MEMORANDUM OF CONSIDERATION

	IN THE CASE OF: -

	BOARD DATE:           30 March 2000      
	DOCKET NUMBER:   AR1999032300

	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.  

	Ms. Deborah L. Brantley		Senior Analyst	

  The following members, a quorum, were present:

	Ms. Barbara J. Ellis		Chairperson	
	Mr. Hubert O. Fry, Jr.		Member	
	Mr. Ernest W. Lutz, Jr.		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 states he believes he is entitled to the award because he was “hit with incoming shrapnel wound to [his] left leg” prior to crossing the Rhine River.  In support of his request he submits a statement from another former soldier.

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 23 January 1940 and served in the European Theater of Operations between October 1942 and October 1945.  On 28 October 1945 he was released from active duty as a result of demobilization.  His separation document, 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.”  His duty title is listed as a “truck driver” and his unit of assignment as Headquarters and Service Troop, 6th Cavalry, Recon Squadron.

An individual who indicates he was the “personnel officer of the 6th Cavalry, 28th Squadron, Mechanized, during World War II authored the letter submitted in support of the applicant’s request.  The statement was dated 1 October 1999.  The author notes that he was “privy to information of combat casualty’s during World War II” and that the applicant “being from my vicinity before joining the Army” gave him an added incentive to “keep close information on his activity.”  He notes that he remembers the applicant receiving a wound to “the groin of one of his legs” and that it “was serious enough to cause him to lay up for a while….”

In January 1946 the applicant was granted disability compensation for a “nervous condition.”  The VA compensation document also noted that the applicant was granted a non-compensable service connection determination for a cyst on the back of his neck.  The document makes no mention of any wounds sustained as a result of hostile action.

In 1978 the applicant petitioned officials at the Army Reserve Personnel Center for his awards and decorations.  He did not mention entitlement to the Purple Heart in that correspondence.

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.  There is no medical evidence, nor has the applicant provided any, that he was wounded as a result of hostile action during World War II.

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 28 October 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 7 October 1999 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

___bje_  ___hof__  __ewl___  CONCUR WITH DETERMINATION

		Karl F. Schneider
		Director, Army Review Boards Agency 

INDEX

CASE ID	AR1999032300	
SUFFIX		
RECON	YYYYMMDD	
DATE BOARDED	20000330	
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.