MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:      

	BOARD DATE:            27 NOVEMBER 2001
	DOCKET NUMBER:   AR2001060448

	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. Kenneth H. Aucock		Analyst	

  The following members, a quorum, were present:

	Mr. Arthur A. Omartian		Chairperson	
	Mr. Lester Echols		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.

In his undated letter to the Army Reserve Personnel Command, the applicant requested award of the Bronze Star Medal.  He also stated that he was wounded the same time as his platoon sergeant, and the medic who treated him was killed.  He did not go back to the aid station because many of his comrades were killed, and many sustained wounds worse than his.  He has proof of his burns.  A Navy doctor took a piece of shrapnel from his left toe on a homeward bound ship. He never received anything for his wounds.   

The applicant submits a paragraph concerning the battle for Hitler’s Siegfried Line, in which a platoon sergeant, commenting on a book about that battle, stated that he was wounded during an attack, along with one of the two other men who stayed with him.  One of these individuals was the applicant.

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:

The applicant’s WD AGO Form 53-55 (Enlisted Record and Report of Service – Honorable Discharge) shows that the applicant was inducted into the Army on   25 April 1944, arrived in the European Theater of Operations (ETO) on                 4 December 1944, participated in three campaigns, and returned to the United States in May 1946.  The applicant was a rifleman with Company K,               417th Infantry Regiment of the 76th Infantry Division.  The applicant was discharged on 21 June 1946.  He was awarded the European-African-Middle Eastern Campaign Medal with three bronze service stars, the Good Conduct Medal, the World War II Victory Medal,  the Army of Occupation Medal with Germany clasp, and the Combat Infantryman Badge.  Item 24 (Wounds Received in Action) of the WD AGO Form 53-55, contains the word, “NONE.”  The applicant’s signature appears in item 56 of that form, attesting to its accuracy.

On 12 April 2001 the National Personnel Records Center authorized the issuance of the Bronze Star Medal to the applicant.   

Army Regulation 600-8-22 provides 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.
That regulation also provides for award of the Bronze Star Medal to each member of the Armed Forces of the United States who, after 6 December 1941 has been cited in orders or awarded a certificate for exemplary conduct in ground combat against an armed enemy between 7 December 1941 and                        2 September 1945.  The award of a Combat Infantryman Badge is considered as a citation in orders.

DA Pamphlet 672-1, Unit Citation and Campaign Participation Credit Register, shows that the 417th Infantry Regiment of the 76th Infantry Division, was awarded the Distinguished Unit Citation (now the Presidential Unit Citation) for its actions during the period 7-12 February 1945.

There is insufficient evidence to indicate that the applicant was wounded in action; consequently, there is no basis to correct his record to show that he was awarded 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.

DISCUSSION:  The alleged error or injustice was, or with reasonable diligence should have been discovered on 21 June 1946, the date of his discharge. 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 19 July 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.
NOTE:  The National Personnel Records Center authorized the issuance of the Bronze Star Medal to the applicant based on his award of the Combat Infantryman Badge.  The applicant served with the 417th Infantry Regiment during the period for which it was awarded the Distinguished Unit Citation.  The Army Review Boards Agency in St. Louis is requested to administratively correct the applicant’s record to show award of the Bronze Star Medal and the Presidential Unit Citation.

BOARD VOTE:

________  ________  ________  EXCUSE FAILURE TO TIMELY FILE

________  ________  ________  GRANT FORMAL HEARING

__AAO__  __LE____  __JTM __  CONCUR WITH DETERMINATION

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

INDEX

CASE ID	AR2001060448	
SUFFIX		
RECON	YYYYMMDD	
DATE BOARDED	20011127	
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.	107.00	
3.	61	
4.		
5.		
6.