APPLICANT REQUESTS: Correction of his military records to reflect award of the Purple Heart. He states he was wounded in the line of duty during World War II but never received the Purple Heart. In support of his request he submits a statement from his former platoon sergeant who indicated in a 1995 statement that the applicant sustained a shrapnel wound to his right lower abdomen on 15 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 applicants 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 his VA files.
He entered active duty on 3 January 1944 and served in the European Theater of Operations as an infantryman from November 1944 until March 1946.
On 31 March 1946 he was released from active duty as a result of demobilization. His WD AGO Form 53-55 (report of separation), which the applicant authenticated with his signature and thumb print, does not reflect the Purple Heart as an authorized award and item 34 (wounds received in action) reflects NONE.
In 1985 the applicant submitted a letter requesting award of the Bronze Star Medal based on his Combat Infantryman Badge. He made no mention of any wounds sustained as a result of hostile action nor entitlement to the Purple Heart. According to his VA records he initially filed a disability claim for residual of shrapnel in 1986. His initial request was denied. In 1987 the applicant had a foreign
body removed from the skin of his right lower abdomen. With resolution of reasonable doubt in favor of [the] veteran he was granted a 10 percent disability rating.
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.
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 31 March 1946, 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 19 September 1995 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
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