APPLICANT REQUESTS: Award of the Purple Heart for shrapnel wounds he received to his left leg while in Korea.
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 show:
He entered active duty in December 1947 and arrived in Korea in July 1950 where he performed duties as an infantryman and was awarded the Combat Infantryman Badge in August 1950.
A September 1950 intake social history report states he was admitted to the hospital on 20 September 1950 for acute conversion reaction. The report notes he reported a shrapnel injury which an aideman took care of.
Following his hospitalization reaction he was assigned to duty in Japan. He was discharged for the purpose of immediate reenlistment on 11 February 1952. His DD Form 214, issued at the time does not list the Purple Heart as an authorized award and the item pertaining to wounds received as a result of enemy action contains the entry NA.
He continued to serve on active duty until 31 March 1972 when he retired. Numerous physical examinations in his records are silent regarding any wounds and item 40 (wounds) on his DA Form 20 (enlisted qualification record) is blank.
Army Regulation 600-8-22 provides 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 evidence which confirms the applicant was wounded as a result of hostile action. However, if he had been wounded and the wound was so slight it did not require treatment by a medical officer he would not be entitled to 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 on 31 March 1972, the date of discharge. The time for the applicant to file a request for correction of any error or injustice expired on 31 March 1975.
The application is dated 20 July 1994 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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