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Decision Text

ARMY | BCMR | CY1997 | 9709902
Original file (9709902.rtf) Auto-classification: Denied
APPLICANT REQUESTS: In effect, correction of his military records to reflect that he was wounded as a result of hostile actions during World War II. He states while in France during World War II he was shot and fell 15 to 20 feet from a pole hurting “every bone in [his] body.” He notes the absence of an entry on his separation document confirming he was wounded as a result of hostile action (item 34) has prevented him from obtaining “full benefits” from the VA. (Note: The applicant also indicates his name and address are misspelled on his separation document but provides no other details regarding the nature of the error or what correction needs to be made. As such that issue will not be addressed by the Board.)
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 apparently lost or destroyed as a result of a fire at the National Personnel Records Center in 1973. As such information contained herein has been reconstructed from alternative sources including information provided the VA.

The applicant entered active duty in January 1944 and arrived in the European Theater of Operations in November 1944.

According to documents from his service medical records, maintained in his VA file, the applicant was performing duties as a lineman in France on 3 July 1945 when his foot “got caught in some barbed wire…and he fell about 12 feet to the ground striking his left knee just over the patella on a sharp piece of rock and causing a wound.” Subsequent entries confirm the injury was accidental and not a result enemy action.

He returned to the United States in August 1945 and in May 1946 underwent a separation physical in preparation for his separation from active duty. The examining physician noted


the 1945 knee injury but makes no mention of any wounds sustained as a result of hostile action. On 2 May 1946 the applicant was released from active duty. His WD AGO 53-55 (report of separation), which he authenticated with his signature, does not reflect the Purple Heart as an authorized award and item 34 (wounds received in action) reflects “NONE.”

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 2 May 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 28 November 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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