MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:     

	BOARD DATE:           5 April 2001                   
	DOCKET NUMBER:   AR2001053691

	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:

	Ms. June Hajjar		Chairperson	
	Ms. Celia L. Adolphi		Member	
	Mr. Harry B. Oberg		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 entitlement to award of the Purple Heart (PH).  He indicates that “In March 1945, while in combat in Germany, I jumped on a river bank and fell, striking my knee against a rock”.

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 available military records show:

On 3 June 1944, he entered on active duty as a commissioned officer of the Army Reserve.

During the period 1 March to 18 June 1945 (3 months and 7 days), he served in the European Theater of Operations (ETO).

On 5 March 1946, a WD AGO Form 63 (Report of Physical Examination) indicates “The nature of this officer’s disability is diagnosed as (1) injuries, secondary results of, manifested by aching and weakness of right knee, sequel to twisting injury received in fight in 1943 while playing authorized football … (2) Spondylolisthesis, 1st degree, L5 and S1, cause undetermined”.

On 19 March 1946, a WD AGO Form 63 (Report of Physical Examination) indicates the individual concerned fell, striking his knee against a rock.  The report concluded that “the nature of this officer’s disability is diagnosed as (1) injuries, secondary results of, manifested by aching and weakness of right knee, sequel to twisting injury received in fight in 1943 while playing authorized football at Fort Riley, Kansas and arthrotomy for removal of lateral cartilage 17 August 1945 at ASF Regional Station Hospital, Fort Bragg, N.C. (2) Spondylolisthesis, 1st degree, L5 and S1, cause undetermined.”

On 19 March 1946, he was honorably separated based on his physical disability. His separation document indicates he had 1 year, 5 months and 9 days of creditable service.

On 21 January 1988, officials at the Army Reserve Personnel Center, St. Louis, Missouri advised the applicant that, in order to verify his entitlement to award of the Silver Star and the PH, he should provide a copy of the general order or the general order number and the name of the issuing headquarters. 

Army Regulation 600-8-22  (Military Awards) 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 discovered on 19 March 1946, the date the applicant was relieved from active duty.  Since the Correction Board was established on 2 January 1947, the time for the applicant to file a request for correction of any error or injustice expired on 2 January 1950.

The application was received on 21 January 2001 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

_jh_____  _hbo____  _cla____  CONCUR WITH DETERMINATION

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

INDEX

CASE ID	AR2001053691	
SUFFIX		
RECON		
DATE BOARDED	20010405	
TYPE OF DISCHARGE		
DATE OF DISCHARGE		
DISCHARGE AUTHORITY		
DISCHARGE REASON		
BOARD DECISION	DENY	
REVIEW AUTHORITY		
ISSUES         1.	107.00	
2.		
3.		
4.		
5.		
6.