MEMORANDUM OF CONSIDERATION

	IN THE CASE OF: 

	BOARD DATE:            6 July 2000                     
	DOCKET NUMBER:   AR1999028011

	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. Carl W. S. Chun		Director	
	Ms. Gale J. Thomas		Analyst	

The following members, a quorum, were present:

	Mr. Calvin M. Fowler		Chairperson	
	Mr. Ernest M. Willcher		Member	
	Mr. John P. Infante		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: That his records be corrected to show he was awarded the Purple Heart and Combat Medical Badge.  The applicant states that 
in May 1951, while stationed in Korea he received a head injury which entitles him to the Purple Heart; and that he is also eligible for the Combat Medical Badge.  In support of his request the applicant submits a copy of his DD Form 214 (Certificate of Release or Discharge from Active Duty), a Command Report from June 1951, a medical slip concerning recurrent headaches, a statement concerning his head injury from his brother, and a 22 May 1951 Morning Report. 

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 lost or destroyed in the National Personnel Center fire of 1973.  Information herein was obtained from alternate sources.

On 1 December 1950, he reenlisted in the Regular Army for a period of 3 years. 

The 15 June 1951, Command Report, submitted by the applicant, provides background information on the tactical operations of the 25th Infantry Division during April 1951.  This portion of the report lists no specific units or individuals involved in the operations. 

An 11 December 1951 morning report shows that the applicant was assigned as a “Medical Aid Man” with Company B, 65th Engineer Combat Battalion.  Various morning reports contained in his records indicate he was assigned to various combat engineer battalions while in Korea.    

A 26 November 1952, medical slip shows the applicant was seen for recurrent headaches from a skull injury received in Korea, however there is no indication of the source of this injury, nor is there documentation to show it was sustained as a result of hostile action.

On 18 December 1953, he was honorably discharged by reason of expiration of term of service.  His DD Form 214 indicates he served approximately 17 months overseas and was awarded the Korean Service Medal; and in item 28 (Wounds), it shows the annotation of “None.”  

On 29 March 1994, the applicant’s brother submitted a sworn statement in which he states that he was in Korea at the same time as the applicant, saw his head injury the day after he was wounded, and was told of the enemy ambush.  He states that his brother refused to go for treatment, in fear of leaving him in Korea. 

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 indication in the applicant’s available records to substantiate his claim that he received a head injury as the result of hostile action.

Army Regulation 600-8-22 provides, in pertinent part, that the Combat Medical Badge (CMB) is awarded to medical department personnel who are assigned or attached to a medical unit of company or smaller size that is organic to an infantry unit of brigade, regimental or smaller size which is engaged in active ground combat.  Battle participation credit is not sufficient; the infantry unit must have been in contact with the enemy.  The applicant was a member of an engineer battalion and therefore not eligible for the CMB.

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 18 December 1953, the date the applicant was discharged.  The time for the applicant to file a request for correction of any error or injustice expired on 18 December 1956.

The application is dated 11 May 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

___cmf__  ___emw__  __jpi____  CONCUR WITH DETERMINATION

    Carl W. S. Chun
    Director, Army Board for Correction
	                of Military Records

INDEX

CASE ID	AR1999028011	
SUFFIX		
RECON	YYYYMMDD	
DATE BOARDED	20000706	
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.		
3.		
4.		
5.		
6.