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ARMY | BCMR | CY2001 | 2001058198C070420
Original file (2001058198C070420.rtf) Auto-classification: Denied
MEMORANDUM OF CONSIDERATION


         IN THE CASE OF:


         BOARD DATE: 28 AUGUST 2001
         DOCKET NUMBER: AR2001058198


         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.

Mr. Carl W. S. Chun Director
Ms. Deborah L. Brantley Senior Analyst


The following members, a quorum, were present:
Mr. John N. Slone Chairperson
Mr. Richard T. Dunbar Member
Mr. Donald P. Hupman, Jr. 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

 : That his records be corrected to show that he was awarded the Purple Heart. He states, in effect, that he received the medal and submits a copy of a Purple Heart Medal with a bronze star affixed to the ribbon.

 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 served on active duty between 20 July 1944 and 9 October 1945. According to documents in his service medical records he sustained multiple injuries as a result of an automobile accident which occurred on 29 May 1945 while the applicant was “riding, on duty in an automobile to Co. B, from his company area.” The applicant was assigned to a unit in Germany at the time. His injuries, while determined to have occurred “in the line of duty” did not involve hostile actions and were “A.I” (accidentally incurred).

As a result of his injuries the applicant was ultimately released from active duty with a certificate of disability for discharge.

In 1988 the applicant’s grandson inquired about the applicant’s entitlement to the Purple Heart. In his inquiry the grandson cited injuries the applicant sustained as a result of the automobile accident as the basis for possible entitlement to the Purple Heart.

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. Injuries which were accidentally incurred do not meet the requirements for 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 on 9 October 1945, 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 23 May 2001 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. Prior to reaching this determination the Board looked at the applicant's entire file. It was only after all aspects of his case had been considered and it had been concluded that there was no basis to recommend a correction of his record that the Board considered the statute of limitations. Had the Board determined that an error or injustice existed it would have recommended relief in spite of the applicant's failure to submit his application within the three-year time limit.
BOARD VOTE :

________ ________ ________ EXCUSE FAILURE TO TIMELY FILE

________ ________ ________ GRANT FORMAL HEARING

__ JNS __ __ RTD __ __ DPH _ CONCUR WITH DETERMINATION
Carl W. S. Chun
Director, Army Board for Correction
         of Military Records
INDEX
CASE ID AR2001058198
SUFFIX
RECON YYYYMMDD
DATE BOARDED 20010828
TYPE OF DISCHARGE (HD, GD, UOTHC, UD, BCD, DD, UNCHAR)
DATE OF DISCHARGE YYYYMMDD
DISCHARGE AUTHORITY AR . . . . .
DISCHARGE REASON
BOARD DECISION DENY
REVIEW AUTHORITY
ISSUES 1. 142.00
2.
3.
4.
5.
6.



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