MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:   

	BOARD DATE:            18 January 2001  
	DOCKET NUMBER:   AR2000040710

	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. Deborah L. Brantley		Senior Analyst	

  The following members, a quorum, were present:

	Mr. John N. Slone		Chairperson	
	Mr. John T. Meixell		Member	
	Mr. Melvin H. Meyer		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 he was in a foxhole in Korea when an enemy mortar shell landed between his legs.  He states that it didn’t explode and he grabbed it and tossed it out of the foxhole.  He notes that the shell was still hot and as such burned his hands.  He states that his “hands were burnt bad and a medic came into our foxhole and put gobs of cream on [his] hands and bandaged them up.”  He states he then went back to his machine gun and continued fighting.  In support of his request he submits a copy of an undated newspaper report recounting information about the incident although the newspaper article does not mention that the applicant was wounded or injured at the time.

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 show:

He served an initial period of active duty between May 1949 and January 1950 when he was discharged because of dependency.

On 30 September 1950 the applicant returned to active duty.  He arrived in Korea in March 1951 where he performed duties as an infantryman and was awarded the Combat Infantryman Badge.  He remained in Korea until November 1951 when he returned to the United States via Japan.

On 6 December 1951 the applicant underwent a physical examination in preparation for his separation.  The examination makes no mention of any wounds sustained as a result of hostile action while in Korea.

On 8 December 1951 the applicant was honorably discharged.  His DD Form 214 (Report of Separation from the Armed Forces of the United States), which he authenticated, does not reflect entitlement to the Purple Heart and item 29 (wounds received as a result of action with enemy forces) reflects “NONE.”

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.

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 8 December 1951, the date the applicant was released from active duty and authenticated his separation document.  The time for the applicant to file a request for correction of any error or injustice expired on 8 December 1954.

The application is dated 4 April 2000 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

___jns__  ___jtm__  ___mhm__  CONCUR WITH DETERMINATION

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

INDEX

CASE ID	AR2000040710	
SUFFIX		
RECON	YYYYMMDD	
DATE BOARDED	20010118	
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.