RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:        19 APRIL 2005
      DOCKET NUMBER:  AR20040009366


      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 Wagner                |     |Chairperson          |
|     |Mr. Larry Bergquist               |     |Member               |
|     |Mr. Larry Olson                   |     |Member               |

      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 that he was a member of the 29th Field Artillery
in July 1944 during the "Battle for St. Lo, France.”  He states that he was
on station at his gun with Section B when he was struck with shrapnel from
German artillery, which was firing on his position.  He states he was
transported to a field aid station, treated for "two shrapnel wounds on
[his] right arm inside the elbow."  He notes that he was told he should
stay at the medical facility for 3 days and would then be reassigned to
another unit.  He states, however, he elected to return to his unit and
because he did not remain at the aid station no paperwork was completed.

3.  In addition to his own statement, the applicant also provides a
statement, authenticated by a physician, as evidence of his shrapnel
wounds.

CONSIDERATION OF EVIDENCE:

1.  The applicant is requesting correction of an alleged error or injustice
which occurred on 7 November 1945.  The application submitted in this case
is dated
1 October 2004.

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 limitations 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.  The applicant’s military records are not available to the Board for
review.  A fire destroyed approximately 18 million service members’ records
at the National Personnel Records Center in 1973.  It is believed that the
applicant’s records were lost or destroyed in that fire.  However, there
were sufficient documents remaining in a reconstructed record for the Board
to conduct a fair and impartial review of this case.

4.  A Certification of Military Service, issued in September 2002,
indicates that the applicant served on active duty with the Army of the
United States between
3 November 1943 and 7 November 1945 when he was honorably discharged as a
staff sergeant.

5.  A physician authenticated the statement submitted in support of the
applicant's request on 20 September 2004.  The statement was intended as
"documentation that scars near [the applicant's] elbow are consistent with
shrapnel wounds.”

6.  There were no service medical records available to the Board.  However,
files maintained by the Office of The Surgeon General, commonly referred to
as the SGO Files, indicate that the applicant was treated for motion
sickness in May 1944 and remained at the medical facility for 4 days before
returning to duty.

7.  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.

DISCUSSION AND CONCLUSIONS:

1.  In the absence of more compelling medical evidence that the applicant
was wounded as a result of hostile action during World War II, and that
such wounds were treated by a medical officer, an award of the Purple Heart
based solely on the applicant's statement and a statement from his
physician rendered more than 60 years after the fact, would be
inappropriate.

2.  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.

3.  Records show the applicant should have discovered the alleged error or
injustice now under consideration on 7 November 1945, 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 FULL RELIEF

________  ________  ________  GRANT PARTIAL RELIEF

________  ________  ________  GRANT FORMAL HEARING

__RW___  ___LB___  ___LO __  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 Wagner ____
                                            CHAIRPERSON



                                    INDEX

|CASE ID                 |AR20040009366                           |
|SUFFIX                  |                                        |
|RECON                   |YYYYMMDD                                |
|DATE BOARDED            |20050419                                |
|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.                      |                                        |


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