MEMORANDUM OF CONSIDERATION

	IN THE CASE OF: 

	BOARD DATE:            28 November 2000  
	DOCKET NUMBER:   AR2000044992

	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:

	Ms. Margaret K. Patterson		Chairperson	
	Mr. John H. Kern		Member	
	Mr. Wilfred A. Hale		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 wounded during the invasion of Italy but never received the Purple Heart.  He notes that because he was black he “didn’t receive the medal” and that “a black soldier was not allowed to say much or to question authority.”  In a letter to President Clinton the applicant stated that his left boot was “knocked off [his] foot on the ship that was bombed.”  In support of his request he submits copies of letters from various government officials who have responded to his correspondence and a letter signed by his physician.

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 entered active duty on 18 November 1941 and served in the European Theater of Operations between March 1943 and October 1945.  On 4 November 1945 he was honorably discharged as a result of demobilization.  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.”

The applicant’s separation physical examination noted that the applicant was treated for a “laceration 5th finger – left” in 1944 and that his feet exhibited 
1 degree pes planus, which existed prior to his entry on active duty.

Following the applicant’s release from active duty he remained an active member of the United States Army Reserve until his name was placed on the retired rolls in September 1977.  Item 40 (wounds) on the applicant’s DA Form 20 (Enlisted Qualification Record), which he authenticated in December 1965, February 1972 and January 1976, is blank.

The undated letter, signed by the applicant’s physician and submitted in support of his request, notes that the applicant has been treated “for a toe injury he received in a combat zone during World War II, especially during the invasion of Italy on D-Day.”  The statement indicates the applicant “has always complained about this toe” and that the “nail grows out crooked and has to be trimmed and treated.”  The physician stated that in his opinion the applicant “deserves a Purple Heart or some compensation of this World War II injury.”

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 that he was injured 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 in September 1977, when the applicant’s name was placed on the retired rolls.  The time for the applicant to file a request for correction of any error or injustice expired in September 1980.

The application is dated 6 July 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

__jhk__  ___wah__  __mkp___  CONCUR WITH DETERMINATION

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

INDEX

CASE ID	AR2000044992	
SUFFIX		
RECON	YYYYMMDD	
DATE BOARDED	20001128	
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.