RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:            03 AUGUST 2004
      DOCKET NUMBER:   AR2004101388


      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. Fred Eichorn                  |     |Chairperson          |
|     |Mr. John Meixell                  |     |Member               |
|     |Ms. Gail Wire                     |     |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, in effect, award of the Purple Heart.

2.  The applicant states he was detached from his unit when he received a
laceration wound to his scalp from a German prisoner at a prison camp in
France.  He states that while transporting German prisoners by train in
April 1945, one of the prisoners threw a hard object, believed to be a
stone, at him and knocked his helmet liner off, causing a laceration over
one inch long to the middle of his scalp.  He states the incident occurred
at one of the train stops.  He received medication and a bandage at the
train station first aid room.  He states that the officer in charge did not
report the injury and that he was not asked about any injuries when he was
being processed for separation.  He states that the scar is still visible.


3.  In addition to his own self-authored statement, the applicant provides
a statement from another individual that was with the applicant at the time
of the incident.

CONSIDERATION OF EVIDENCE:

1.  The applicant is requesting correction of an alleged error or injustice
which occurred on 11 April 1946.  The application submitted in this case is
dated
1 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.  Records available to the Board indicate that the applicant entered
active duty on 27 July 1943.  He arrived in the European Theater of
Operations in February 1945.

4.  A 4 April 1945 unit morning report confirms that the applicant was
placed in a temporary duty status for the purpose of acting as a prisoner
of war escort.

5.  The statement provided on behalf of the applicant's petition for award
of the Purple Heart is undated but contains a certification document dated
18 January 2002, attesting to the identity of the author of the statement.
The author of the statement notes that "during the train trip from Stenay
to Cherbourg there were train-stops, in an effort for the prisoners to
relieve themselves."  The author stated that at one of the rest stops the
applicant sustained a head wound to the scalp "caused by one of the German
prisoners who had thrown something very hard (believed to be a rock) at"
the applicant.

6.  The applicant returned to the United States in April 1946 and on 11
April 1946 he was honorably discharged.  His separation physical
examination, completed on 11 April 1946, makes no mention of any scalp
wounds or scars to the applicant's head.  There is no mention of any wounds
sustained as a result of hostile action.  Item 34 (wounds received in
action) on the applicant's separation document reflects "NONE."  The
applicant authenticated the separation document with his signature and
thumbprint.

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 medical evidence, which confirms that the applicant
was wounded as a result of hostile action during World War II and that a
medical officer treated those wounds, there is no basis for an award of the
Purple Heart.

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 the aforementioned requirement.

3.  Records show the applicant should have discovered the alleged error or
injustice now under consideration on 11 April 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

___FE __  ___JM___  ___GW      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.




            _____ Fred Eichorn_____
                    CHAIRPERSON




                                    INDEX

|CASE ID                 |AR2004101388                            |
|SUFFIX                  |                                        |
|RECON                   |YYYYMMDD                                |
|DATE BOARDED            |20040803                                |
|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.                      |                                        |