RECORD OF PROCEEDINGS

	IN THE CASE OF:  

	BOARD DATE:            27 January 2004
	DOCKET NUMBER:   AR2003088949

	I certify that hereinafter is recorded the true and complete record of the proceedings of the Army Board for Correction of Military Records in the case of the above-named individual.  

	Mr. Carl W. S. Chun		Director	
	Ms. Carolyn Wade		Analyst	

  The following members, a quorum, were present:

	Mr. Arthur A. Omartian		Chairperson	
	Mr. Lester Echols		Member	
	Ms. Yolanda Maldonado		Member	

	The applicant and counsel if any, did not appear before the Board.

	The Board considered the following evidence:

	Exhibit A - Application for correction of military records.

	Exhibit B - Military Personnel Records (including advisory opinion, if any).

THE APPLICANT'S REQUEST, STATEMENT, AND EVIDENCE:  

1.  The applicant requests that he be awarded the Purple Heart.

2.  The applicant states that he was the charge-of-quarters (CQ), not corporal of the guard.  He states that the unit turned off the light plant at midnight.  He further states that since a candle was the only light an intruder mistook him as the enemy and attempted to kill him.  The applicant also states that we are fighting an undeclared war and awarding the Purple Heart to Soldiers wounded by their own men.  He concludes that he fought in a declared war, was injured, and that he deserves a Purple Heart.

3.  The applicant provides a copy of a line of duty statement, dated 18 July 1944, and a letter from the Military Order of the Purple Heart forwarding his case.

CONSIDERATION OF EVIDENCE: 

1.  The applicant’s military records are not available to the Board for review.  A fire destroyed approximately 18 million service members’ records at the National Personnel Records Center in 1973.  It is believed that the applicant’s records were lost or destroyed in that fire.  This case is being considered using reconstructed records which primarily consist of two Hospital Admission Card entries from the Office of The Surgeon General.  

2.  The applicant is requesting correction of an error or injustice which occurred in January 1946.  The application submitted in this case is dated 22 May 2002 and was received in this office on 9 April 2003.  

3.  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.  This provision of law allows the Army Board for Correction of Military Records (ABCMR) to excuse failure to file within the 3-year statute of limitation if the ABCMR determines that it would be in the interest of justice to do so.  In this case, the ABCMR will conduct a review of the merits of the case to determine if it would be in the interest of justice to excuse the applicant’s failure to timely file.

4.  On 13 December 1943, the applicant was a 20-year-old enlisted Soldier serving in North Africa when he was admitted to the 23rd Station Hospital for treatment of encephalitis.  He was returned to duty following treatment.

5.  On 15 July 1944, the applicant was serving in the Asiatic-Pacific Theater when he was admitted to the 111th Station Hospital for 32 days.  He was treated for a compound fracture of the Tibia shaft resulting from a non-battle gunshot wound.  It was also noted that the applicant was intentionally shot by another person (not enemy, or guard, sentry, or Military Police).  Following treatment the applicant was returned to duty.

6.  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:  (1) the wound was the result of hostile action; (2) the wound required medical treatment; and (3) the medical treatment was made a matter of official record.

DISCUSSION AND CONCLUSIONS:

1.  Although the applicant was twice hospitalized for medical treatment, neither time qualifies him for award of the Purple Heart.  The first time he was treated for encephalitis.  The second time he was treated for a fractured Tibia resulting from a non-battle gunshot wound.

2.  Records show the applicant should have discovered the error or injustice now under consideration in January 1944, the date of his separation from active duty. However, the ABCMR was not established until 2 January 1947.  As a result, the time for the applicant to file a request for correction of any error or injustice expired on 1 January 1950.  However, the applicant did not file within the 3-year statute of limitations and has not provided a compelling explanation or evidence to show that it would be in the interest of justice to excuse the failure to timely file.

BOARD VOTE:

________  ________  ________  GRANT RELIEF 

________  ________  ________  GRANT FORMAL HEARING

__aao___  __le____  __ym____  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

The Board determined that the evidence presented and the merits of this case are insufficient to warrant the relief requested, and therefore, it would not be in the interest of justice to excuse the applicant's failure to timely file this application within the 3-year statute of limitations prescribed by law.  

			Arthur A. Omartian
		______________________
		        CHAIRPERSON

INDEX

CASE ID	AR2003088949	
SUFFIX		
RECON		
DATE BOARDED	20040127	
TYPE OF DISCHARGE		
DATE OF DISCHARGE		
DISCHARGE AUTHORITY		
DISCHARGE REASON		
BOARD DECISION	(DENY)	
REVIEW AUTHORITY		
ISSUES         1.	107.0015	
2.		
3.		
4.		
5.		
6.