PROCEEDINGS

	IN THE CASE OF:       

	BOARD DATE:           10 November 1999
	DOCKET NUMBER:   AR1999027620

	I certify that hereinafter is recorded the true and complete record of the proceedings 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:

	Ms. Irene N. Wheelwright		Chairperson	
	Mr. Curtis L. Greenway		Member	
	Ms. Margaret V. Thompson		Member	

	The applicant and counsel if any, did not appear before the Board.

	The Board considered the following evidence:

	Exhibit A - Application for correction of military 
                       records
	Exhibit B - Military Personnel Records (including
	            advisory opinion, if any)

FINDINGS:

1.  The applicant has exhausted or the Board has waived the requirement for exhaustion of all administrative remedies afforded by existing law or regulations.

2.  The applicant requests, in effect, reconsideration of his previous appeal to correct his record to show that he was separated due to physical disability retirement.  In addition, he requests that his DD Form 214 (Report of Separation) be corrected to show that he was awarded the Purple Heart and the Combat Infantryman Badge and that his rank at separation be changed to private first class (PFC).  

3.  The applicant states, in effect, that he was incapacitated for any duty purpose and that he was unable to understand the basis for his separation.  He again cites his VA disability rating.  He contends that his rank should have been private first class because he was a squad leader and volunteer point man on patrols.

4.  The applicant’s case is reopened in accordance with the Army Board for Correction of Military Records Reconsideration Project criteria.  Incorporated herein by reference are military records which were summarized in a memorandum of consideration (MOC) prepared to reflect the Board's prior consideration of his case on 21 September 1994 (COPY ATTACHED).  The applicant’s interim requests were properly closed by administrative action.  

5.  As noted in the MOC the applicant's military records were lost or destroyed in the 1973 fire at the National Personnel Records Center (NPRC) his reconstructed records consist mostly of copies of his service medical records which appear reasonably intact.  He was awarded the Purple Heart by General Orders Number 11, 45th Surgical Hospital dated 11 May 1953.  Those orders list his rank as corporal.

6.  Although his interim requests for reconsideration were properly closed administratively, it is noted that in his disagreements with the Board's earlier decision the applicant observed the he did not know about the three year time limit, that it is never too late to correct an injustice  and that he should be given the benefit of the doubt.

7.  The statute under which the Board was established provides that an application must be filed within 3 years after discovery of the alleged error or injustice.  The Board may excuse a failure to timely file if it finds it to be in the interest of justice. In this case the Board determined that the application was not filed within the time required and that it was not in the interest of justice to excuse the failure to timely file.  Prior to reaching this determination the Board looked at the entire file. It was only after all aspects of the case 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 error or injustice existed it undoubtedly would have recommended relief in spite of the failure to submit an application within the 3 year time limit.  The Board has never denied an application simply because it was not submitted within 3 years.
6.  The Awards Branch, Total Army Personnel Command furnished a copy of Headquarter 27th Infantry Division General Orders 120 dated 30 May 1953 which awarded the applicant the Combat Infantryman Badge (CIB).  Those orders list his rank as "PVT-2."
  
CONCLUSIONS:

1.  The applicant has been awarded the Purple Heart and CIB and they should be listed on his separation document.

2.  Aside from the DD Form 214 and the two general orders mentioned above  there is no (non-medical) evidence of record  to show the applicant's rank.  The presumption of regularity in governmental affairs is a principle of law that must be applied in such cases.  Applicants to this Board have a responsibility to demonstrate by evidence that an error or an injustice exists.  Furthermore, the orders for the CIB, prepared by his own regiment shortly after he had been wounded, show his rank as private (E-2).  

3.  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.

4.  Although the failure to timely file was cited in the original decision, a reasonably alert reading of that document would reveal that the VA rating was considered, but that it does not make any difference.  The statutory and regulatory basis for that decisions were displayed.  Furthermore, the VA is required by law to give the individual the benefit of the doubt, whereas, as mentioned above, this Board must presume regularity. 

5.  In view of the foregoing, the applicant’s records should be corrected as recommended below.

RECOMMENDATION:

1.  That all of the Department of the Army records related to this case be corrected by correcting the DD Form 214 of the individual concerned to show that  he was authorized the Purple Heart and the Combat Infantryman Badge.

2.  That so much of the application as is in excess of the foregoing be denied.

BOARD VOTE:  

__inw___  __clg____  _mvt____  GRANT AS STATED IN RECOMMENDATION

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION

		_Irene N. Wheelwright_______________
		        CHAIRPERSON

INDEX

CASE ID	AR1999027620	
SUFFIX		
RECON		
DATE BOARDED	19991110	
TYPE OF DISCHARGE		
DATE OF DISCHARGE		
DISCHARGE AUTHORITY		
DISCHARGE REASON		
BOARD DECISION	MODIFY	
REVIEW AUTHORITY		
ISSUES         1.	107.00	
2.	108.04	
3.	129.00	
4.		
5.		
6.