MEMORANDUM OF CONSIDERATION

	IN THE CASE OF: 

	BOARD DATE:           27 SEPTEMBER 2001                   
	DOCKET NUMBER:   AR2001058719

	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. Raymond V. O’Connor		Chairperson	
	Mr. Eric N. Andersen		Member	
	Mr. Thomas E. O’Shaughnessy		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 and that his records be corrected to reflect that he sustained a gunshot wound to his left forearm as a result of hostile action.  He states that the gunshot wound that he received to his forearm in 1944 was not a self-inflicted wound.  He states that he knew the record was incorrect but thought it could be easily corrected.  In support of his request he submits a statement from his personal physician "indicating that the entrance and exit wounds on [his] left forearm do not appear to be self-inflicted…."

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 apparently lost or destroyed during the 1973 fire at the National Personnel Records Center in St. Louis.  Information contained herein was reconstructed from alternative sources.

He entered active duty on 20 February 1943.  He served briefly in the Mediterranean Theater of Operations and in June 1944 was transferred to the European Theater of Operations.  

According to an August 1944 clinical record form from the 77th Station Hospital in Europe, the applicant was admitted to the hospital for a superficial gunshot wound to his left forearm.  The report notes that on 31 July 1944 the applicant "was showing Mausser pistol to another soldier when he accidentally discharged it."  

The applicant returned to the United States in November 1945 and on 
28 November 1945 was honorably discharged as a result of demobilization.  His WD AGO Form 53-55 (Enlisted Record and Report of Separation), 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 unsigned statement, submitted in support of his request to this Board, is dated June 2001.  The typed statement describes the 7-centimeter scar on the applicant's left forearm and notes "in our opinion this does not appear to be a self-inflicted wound."

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.

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.

In the absence of more conclusive evidence, the June 2001 statement of the applicant's personal physician that in his "opinion this does not appear to be a self-inflicted wound" is insufficient to conclude that the wound was the result of hostile action and as such there is no basis for an award of the Purple Heart.

DISCUSSION:  The alleged error or injustice was, or with reasonable diligence should have been discovered on 28 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 8 June 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.  In order to justify correction of a military record the applicant must show to the satisfaction of the Board, or it must otherwise satisfactorily appear, that the record is in error or unjust.  The applicant has failed to submit evidence that would satisfy that requirement.  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

__RVO __  __ENA__  __TEO__  CONCUR WITH DETERMINATION

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

INDEX

CASE ID	AR2001058719	
SUFFIX		
RECON	YYYYMMDD	
DATE BOARDED	20010927	
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.