MEMORANDUM OF CONSIDERATION


         IN THE CASE OF:


         BOARD DATE: 13 SEPTEMBER 2001
         DOCKET NUMBER: AR2001058628

         I certify that hereinafter is recorded the record of consideration 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 N. Eichorn		Chairperson
Mr. John E. Denning		Member
Mr. Terry L. Placek		Member

         The Board, established pursuant to authority contained in 10 U.S.C. 1552, convened at the call of the Chairperson on the above date. In accordance with Army Regulation 15-185, the application and the available military records pertinent to the corrective action requested were reviewed to determine whether to authorize a formal hearing, recommend that the records be corrected without a formal hearing, or to deny the application without a formal hearing if it is determined that insufficient relevant evidence has been presented to demonstrate the existence of probable material error or injustice.

         The applicant requests correction of military records as stated in the application to the Board and as restated herein.

         The Board considered the following evidence:

         Exhibit A - Application for correction of military
records
         Exhibit B - Military Personnel Records (including
         advisory opinion, if any)

APPLICANT REQUESTS: Reconsideration of his request that his records be corrected to reflect that he received a battlefield commission during World War II and that he was discharged in the grade of second lieutenant.

APPLICANT STATES: Via his congressional representative, that a 1997 letter supporting his petition to this Board should have been considered as new evidence and as such his previous request for reconsideration should have been referred to the Board and not closed administratively.

NEW EVIDENCE OR INFORMATION: Incorporated herein by reference are military records which were summarized in a memorandum prepared to reflect the Board's original consideration (AC96-05761) of his case on 24 April 1996 and the 10 May 2001 administrative response to his January 2001 request for reconsideration (AR2001052447).

The 1997 letter, submitted in support of the applicant’s petition to the Board, indicates that the author of the letter took over as the applicant’s battalion commander when the applicant was already performing duties as the battalion supply officer. He notes that upon his assignment he learned “about [the applicant] as Supply Officer and his commission to 2^nd Lt.” He stated the applicant was doing a “good job as Supply Officer” and on 28 December 1944 he (the applicant) was seriously wounded.

Information contained in the applicant’s original application to the Board, which was denied in 1996, indicates that he was promoted to first sergeant on 24 November 1944 and “shortly there after [he] developed a high fever” and was hospitalized for “about 2 weeks….” When he returned to his unit he was told by his battalion commander, a major, that he “was to cover the BN [sic] supply office job.” He indicated during a lull in fighting between 16 December and
26 December he asked the battalion commander about “my acting as a Lt. And he told me it takes time.” On 28 December 1944 the applicant was seriously wounded and ultimately evacuated from the theater of operations.

Army Regulation 605-10, in effect at the time, established the policies and provisions for the appointment of officers. It stated that authority existed “during the present emergency, temporary appointments as officers in the Army of the United States may be made, under such regulations as the President may prescribe, from among qualified persons without appointing such persons as officers in any particular component of the Army of the United States.” The regulation specified that when a commander of United States forces outside the continental United States was granted special authority by the War Department to appoint or to recommend the appointment of officers, Army of the United States, the qualifications for appointment would be indicated in the special War Department instructions authorizing the appointment. The regulation specifically cited physical qualification as one of the regulatory requirements for an individual to be commissioned. However, the regulation went on to note that “overseas commanders specifically authorized to appoint as second lieutenants in the Army of the United States warrant officers, flight officers, and enlisted men who have demonstrated their fitness for appointment in actual combat and qualified therefor, were authorized to waive physical disabilities incurred in combat subsequent to the initiation of the recommendation for appointment, provided the recommendation had been made or approved by a general officer prior to the time the individual was disabled and that the individual was physically qualified for appointment at that time.”

DISCUSSION: Considering all the evidence, allegations, and information presented by the applicant, together with the evidence of record, applicable law and regulations, it is concluded:

1. The evidence submitted by the applicant does indicate that he performed duties as the battalion supply officer for a brief period in December 1944 before he was seriously wounded in action. However, there still is no evidence which confirms that he was ever officially recommended for appointment as a commissioned officer, or that if there was a recommendation that such recommendation was ever approved.

2. The 1997 statement submitted by the applicant does not provide sufficient evidence that the applicant was recommended for a commission or that if recommended that it was approved. The statement does, like previous statements, merely confirm that the applicant was performing duties as the battalion supply officer. The Board notes, however, that the mere fact that an enlisted soldier may have been performing the duties of an officer, is not a basis to conclude that he was recommended for or granted a commission.

3. Based on the dates involved, as noted in the applicant’s own statement, he was likely assigned to duties as the supply officer by his battalion commander, a major, in the beginning of December 1944 (appointed as first sergeant on
24 November and hospitalized for two weeks shortly thereafter where upon his return he assumed duties as the supply officer). Between 16 and 26 December he indicated that he inquired about his commission and was told by his battalion commander, the individual he maintains recommended him, that “it takes time.” On 28 December 1944 the applicant was seriously wounded and evacuated from the theater.

4. The Board notes that regulations then in effected specifically indicate that an individual needed to be physically qualified in order to be commissioned. However, that qualification could be waived when physical disabilities were incurred in combat after a recommendation for appointment was made, providing the recommendation had been made or approved by a general officer prior to the time the individual was disabled. The evidence, as provided by the applicant, indicates that he was recommended for a commission by a major, his battalion commander, and not a general officer. Hence in order for him to qualify for the commission the recommendation would have required approval by a general officer prior to the date the applicant was injured. Unfortunately no such evidence exists and it is unlikely, given the short duration between the time the applicant likely assumed duties as the supply officer and when he was injured, that such an approval could have been secured.

5. The overall merits of the case, including the latest submissions and arguments are insufficient as a basis for the Board to reverse its previous decision.

6. In view of the foregoing, there is no basis for granting the applicant's request.

DETERMINATION: The applicant has failed to submit sufficient relevant evidence to demonstrate the existence of probable error or injustice.

NOTE:

BOARD VOTE:

________ ________ ________ GRANT

________ ________ ________ GRANT FORMAL HEARING

__FNE __ __JED __ __TLP __ DENY APPLICATION

                  Carl W. S. Chun
                  Director, Army Board for Correction
of Military Records

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INDEX

CASE ID	AR2001058628
SUFFIX
RECON	YYYYMMDD
DATE BOARDED	20010913
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.	102.00
2.
3.
4.
5.
6.