RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:        22 MARCH 2005
      DOCKET NUMBER:  AR20040003820


      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             |
|     |Mr. Kenneth H. Aucock             |     |Analyst              |

      The following members, a quorum, were present:

|     |Mr. Thomas Howard                 |     |Chairperson          |
|     |Mr. Robert Osborn                 |     |Member               |
|     |Mr. James Gunlicks                |     |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 injured by shrapnel from an explosion
while he was on the Admiralty Islands.  His leg was severely injured and
the medics wanted to amputate but he pleaded with them to leave it, which
they did.  He never received the Purple Heart.  To this day he experiences
pain and difficulty in walking.

3.  On behalf of the applicant, his daughter submits statements in which
she provided a brief summarization of the applicant’s military service, and
stated that he was in a foxhole in the Admiralty Islands when something
blew up and shrapnel flew into his leg, causing serious damage.  She stated
that the doctors wanted to amputate it, but he refused, and went back into
combat.  She stated that he still suffered from soreness and stiffness in
his leg and struggles to walk some days.  She stated that she tried to
obtain his medical records but learned they were destroyed in a fire.

4.  The applicant provides a copy of his WD AGO Form 53-55 (Enlisted Record
and Report of Separation) and copies of documents from the Veterans
Administration (VA).

CONSIDERATION OF EVIDENCE:

1.  The applicant is requesting correction of an alleged error or injustice
which occurred on 28 October 1945.  The application submitted in this case
is dated   25 January 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
are sufficient documents available for the Board to conduct a fair and
impartial review of this case.

4.  The applicant was inducted into the Army on 16 June 1942 and served
with the 82nd Field Artillery Battalion in the Asiatic-Pacific Theater of
Operations during World War II, departing for that theater in July 1943 and
returning to the United States in September 1945.  He participated in four
campaigns during the war and was awarded the American Theater Ribbon, the
Asiatic-Pacific Theater Ribbon with four bronze service stars, the Bronze
Service Arrowhead, the Philippine Liberation Ribbon with two bronze battle
stars, four overseas service bars, one service stripe, and the Good Conduct
Medal.  Item 34 of that form, Wounds Received in Action, contains the
entry, “None.”  The applicant was discharged in the rank of staff sergeant
at Fort Sheridan, Illinois on 28 October 1945.

5.  On 8 August 1947 the VA awarded the applicant a 10 percent disability
rating for his left knee condition.  On 17 August 1949 the VA notified the
applicant that the records of his claim were reconsidered and a decision
rendered to the effect that his degree of disability had not been changed.

6.  Army Regulation 600-8-22 provides that the Purple Heart is awarded for
a wound 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, and the medical treatment must have
been made a matter of official record.

7. The World War II Victory Medal is awarded for service between 7 December
1941 and 31 December 1946.

8.  The Unit Citation and Campaign Participation Credit Register shows that
the 82nd Field Artillery Battalion was awarded the Philippine Presidential
Unit Citation for its actions while the applicant was assigned to that
organization.

DISCUSSION AND CONCLUSIONS:

1.  The applicant’s contention that he was wounded in action was carefully
considered, as was the plea on his behalf by his daughter.  Noted is his
more than two years of service in the Asiatic-Pacific Theater during the
war and his participation in four campaigns.  The VA documents submitted
were also reviewed.  Unfortunately, none of the evidence submitted, to
include the VA documents, shows that he was wounded in action.  The VA
documents only reflect that he was granted a 10 percent disability rating
for his left knee condition; however, there is no evidence concerning the
circumstances of the injury to his left knee.  There is simply insufficient
evidence to show that he was wounded in action.  Consequently, his request
for award of the Purple Heart cannot be granted.

2.  Records show the applicant should have discovered the alleged error or
injustice now under consideration on 28 October 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.

3.  The evidence shows that the applicant’s record contains administrative
error that does not require action by the Board.  The necessary corrections
will be accomplished administratively by the Case Management Support
Division (CMSD), St. Louis, Missouri, as outlined in paragraph 3 of the
Determination/Recommendation section below.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF

________  ________  ________  GRANT PARTIAL RELIEF

________  ________  ________  GRANT FORMAL HEARING

___TH___  ___RO__  ___JG  __  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.

3.  The Case Management Support Division at St. Louis is requested to
correct the applicant’s records to show award of the World War II Victory
Medal and the Philippine Presidential Unit Citation.

                                  ____ Thomas Howard_____
                                            CHAIRPERSON



                                    INDEX

|CASE ID                 |AR20040003820                           |
|SUFFIX                  |                                        |
|RECON                   |YYYYMMDD                                |
|DATE BOARDED            |20050322                                |
|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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