RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:          15 November 2005
      DOCKET NUMBER:  AR20050002599


      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. Jessie B. Strickland          |     |Analyst              |

      The following members, a quorum, were present:

|     |Mr. Stanley Kelley                |     |Chairperson          |
|     |Mr. John T. Meixell               |     |Member               |
|     |Mr. Robert L. Duecaster           |     |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 that he be awarded the Purple Heart, that he be
retired by reason of physical disability with a 100% disability rating,
that he be granted service-connected disability for Post Traumatic Stress
Disorder (PTSD), chronic anxiety, chronic depression, heart condition and
related complications, hemmorrhage of the brain, urinary conditions, loss
of use of limbs and creative organs and reimbursement for emergency medical
treatments and outstanding medical expenses.

2.  The applicant states, in effect, that he was unjustly discharged with a
Certificate of Disability when he should have be retired by reason of
physical disability.  He goes on to state that he was mentally and
physically injured in combat and was never awarded the Purple Heart for
those injuries.  He also states that his right arm was amputated as a
result of injuries sustained in combat and he suffered a great deal of
depression, anxiety and stress associated with the trauma from his injuries
and long term medical treatments.  He continues by stating that he was in a
full body cast when military officials determined that it was too costly to
retain him in the military and discharged him. He further states that he
fought bravely in defense of his country, was wounded in combat and was
never recognized with an award of the Purple Heart.  Additionally, all of
his medical problems stem from his injuries incurred while serving in the
military and the debts that he had incurred as a result of emergency
medical treatments that are not being paid by the government continue to
plague him.

3.  The applicant provides a copy of his report of separation (WD AGO Form
  53-55) and a document indication that he is receiving 100% service
connected disability for the loss of use of both hands.

CONSIDERATION OF EVIDENCE:

1.  The applicant is requesting correction of an alleged injustice which
occurred on 12 May 1945.  The application submitted in this case is dated 9
February 2005.

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.  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.  He was born on 13 April 1920 and was inducted at Camp Blanding,
Florida, on 26 March 1941.  He underwent his training at Camp Blanding and
was assigned to Company D, 97th Engineer General Service Regiment (Colored)
for duty as a heavy truck driver.

5.  His unit departed Camp Blanding to participate in the building of the
Alaska Canadian (ALCAN) Highway during the period of March to 25 October
1942.  Upon completion of the ALCAN Highway, his unit remained in Alaska
until it was deployed to New Guinea.  He was serving in the rank of
technician fifth grade (equivalent to a corporal).

6.  At 0800 hours, on 23 August 1944 in Finschaven, New Guinea, the
applicant was working on a dump truck loosening a nut in order to repair a
leaking hydraulic mechanism when the dump body fell crushing his right
upper arm between the body and the chassis.  He was evacuated to the 161st
Station Hospital and on 30 August 1944, his right arm was surgically
amputated due to the development of gangrene in his injured arm.  An
investigation was conducted and the injury was deemed to be accidental and
incurred in the line of duty.

7.  On 6 October 1944, he was evacuated to the 4th General Hospital, then
to the 247th General Hospital.  He arrived at Hamilton Field, California on
12 November 1944 and was subsequently transferred to Lawson General
Hospital (LGH) in Atlanta, Georgia, on 20 November 1944 and was admitted to
the amputation center.  He underwent additional surgery and was
subsequently fitted with a prosthesis.

8.  On 10 May 1945, he appeared before the Disposition Board for Enlisted
Men at LGH and the board found that he was unfit for further service as a
Soldier and recommended that he be discharged with a Certificate of
Disability for Discharge.

9.  Accordingly, he was honorably discharged on 12 May 1945 with a
Certificate of Disability for Discharge under the provisions of Army
Regulation 615-361.  He had served 4 years, 1 month and 17 days of total
active service.  His WD AGO Form 53-55 indicates in item 34, under Wounds
Received in Action, the entry “None.”

10.  A review of the available records to include hospital admission
records and the line of duty investigation that was conducted at the time,
indicate that the applicant’s injury was accidental and was classified as a
non-battle injury.

11.  Army Regulation 600-8-22 provides, in pertinent part, 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 a
result of hostile action, that the wound must have required treatment by a
medical officer, and that the medical treatment was made a matter of
official record.  This regulation also provides that there is no statute of
limitations on requests for award of the Purple Heart.

12.  The Act of June 30, 1941, ch. 263 {Public Law 140, 77th Congress}, was
the first legislation to extend disability retirement to Army enlisted
personnel.  It allowed Soldiers with 20 or more years of service to be
retired for disability, with pay equal to 75% of their average monthly pay
for the 6 months immediately prior to retirement.

13.  Prior to 1 October 1949, on which date the Career Compensation Act of
1949, Public Law 351, 81st Congress, became effective, there were no
provisions of law whereby an enlisted person with less than 20 years
service could be retired from the Army for physical disability.  Under then
existing law, compensation and pension for service connected disabilities
were under the jurisdiction of the Veterans Administration.  There are no
retroactive provisions for application of that law to persons who were
discharged prior to 1 October 1949.

DISCUSSION AND CONCLUSIONS:

1.  The applicant’s contention that he was wounded in combat has been
noted.  However, neither the documents submitted with his application or
the available evidence of record corroborate that contention.

2.  All of the evidence reviewed by the Board indicates that his injuries
were the result of an accident that did not involve any enemy action at the
time.  While he was present in a combat theater at the time, that in itself
does not qualify for award of the Purple Heart.  Therefore, lacking
evidence to show that he was injured as a result of enemy action, there
appears to be no basis to award him the Purple Heart at this time.

3.  The applicant’s contention that he should have been medically retired
at the time has been noted and found to be without merit.  At the time he
was discharged with a Certificate of Disability Discharge on 12 May 1945,
there were no provisions of law that provided for the disability retirement
of enlisted personnel who had less than 20 years of service.

4.  Accordingly, he was properly discharged in accordance with the
applicable laws and regulations in effect at the time with no violations of
any of his rights.

5.  While the Board is sympathetic to the applicant’s position and the
difficulty he is encountering, there is no effective relief that can be
granted in the applicant’s case.

6.  Records show the applicant should have discovered the alleged error or
injustice now under consideration on 12 May 1945, the date of his
separation from active duty.  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.  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

__sk____  __jtm___  __rld___  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.



                                  Stanley Kelley
            ______________________
                    CHAIRPERSON




                                    INDEX

|CASE ID                 |AR20050002599                           |
|SUFFIX                  |                                        |
|RECON                   |                                        |
|DATE BOARDED            |20051115                                |
|TYPE OF DISCHARGE       |                                        |
|DATE OF DISCHARGE       |                                        |
|DISCHARGE AUTHORITY     |                                        |
|DISCHARGE REASON        |                                        |
|BOARD DECISION          |(DENY)                                  |
|REVIEW AUTHORITY        |                                        |
|ISSUES                  |61/PH                                   |
|1.107.0015              |                                        |
|2.108.0000              |177/DIS RET                             |
|3.                      |                                        |
|4.                      |                                        |
|5.                      |                                        |
|6.                      |                                        |


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