MEMORANDUM OF CONSIDERATION

	IN THE CASE OF: 

	BOARD DATE:            11 July 2000     
	DOCKET NUMBER:   AR1999033531

	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 J. Wagner		Chairperson	
	Mr. John Saputo		Member	
	Mr. Roger Able		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:  In effect, that his service medical records be corrected to reflect that his December 1944 injury to his right forearm was the result of enemy action.  He states that contrary to what his service medical records indicate, he was in a “fox hole” when “part of a tree fell on me, causing injury due to enemy fire.”  He notes that the “officer in charge did not know the facts” and that his injury was not the result of an “accident” but rather “was due to enemy action.”  He submits no evidence in support of his request and states that he discovered the error when he received copies of his records in October 1999.

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 lost or destroyed as a result of the 1973 fire at the National Personnel Records Center in St. Louis.  Information contained herein was reconstructed from alternative sources, including copies of the applicant’s original service medical records.

The applicant entered active duty on 13 January 1942 and arrived in the European Theater of Operations in February 1944.

His original service medical records indicate that on 16 December 1944, while at the “bivoac area” a “log fell on [soldier’s] forearm, while he was engaged in building a road.”  That information is repeated on several medical forms authenticated by a variety of different medical personnel.

The applicant returned to the United States in December 1945 and on 
6 December 1945 was honorably discharged.  Item 34 (wounds received in action) on his WD AGO Form 53-55 (Enlisted Record and Report of Separation Honorable Discharge) reflects “NONE.”  The applicant authenticated his separation document with his signature and thumb print.

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 6 December 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 5 November 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

___rjw__  ___js___  ___ra___  CONCUR WITH DETERMINATION

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

INDEX

CASE ID	AR1999033531	
SUFFIX		
RECON	YYYYMMDD	
DATE BOARDED	20000711	
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.