RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:           23 August 2005
      DOCKET NUMBER:  AR20040008575


      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. Joseph A. Adriance            |     |Analyst              |

      The following members, a quorum, were present:

|     |Mr. Kathleen A. Newman            |     |Chairperson          |
|     |Mr. William D. Powers             |     |Member               |
|     |Ms. Marla J. N. Troup             |     |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, son of the deceased former service member (FSM)
requests, in effect, the posthumous award of the Purple Heart (PH).

2.  The applicant states, in effect, that the FSM was wounded in the legs,
back, and head during combat operations in the Pacific Theater of
Operations (PTO) in November 1943.  He claims the FSM refused the PH
because he did not wish his parents to worry about his wounds.

3.  The applicant provides the following documents in support of the
application:  Separation Document (Honorable Discharge), Newspaper Article
Extract, and Death Certificate.

CONSIDERATION OF EVIDENCE:

1.  The applicant is requesting correction of an alleged error or injustice
that occurred on 12 October 1944.  The applications submitted in this case
are dated
17 September 2004 and 2 August 2005, respectively.

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 FSM’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 (NPRC) in 1973.  It is believed that the
FSM’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.  This case is being
considered using reconstructed records that primarily consist of the FSM’s
separation document and an Office of the Surgeon General (OTSG) Hospital
Admission Record.

4.  The FSM’s separation document shows he entered active duty in the Army
on 7 October 1942, and that he continuously served on active duty until
being honorably separated on 12 October 1944.  This document also shows
that he served in the PTO from 23 April 1943 through 15 January 1944.

5.  The FSM’s separation document also reveals he participated in the
Solomon Islands campaign and received the Asiatic-Pacific Campaign Medal
with
1 bronze service star.  The wounds received in service portion of the
separation document contains the entry “None”.  An OTSG record on file at
the NPRC shows the FSM was admitted to a field hospital at Fort Meade,
Maryland in September 1944 and was treated for psychoneurosis.  This OTSG
record indicates the FSM had no history of prior disease, injury or battle
casualty as of the date of his admission for this treatment.

6.  The applicant provides a newspaper article extract that indicates the
FSM was wounded in action at Vella la Vella in November 1943 and was
evacuated to an Army Hospital in New Caledonia.  The article also indicates
the FSM refused the PH because he did not wish his parents to worry about
his wounds.  The death certificate of the FSM provided by the applicant
confirms he died on
31 December 1982.  There is no indication in the remaining NPRC files that
the FSM ever made a claim of entitlement to the PH prior to his separation
on
12 October 1944, or at anytime prior to his death in 1982.

7.  Army Regulation 600-8-22 (Military Awards) prescribes Army policy and
criteria concerning individual military awards.  Paragraph 2-8 contains the
regulatory guidance pertaining to awarding the PH.  It states, in pertinent
part, that in order to award a PH there must be evidence that a member was
wounded or injured as a result of enemy action.  The wound or injury for
which the PH is being awarded must have required treatment by a medical
officer and this treatment must be supported by medical treatment records
that were made a matter of official record.

DISCUSSION AND CONCLUSIONS:

1.  The applicant’s claim of entitlement to the PH on behalf of the FSM and
the supporting evidence he provided were carefully considered.  However, by
regulation, in order to support award of the PH, there must be evidence a
member was wounded/injured in action, was treated for the wound/injury by
military medical personnel and a record of this medical treatment must have
been made a matter of official record.

2.  The veracity of the applicant’s claim that the FSM was wounded in
action and refused the PH while serving in the PTO is not in question.
However, there is no evidence to corroborate the information contained in
the newspaper article provided related to the FSM being wounded in action
and refusing the PH.  The evidence includes an OTSG hospital treatment
record pertaining to the FSM, which shows he had no prior history as a
battle casualty when he was admitted for treatment in September 1944.
3.  Further, there is no indication the FSM ever claimed entitlement to the
PH at anytime prior to his death in 1982.  Thus, absent specific evidence
(eye-witness accounts, medical treatment records, etc) showing the FSM was
wounded in action and treated for a combat related wound, the regulatory
burden of proof necessary to support award of the PH has not been satisfied
in this case.

4.  Records show the applicant should have discovered the alleged error or
injustice now under consideration on 31 December 1982, the date of the
FSM’s death.  Therefore, the time for him to file a request for correction
of any error or injustice expired on 30 December 1985.  However, he failed
to 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
failure to timely file in this case.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF

________  ________  ________  GRANT PARTIAL RELIEF

________  ________  ________  GRANT FORMAL HEARING

___KAN _  __WDP__  __MJNT_  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.




            ___Kathleen A. Newman_____
                    CHAIRPERSON

                                    INDEX

|CASE ID                 |AR20040008575                           |
|SUFFIX                  |                                        |
|RECON                   |                                        |
|DATE BOARDED            |2005/08/23                              |
|TYPE OF DISCHARGE       |HD                                      |
|DATE OF DISCHARGE       |1944/10/12                              |
|DISCHARGE AUTHORITY     |AR 615-365                              |
|DISCHARGE REASON        |Certificate of Disability               |
|BOARD DECISION          |DENY                                    |
|REVIEW AUTHORITY        |Mr. Chun                                |
|ISSUES         1.  61   |107.0015                                |
|2.                      |                                        |
|3.                      |                                        |
|4.                      |                                        |
|5.                      |                                        |
|6.                      |                                        |


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