MEMORANDUM OF CONSIDERATION

	IN THE CASE OF: 

	BOARD DATE:            5 October 2000    
	DOCKET NUMBER:   AR2000043193

	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:

	Shirley Powell		Chairperson	
	Elzey J. Arledge		Member	
	Jaime Perez		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 reflect award of the Purple Heart.  He states that he was shot in both legs and also had a head injury in 1943.  He submits no evidence in support of his request.

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 partially destroyed during the 1973 fire at the National Personnel Records Center.  Information contained in the remaining partially burned documents indicate:

The applicant entered active duty on 10 October 1941 and was discharged by reason of demobilization on 24 November 1945.  He served in the European Theater of Operations between May 1943 and November 1945.  His WD AGO Form 53-55 (Enlisted Record and Report of Separation Honorable Discharge), which he authenticated with his signature and thumb print, does not reflect entitlement to the Purple Heart and item 34 (wounds received in action) 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.  There is no evidence, and the applicant has not provided any, which confirms he was ever wounded as a result of hostile action during World War II.

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 24 November 1945, the date he was discharged from active duty and signed his report of separation.  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 dated 24 May 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

___sp___  ___jp___  ___eja__  CONCUR WITH DETERMINATION

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

INDEX

CASE ID	AR2000043193	
SUFFIX		
RECON	YYYYMMDD	
DATE BOARDED	20001005	
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.