| Mr. Carl W. S. Chun | Director | |
| Ms. Deborah L. Brantley | Senior Analyst |
| Mr. Arthur A. Omartian | Chairperson | |
| Mr. Lester Echols | Member | |
| Mr. John T. Meixell | Member |
APPLICANT REQUESTS: That his records be corrected to reflect award of the Purple Heart. He states they had fired several rounds at two approaching German tanks and, after firing the anti-tank gun, the breach remained open. He notes that while he was closing the breach, “it caught [his] right hand, mashing [his] index finger." He notes that his hand was bandaged, but he remained "on the front lines" as his wound wasn't life threatening. He states that the "medic" was going to "write [him] up for a Purple Heart," but he thought the injury was his own fault and refused the offer. He submits no evidence in support of his request.
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 likely lost or destroyed during the 1973 fire at the National Personnel Records Center. Information contained herein was reconstructed from alternative sources.
The applicant entered active duty at Vancouver, Washington. According to the only medical information available to the Board, which was extracted from the files of The Surgeon General, in January 1944, while at Camp Adair, Oregon the applicant was treated for psychoneurosis and neurocirculatory asthenia.
The applicant's final payment work sheet confirms he was assigned overseas where he received foreign service pay. He returned to the United States on
18 April 1946 and was discharged on 26 April 1946. A copy of his separation report was not available to the Board.
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. Specifically prohibited from award of the Purple Heart are injuries which were accidentally incurred, even if they were incurred while engaged in hostile action.
There is no evidence, and the applicant has not 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 26 April 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 5 September 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
__AAO__ __LE____ __JTM __ CONCUR WITH DETERMINATION
| CASE ID | AR2001062718 |
| SUFFIX | |
| RECON | YYYYMMDD |
| DATE BOARDED | 20011127 |
| 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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