MEMORANDUM OF CONSIDERATION
IN THE CASE OF:
BOARD DATE: 19 November 1998
DOCKET NUMBER: AC97-07314B
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.
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 sustained a shrapnel wound to his lower left leg on 23 February 1945 while engaged in combat in the Philippines. In support of his request the former servicemember submits two letters supporting his request for award of the Purple Heart and several newspaper articles regarding a 50th anniversary reunion of the servicemembers unit. (Note: The applicant died after submission of his request to this Board and his entitlement to the Purple Heart is now being pursued by his daughter.)
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 servicememberss military records were apparently lost or destroyed during the 1973 fire at the National Personnel Records Center. Information contained herein was reconstructed from alternative sources, including documents provided by the servicemember and information contained in his VA files.
He entered active duty on 20 January 1942 and served in the Pacific Theater of Operations as an infantry scout between 1944 and 1945. He was released from active duty on 21 August 1945 as a result of demobilization. His WD AGO Form 53-55 (report of separation), 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.
Subsequent to the servicemembers separation he was granted a service connected disability rating for partial amputation of his middle finger and a non-compensable disability rating for malaria. The servicemember was also granted non-service connected ratings for a variety of ailments. His records are silent, however, regarding any wounds sustained as a result of hostile action.
Beginning in 1986 the servicemember had extensive contact with the VA regarding a special homebound disability benefit not based on any service connected disability. The extensive correspondence, which details his disabilities, makes no mention of a shrapnel wound to his left leg or any wounds sustained as a result of hostile action.
The statements submitted in support of the servicemembers request are dated in November and December 1996 apparently following the units 50th anniversary reunion. One statement indicates the author was the C.O.s driver and while he could not remember the place, time or date he did remember that the applicant was hit in one of his legs. The second letter was from an individual who indicated he was in charge of [the] patrol from May to June 1945 and recalled the applicant being wounded by Japanese shell fire...[in the] summer [of] 1945.
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 evidence, nor has the applicant provided any, which confirms 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 21 August 1945, the date of his discharge. However, in view of the fact that the Board was not established until 2 January 1947 the applicants 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 9 December 1996 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
__FNE___ __TAP___ __BJE___ CONCUR WITH DETERMINATION
Loren G. Harrell
Director
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