APPLICANT REQUESTS:  Award of the Purple Heart.  He states he was wounded as a result of enemy action “at Camp Elsenborn, Belgium during the Battle of the Bulge, January 1945.”

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 RECORDS:  The applicant’s military records were lost or destroyed in the National Personnel Records Center fire of 1973.  Information herein was reconstructed from documents provided by the applicant and information contained in service medical records provided by the VA.

The applicant entered active duty in 1943 and in January 1945 was assigned to an engineer battalion in the European Theater of Operations.  According to his original service medical records, obtained from the VA, the applicant sustained a laceration to his left knee on 25 January 1945 at Camp Elsenborn, Belgium when he tripped on a “hidden object and fell on shattered window glass frozen in snow while scouting for boiler to build shower unit.”  The injury is consistently reported as accidentally incurred and he was admitted to medical facilities as a non-battle casualty.

He was released from active duty in August 1946.

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.  The applicant’s injury was accidentally incurred and not the result of hostile actions, as such he is not entitled to award of 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 in August 1946, the date he was initially released from active duty.  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 February 1993 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

                      CONCUR WITH DETERMINATION




		Karl F. Schneider
		Acting Director