MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:    

	BOARD DATE:            31 JULY 2001
	DOCKET NUMBER:   AR2001056899

	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. Walter T. Morrison		Chairperson	
	Mr. Arthur A. Omartian		Member	
	Mr. John T. Meixell		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 also asks that his height, recorded in block 15 of his WD AGO Form 53-55 (Enlisted Record and Report of Separation), be corrected to reflect that his is 6 feet tall vice 5 foot 9 ½ inches. In support of his request he submits a self-authored statement indicating he sustained shrapnel wounds to his left forearm and right shoulder in April 1945.  He states that he was treated by a field medic and remained with his unit.

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 likely lost or destroyed during the 1973 fire at the National Personnel Records Center.  Information contained herein was reconstructed from alternative sources, including information provided by the applicant.

He entered active duty on 5 November 1942 and served overseas as a surgical technician between March 1944 and October 1945.  On 16 November 1945 he was honorably discharged.  His WD AGO Form 53-55, which he authenticated with his signature and thumbprint, does not reflect entitlement to the Purple Heart and item 34 (wounds received in action) reflects "None."  Item 15 (height) indicates his height at the time of his separation was 5 foot 9 1/2 inches.

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.  Wounds so slight that they did not require treatment by a medical officer do not meet the requirements for award of the Purple Heart.

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.

There is no evidence, and the applicant has not provided any, that he was wounded as a result of hostile action during World War II and as such there is no basis for award of the Purple Heart.  Additionally, the applicant has presented no evidence that the height recorded in item 15 of his separation report was erroneously recorded at the time his separation report was completed and authenticated by him.
DISCUSSION:  The alleged error or injustice was, or with reasonable diligence should have been discovered on 16 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 was post marked in April 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.  Prior to reaching this determination the Board looked at the applicant's entire file.  It was only after all aspects of his case had been considered and it had been concluded that there was no basis to recommend a correction of his record that the Board considered the statute of limitations.  Had the Board determined that an error or injustice existed it would have recommended relief in spite of the applicant's failure to submit his application within the three-year time limit.

BOARD VOTE:

________  ________  ________  EXCUSE FAILURE TO TIMELY FILE

________  ________  ________  GRANT FORMAL HEARING

__WTM _  __AAO __  __JTM __  CONCUR WITH DETERMINATION

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

INDEX

CASE ID	AR2001056899	
SUFFIX		
RECON	YYYYMMDD	
DATE BOARDED	20010731	
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.