IN THE CASE OF:	  

		BOARD DATE:	       11 JUNE 2009

		DOCKET NUMBER:  AR20090006140 


THE BOARD CONSIDERED THE FOLLOWING EVIDENCE:

1.  Application for correction of military records (with supporting documents provided, if any).

2.  Military Personnel Records and advisory opinions (if any).


THE APPLICANT'S REQUEST, STATEMENT, AND EVIDENCE:

1.  The applicant requests that his rank be corrected to read corporal (CPL) on his DD Form 214 (Report of Separation from the Armed Forces of the United States) for the period ending 28 October 1953.

2.  The applicant states that he was promoted to CPL prior to separating from active duty.  The applicant states that he was told by a sergeant prior to leaving Germany that someone else would correct his records to show he was promoted to CPL.

3.  The applicant provides his DD Form 214 and Headquarters, Southeastern Area Command, Special Orders Number 96, dated 28 September 1953.

CONSIDERATION OF EVIDENCE:

1.  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 also allows the Army Board for Correction of Military Records (ABCMR) to excuse an applicant’s failure to timely file within the 3-year statute of limitations if the ABCMR determines it would be in the interest of justice to do so.  While it appears the applicant did not file within the time frame provided in the statute of limitations, the ABCMR has elected to conduct a substantive review of this case and, only to the extent relief, if any, is granted, has determined it is in the interest of justice to excuse the applicant’s failure to timely file.  In all other respects, there are insufficient bases to waive the statute of limitations for timely filing.
2.  The applicant's military records are not available for review.  A fire destroyed approximately 18 million service member's records at the National Personnel Records Center in 1973.  It is believed that his records were lost or destroyed in that fire.  However, this case is being considered using reconstructed records, which primarily consist of his DD Form 214 for the period ending 28 October 1953 and Headquarters, Southeastern Area Command, Special Orders Number 96, dated 28 September 1953.

3.  The applicant's DD Form 214 shows:

	a.  that on 13 November 1951, he was inducted into the Army of the United States and entered active duty;

	b.  that his rank/date of rank on the document shows private first class (PFC) (temporary (T)) 30 January 1953 in item 3 (Grade-Rate-Rank and Date of Appointment); and

	c.  that on 28 October 1953, he was honorably released from active duty after completing 1 year, 11 months and 16 days of creditable active duty service.

4.  Headquarters, Southeastern Area Command, Special Orders Number 96, dated 28 September 1953, show that the applicant was promoted to the temporary rank of CPL effective 28 September 1953 and amended his separation orders to show his rank as CPL.  There is no evidence of any adverse information or that he was later reduced.

DISCUSSION AND CONCLUSIONS:

Headquarters, Southeastern Area Command, Special Orders Number 96, dated 28 September 1953, show the applicant was promoted to the rank of CPL (T) effective 28 September 1953 prior to his separation.  Therefore, his DD Form 214 for the period ending 28 October 1953 should be corrected to show his rank as CPL (T) effective 28 September 1953.

BOARD VOTE:

____X____  ___X_____  ____X____  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION
BOARD DETERMINATION/RECOMMENDATION:

The Board determined that the evidence presented was sufficient to warrant a recommendation for relief.  As a result, the Board recommends that all Department of the Army records of the individual concerned be corrected by:

	a.  deleting the entry in item 3 of his DD Form 214; and

	b.  amending his DD Form 214 in item 3 to add "CPL (T) 28 Sep 53."



      __________XXX_______________
                 CHAIRPERSON
      
I certify that herein is recorded the true and complete record of the proceedings of the Army Board for Correction of Military Records in this case.

ABCMR Record of Proceedings (cont)                                         AR20090006140



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ABCMR Record of Proceedings (cont)                                         AR20090006140



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