MEMORANDUM OF CONSIDERATION


         IN THE CASE OF:
        


         BOARD DATE: 23 July 2002
         DOCKET NUMBER: AR2002071122

         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
Mr. Jessie B. Strickland		Analyst

The following members, a quorum, were present:

Ms. Jennifer L. Prater		Chairperson
Mr. Hubert O. Fry		Member
Ms. Gail J. Wire		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)

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APPLICANT REQUESTS: That her deceased husband, a former service member (FSM), be granted a posthumous promotion to the rank of second lieutenant (2LT).

APPLICANT STATES: In effect, that her husband had previously completed 4 years of college Reserve Officer Training Corps (ROTC) training and had been appointed as a 2LT in the Officer Reserve Corps (ORC), now known as the United States Army Reserve (USAR) and then in the Army National Guard (ARNG). He resigned his commission on 29 August 1951 and was inducted as a private on 16 October 1951. In March 1952, he submitted a request to appear before an ORC board to be considered for appointment as a commissioned officer. On 29 September 1952, a response to his request was returned to his wife (the applicant), not favorably considered because the FSM’s area commander had the authority to appoint him to the rank of 2LT. The applicant goes on to state that before the FSM could receive and take the action necessary to apply for appointment, he was killed in action. In support of her request, she submits various copies of the FSM’s records, a letter of support from the Public Advocate for Veterans Affairs, a copy of the FSM’s report of death, his Honorable Discharge Certificate from the Enlisted Reserve Corps (ERC), copies of his appointment to the rank of 2LT in the ARNG and the ORC, the resignation of his commission, his request to appear before an ORC board for appointment, the response to his request from The Adjutant General of the Army, a copy of the applicant’s marriage license to the FSM, a copy of a response from the Office of the Deputy Chief of Staff for Personnel (ODCSPER) on behalf of the Secretary of Defense, a copy of the letter written to the Secretary of Defense requesting a posthumous promotion, a letter written by the FSM’s two daughters, a letter from a former commissioned officer who served with the applicant as a fellow officer, a copy of the letter received by the applicant from the FSM’s squad leader in 1953, a copy of the FSM’s college diploma, and a letter of support from the commander of the American GI Forum, Puerto Rico Chapter.

EVIDENCE OF RECORD: The FSM's military records were destroyed in the 1973 fire at the National Personnel Records Center in St. Louis, Missouri, which destroyed millions of service records. However, the documents submitted by the applicant show:

The FSM was honorably discharged from the ERC in the rank of private on 11 September 1946. He graduated from the University of Puerto Rico on 22 June 1948 and accepted an appointment to the rank of 2LT in the USAR on 15 July 1948. He was transferred to the Inactive Reserve on 17 February 1949 and accepted an appointment in the ARNG on 14 October 1949. On 29 August 1951, he resigned his commission and was honorably discharged.

He was inducted in the rank of private on 16 October 1951 and on 24 March 1952, while assigned to a replacement company at Fort Buchanan, Puerto Rico, he submitted a request to appear before an ORC board for the purpose of obtaining a commission to the rank of 2LT.

On 29 September 1952, in response to a letter written by the applicant, the Adjutant General of the Army responded to the applicant’s inquiry regarding the FSM’s request to appear before an ORC board. He indicated that the request was not favorably considered because the FSM was eligible for consideration for an appointment in the ORC under current regulations and that the authority to do so had been delegated to Army commanders in the area in which the FSM served at the time of application. He recommended that the FSM contact his immediate commander regarding application procedures for appointment.

On 17 March 1953, the FSM was killed in action against the enemy in Korea while serving in the rank of private first class. There is no indication in the available evidence to show that the applicant ever made application to his area commander for appointment to the rank of 2LT prior to his death.

On 2 October 2001, in response to a letter written to the Secretary of Defense by an official of the American GI Forum in Puerto Rico, an official of the ODCSPER informed the author of the letter that the FSM was not eligible for a posthumous promotion because Title 10, United States Code, section 1521, provided that a posthumous promotion may be issued in the name of a member of the Armed Forces who was appointed to a commissioned grade but was unable to accept the appointment because of death in the line of duty.

Title 10, United States Code, section 1521, provides the provisions for posthumous commissions. It provides, in pertinent part, that the President may issue, or have issued, an appropriate commission in the name of a member of the Armed Forces who, after September 8, 1939, was appointed to a commissioned officer grade but was unable to accept the appointment because of death in the line of duty. Section 1523 provides that no person is entitled to any bonus, gratuity, pay, or allowance because of a posthumous appointment.

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. In order to justify correction of a military record the applicant must show to the satisfaction of the Board, or it must otherwise satisfactorily appear, that the record is in error or unjust. The applicant has failed to submit evidence that would satisfy this requirement.



2. While the Board recognizes the applicant’s desire to gain recognition for the FSM’s contributions and accomplishments, the FSM had resigned his commission prior to being inducted and there is no evidence to show that he was offered or approved for appointment as a commissioned officer prior to his death.

3. The Board also recognizes that the FSM met the administrative qualifications for appointment as a commissioned officer; however, it is not uncommon for former commissioned officers to serve on active duty as enlisted soldiers when they no longer can serve as commissioned officers. Absent evidence to show that the FSM applied to his commander in Korea and that he was offered a commission before his death, or that his application was not properly processed in accordance with the regulations in effect at the time, the Board finds no basis to award him a posthumous commission.

4. 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.

BOARD VOTE:

________ ________ ________ GRANT

________ ________ ________ GRANT FORMAL HEARING

___hof __ ___gw___ __jlp____ DENY APPLICATION

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

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INDEX

CASE ID	AR2002071122
SUFFIX
RECON	YYYYMMDD
DATE BOARDED	2002/07/23
TYPE OF DISCHARGE
DATE OF DISCHARGE
DISCHARGE AUTHORITY
DISCHARGE REASON
BOARD DECISION	DENY
REVIEW AUTHORITY
ISSUES 1. 310	131.0000/POST PROM
2.
3.
4.
5.
6.