR WITH DETERMINATION

		Loren G. Harrell
		Director

INDEX

CASE ID	AR1999021321	
SUFFIX		
RECON	YYYYMMDD	
DATE BOARDED	19990623	
TYPE OF DISCHARGE	(HD, GD, UOTHC, UD, BCD, DD, UNCHAR)	
DATE OF DISCHARGE	YYYYMMDD	
DISCHARGE AUTHORITY	AR . . . . .  	
DISCHARGE REASON		
BOARD DECISION	( DENY )	
REVIEW AUTHORITY		
ISSUES         1. 142.00		
2.  107.00		
3.		
4.		
5.		
6.