MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:   

	BOARD DATE:           16 December 1999                  
	DOCKET NUMBER:   AR199905047

	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. W. W. Osborn, Jr.		Analyst	

  The following members, a quorum, were present:

	Mr. Fred K. McCoy		Chairperson	
	Mr. Raymond V. O'Connor, Jr.		Member	
	Mr. Stanley Kelley		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 to authorize a formal hearing, recommend that the records be corrected without a formal hearing, or to deny the application without a formal hearing if it is determined that insufficient relevant evidence has been presented to demonstrate the existence of probable material error or injustice.

	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:  Reconsideration of his previous request to correct his records by awarding him the Purple Heart.

APPLICANT STATES:  In effect that he was wounded while in action against the enemy on 13 January 1945.  He writes “a piece of metal ripped a 3 inch tear in my forearm.”  He contends that the Board’s prior review did not give proper weight to the affidavit of his wartime companions, including the medic who bandaged his wound.  He submits numerous documents including after action reports that show the unit was engaged in combat on the specified date and morning reports that show the applicant and the medic who furnished the affidavit were members. 

NEW EVIDENCE OR INFORMATION:  Incorporated herein by reference are military records which were summarized in a memorandum prepared to 
reflect the Board's original consideration of his case on 2 December 1998 (COPY ATTACHED).

The documents submitted are new evidence that requires Board consideration.

The affidavit by the medic states, in part, that he hopes it will get the applicant a Purple Heart.  Concerning the wound and treatment, it relates that the writer recalls treating the applicant during the Battle of the Bulge, that the treatment consisted of applying a sulfanitamide field bandage and that an evacuation-medical treatment tag would not have been filled out.  A hand written note from the same individual states “I do now recall taking care of you in combat.”  The other individual basically states that he trusts the integrity of the former medic.

Among the documents submitted are copies of several photographs.  They do nothing to substantiate the applicant’s contention that he was wounded in action against the enemy.

DISCUSSION:  Considering all the evidence, allegations, and information presented by the applicant, together with the evidence of record, applicable law and regulations, it is concluded:

1.  The statements of witnesses are normally insufficient as the sole basis for an award of the Purple Heart because it does nothing to overcome the regulatory requirement that there be a record of treatment.  In this case, there is no satisfactory explanation to account for the discrepancy between the current assertions that the applicant was wounded as the result of combat with the enemy and his 1952 Air Force separation physical which by the applicant’s own account reads “Three inch scar. Right Arm. 1944.  Cut from an Army tank.  Fell on sharp edge.”
2.  Prior to reaching the determination that it was not in the interest of justice to excuse the failure to timely file, the Board looked at the entire file.  It was only after all other aspects had been considered and it had been concluded that there was no basis to recommend a correction of the records that the Board considered the statute of limitations.  Had the Board determined that an error or injustice existed it undoubtedly would have recommended relief in spite of the failure to submit the application within the 3 year time limit.  The Board has never denied an application simply because it was not submitted within the required time.

3.  Although the failure to timely file was cited in the original decision a reasonably alert reading of that document would reveal that the applicant’s case was fully considered.  Denial of the request based on the failure to timely file did not deprive the applicant of consideration of the merits of his case. 

4.  The overall merits of the case, including the latest submissions and arguments are insufficient as a basis for the Board to reverse its previous decision.

5.  In view of the foregoing, there is no basis for granting the applicant's request.

DETERMINATION:  The applicant has failed to submit sufficient relevant evidence to demonstrate the existence of probable error or injustice.

BOARD VOTE:

________  ________  ________  GRANT

________  ________  ________  GRANT FORMAL HEARING

___fkm __  ___rvc__  ____sk__  DENY APPLICATION

						Loren G. Harrell
						Director

	AR1999025047	
		
RECON		
DATE BOARDED	19991216	
TYPE OF DISCHARGE		
DATE OF DISCHARGE		
DISCHARGE AUTHORITY		
DISCHARGE REASON		
BOARD DECISION	DENY	
REVIEW AUTHORITY		
ISSUES         1.	107.00	
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