RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:            08 APRIL 2004
      DOCKET NUMBER:   AR2003098072


      I certify that hereinafter is recorded the true and complete record
of the proceedings 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. Raymond J. Wagner             |     |Chairperson          |
|     |Ms. Gail J. Wire                  |     |Member               |
|     |Mr. William D. Powers             |     |Member               |

      The applicant and counsel if any, did not appear before the Board.

      The Board considered the following evidence:

      Exhibit A - Application for correction of military records.

      Exhibit B - Military Personnel Records (including advisory opinion,
if any).

THE APPLICANT'S REQUEST, STATEMENT, AND EVIDENCE:

1.  The applicant requests award of the Purple Heart.

2.  The applicant states he was wounded in combat on 22 October 1942.  He
states that he should receive the award even though his unit was not
recognized by the United States Army at the time.  He argues that there was
“already heavy fighting between the Reinforcement movement, the Guerilla
Forces and the Japanese soldiers.”

3.  He states that his unit was recognized in October 1943, a year after
the date he was wounded, and states that “because of this technicality,
[his] gunshot wound was considered a pre-existing injury….”  He notes that
ultimately, in 1972, he was granted a service connected disability rating
because the “pre-existing” condition was determined to have been aggravated
during his military service.

4.  The applicant provides a copy of his self-authored statement, his
enlisted records, and his Department of Veterans Affairs rating.

COUNSEL'S REQUEST, STATEMENT AND EVIDENCE:

1.  Counsel requests that the applicant be awarded the Purple Heart.

2.  Counsel states the applicant was “wounded in action in a combat
encounter…on 22 October 1942.”  Counsel notes that the Department of
Veterans Affairs granted the applicant disability for “pre-service gunshot
wound of the right upper extremity which was aggravated during wartime
service.”  Therefore, counsel asks that all doubt be resolved in the
applicant’s favor and he be awarded the Purple Heart.

3.  Counsel provides nothing beyond that already provided by the applicant.

CONSIDERATION OF EVIDENCE:

1.  The applicant is requesting correction of an injustice which occurred
on
11 February 1946.  The application submitted in this case is dated 8 August
2003.

2.  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.  This provision of law allows the Army
Board for Correction of Military Records (ABCMR) to excuse failure to file
within the 3-year statute of limitation if the ABCMR determines that it
would be in the interest of justice to do so.  In this case, the ABCMR will
conduct a review of the merits of the case to determine if it would be in
the interest of justice to excuse the applicant’s failure to timely file.
3.  Beyond the documents provided by the applicant, there were no other
records available to the Board.

4.  The 1972 Department of Veterans Affairs documents note that the
applicant sustained a gunshot wound to his right shoulder on 22 October
1942, “prior to his recognized guerilla service.”  It noted that the
applicant had “active guerrilla service from October 21, 1943, to March 6,
1945, June 4, 1945, and June 6, 1946 to February 11, 1946.”  His service
medical records indicated that he was hospitalized in January 1945 “for a
condition diagnosed as moderately severe chronic suppurative osteomyelitis
of the head of the right humerus, secondary to a gunshot wound received two
years previously….”  In a statement to the Board of Veteran Appeals the
applicant indicated that “my wound was incurred on October 22, 1942, but
from that time until the Americans came to [the] Philippines I was not
cured.”  The Board of Veterans Appeals granted the applicant “service
connection by aggravation for the residuals of a gunshot wound….”

5.  The applicant’s “enlisted record” confirms the applicant’s 22 October
1942 gunshot wound to his right shoulder.

6.  Army Regulation 600-8-22 states that the Purple Heart is awarded in the
name of the President of the United States to any member of an Armed Force
or any civilian national of the United States who, while serving under
competent authority in any one of the United States Armed Services after 5
April 1917 is wounded as a result of an act of a hostile foreign force.

DISCUSSION AND CONCLUSIONS:

1.  The evidence clearly indicates that the applicant was wounded prior to
being recognized as a member of the United States forces.  As such, he does
not meet the qualification requirements for award of the Purple Heart.  It
should also be noted that the Department of Veterans Affairs granted the
applicant disability compensation based on “service aggravation” of a pre-
existing condition and not for the basic injury, further supporting the
argument that applicant’s wound was not recognized as having occurred
during a recognized period of service.

2.  The applicant’s argument that he should be entitled to the Purple Heart
because the Department of Veterans Affairs has granted him disability
compensation, and because he should not be denied the award solely on a
“technicality,” are not sufficiently compelling to warrant the award as an
exception to established policies.

3.  In order to justify correction of a military record the applicant must
show, or it must otherwise satisfactorily appear, that the record is in
error or unjust.  The applicant has failed to submit evidence that would
satisfy that requirement.
4.  Records show the applicant should have discovered the alleged error or
injustice now under consideration on 11 February 1946, the date of his
separation from active duty.  However, the ABCMR was not established until
2 January 1947.  As a result, the time for the applicant to file a request
for correction of any error or injustice expired on 1 January 1950.
However, the applicant did not file within the 3-year statute of
limitations and has not provided a compelling explanation or evidence to
show that it would be in the interest of justice to excuse the failure to
timely file.

BOARD VOTE:

________  ________  ________  GRANT RELIEF

________  ________  ________  GRANT FORMAL HEARING

__RJW__  __GJW__  __WDP__  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

1.  The Board determined that the evidence presented does not demonstrate
the existence of a probable error or injustice.  Therefore, the Board
determined that the overall merits of this case are insufficient as a basis
for correction of the records of the individual concerned.

2.  As a result, the Board further determined that there is no evidence
provided which shows that it would be in the interest of justice to excuse
the applicant's failure to timely file this application within the 3-year
statute of limitations prescribed by law.  Therefore, there is insufficient
basis to waive the statute of limitations for timely filing or for
correction of the records of the individual concerned.




            _  Raymond J. Wagner____
                    CHAIRPERSON




                                    INDEX

|CASE ID                 |AR2003098072                            |
|SUFFIX                  |                                        |
|RECON                   |YYYYMMDD                                |
|DATE BOARDED            |20040408                                |
|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.       |107.00                                  |
|2.                      |                                        |
|3.                      |                                        |
|4.                      |                                        |
|5.                      |                                        |
|6.                      |                                        |