MEMORANDUM OF CONSIDERATION

	IN THE CASE OF: 

	BOARD DATE:  1 March 2001
	DOCKET NUMBER:  AR2000050463

	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	
	Mr. Lee Cates		Analyst	

  The following members, a quorum, were present:

	Mr. John H. Kern		Chairperson	
	Mr. Curtis L. Greenway		Member	
	Mr. Richard T. Dunbar		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 General Discharge (GD) under honorable conditions be upgraded to fully honorable.  In support of his claim, he submits a copy of his DD Form 214 (Report of Separation from the Armed Forces of the United States), dated 16 May 1953, a Department of Veterans Affairs Rating Sheet, dated 12 April 1954 which indicates a combined service-connected disability rating of 10 percent for arthritis and 0 percent for scar, gun shot wound (GSW).

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 Records Center fire of 1973.  Information herein was obtained from the record of his trial by court-martial and from partially reconstructed medical records.

On 17 May 1950, he enlisted in the Army for 3 years.  He completed his required training and was awarded an Anti-Aircraft Artillery military occupational specialty. 

During his enlistment, he spent 1 year, 4 months and 10 days in Korea and Japan.  

On 2 June 1951, while assigned to a unit in Munsan, Korea, he was accidently shot in the foot by another soldier.  He was hospitalized in Osaka, Japan on        6 June and returned to duty on  1 August 1951.

On 7 October 1952, at Camp Stewart, Georgia and in consonance with his plea,
he was convicted by a general court-martial of stealing a set of automobile fender skirts from another soldier.  His sentence consisted of confinement at hard labor (CHL) for 4 months (suspended) and a forfeiture of $60 pay for 4 months.  (CHL automatically included a reduction to the lowest grade.)

On 13 May 1953, a physical examination cleared the applicant for separation.

On 16 May 1953, he was separated from active service and issued a GD certificate for reasons not further identified in the available records.  His separation document indicates he had 3 years of creditable service. He was entitled to award of the United Nations Service Medal, the Combat Infantryman Badge, the Korean Service Medal with 3 bronze service stars and the Army of Occupation Medal (Japan).

Army Regulation 635-200 (Personnel Separations – Enlisted Personnel), paragraph 3-7 provides that an honorable discharge is a separation with honor.  The honorable characterization is appropriate when the quality of the member's service generally has met the standards of acceptable conduct and performance of duty for Army personnel, or is otherwise so meritorious that any other characterization would be inappropriate.

Army Regulation 600-8-22 provides, in pertinent part, that the Purple Heart is awarded for a wound 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, 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 16 May 1953, the date he was separated from active service.  The time for the applicant to file a request for correction of any error or injustice expired on 16 May 1956.

The application is dated 18 October 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

__jk___  ___cg_____  ___rd___ CONCUR WITH DETERMINATION

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

INDEX

CASE ID	AR2000050463	
SUFFIX		
RECON	YYYYMMDD	
DATE BOARDED	20010301	
TYPE OF DISCHARGE	(HD, GD, UOTHC, UD, BCD, DD, UNCHAR)	
DATE OF DISCHARGE	YYYYMMDD	
DISCHARGE AUTHORITY	AR . . . . .  	
DISCHARGE REASON		
BOARD DECISION	(NC, GRANT , DENY, GRANT PLUS)	
REVIEW AUTHORITY		
ISSUES         1.110	Upgrade to HD	
2.		
3.		
4.		
5.		
6.