MEMORANDUM OF CONSIDERATION


         IN THE CASE OF:
        


         BOARD DATE: 1 May 2003
         DOCKET NUMBER: AR2002081777

         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. Wanda L. Waller		Analyst

The following members, a quorum, were present:

Mr. Thomas B. Redfern		Chairperson
Ms. Linda D. Simmons		Member
Mr. John T. Meixell		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: In effect, as the son of a deceased former service member (FSM), that his father's military records be corrected to show that he earned a battlefield promotion as a second lieutenant.

APPLICANT STATES: That his father, at the time of his death on 24 March 1945, was working as a second lieutenant but was put to rest as a sergeant. In support of his application, he submits a letter of explanation, dated 18 October 2002; a letter, dated 23 January 2001, from the Army Board for Correction of Military Records; a Report of Death, dated 11 April 1945; a letter, dated 11 April 1945, from the Commanding Officer of the 466th Parachute Field Artillery Battalion; a letter, dated 26 May 1945, from a Chaplain of the 17th Airborne Division Artillery; a Certification of Military Service issued on 16 June 2000; a letter, dated 25 April 1945, awarding the FSM the Purple Heart; a newspaper article titled, "Killed in Action"; an inventory of the FSM's personal effects, dated 10 May 1945; an undated Messageform; a Report of Burial, dated 31 March 1945; a letter, dated 29 August 1946, from the Office of the Quartermaster General; a Receipt of Remains, dated 28 October 1945; and an untitled document, dated 24 March 1945.

EVIDENCE OF RECORD: The FSM's military records were lost or destroyed in the National Personnel Records Center fire of 1973. Records available to the Board were obtained from alternate sources and show that he enlisted on
2 September 1941 and was assigned to the 466th Parachute Field Artillery Battalion of the 17th Airborne Division during World War II. The FSM served as a Battalion Liaison sergeant in the European Theater of Operations until he was killed in action on 24 March 1945 in Germany.

In support of his claim for his father's battlefield commission as a second lieutenant, the applicant provided a letter, dated 11 April 1945, from the Commanding Officer of the 466th Parachute Field Artillery Battalion. This letter states, in pertinent part, "Because of his qualities of leadership, his ability to understand his fellow soldier and his intelligence, he had, prior to his death, been recommended for a field commission as Second Lieutenant" and "He was at that time performing the duties and assignment of an officer instead of an enlisted man in anticipation of his forthcoming appointment."

The available records fail to show that the FSM was officially recommended or tendered and accepted a battlefield commission as a second lieutenant.

A Joint Resolution, Public Law, 77-252, dated 22 September 1941, provided that, “during the present emergency, temporary appointments as officers of the Army of the United States could be made without appointing such persons as officers in any particular component of the Army of the United States.” It further provided that such appointments could be vacated at any time by the President and, if not sooner vacated, would continue ”during the present emergency and 6 months thereafter.”

The editions of Army Regulation 605-10 and changes thereto in effect between 1941 and 1949 implemented Public Law 77-252. Army Regulation 605-10 dated 26 May 1944 provided that enlisted men and warrant officers of the Army who were not graduates of officer candidate schools, or of a school or resident course of instruction recognized by the War Department as qualifying them for a commission and who were not former officers would not be appointed unless:
(1) upon appointment the appointee passed his 30^th birthday. Exceptions could be made where the individual possessed a scarce category of specialized skill in which not enough trained men were available to fill the needs of the armed forces at the time required provided the individual met all other requirements prescribed by regulations; (2) recommendation was accompanied by satisfactory evidence that the individual possessed special ability of a technical or professional nature qualifying him for duty as a commissioned officer in the particular assignment for which he was recommended; (3) his Army General Classification Test score was 110 or higher; (4) the recommended individual was in the active military service of the United States and had completed more than 4 months’ active military service immediately preceding recommendation for appointment; and (5) he was recommended by a board of officers appointed by the regimental or corresponding higher commander for the purpose of conducting an appropriate examination. 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, the qualifications for appointment would be as indicated in the special War Department instructions authorizing the appointments.

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. Evidence of record shows that the FSM was a sergeant at the time of his death on 24 March 1945.

2. The Board considered the applicant's contention that at the time of his father's death on 24 March 1945, he was working as a second lieutenant but was put to rest as a sergeant.

3. The Board also reviewed the letter, dated 11 April 1945, which indicates the FSM had been performing the duties and assignment of an officer and that he had been recommended for a field commission as a second lieutenant. However, in the absence of promotion orders or other evidence of record showing that the FSM was tendered and accepted a temporary appointment as a second lieutenant, the Board determined that this letter is not sufficient as a basis for a battlefield commission as a second lieutenant. Therefore, there is no basis for granting the applicant's request that his father's military records be corrected to show that he earned a battlefield commission as a second lieutenant.

4. 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.

5. 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

TBR____ LDS_____ JTM_____ DENY APPLICATION

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

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INDEX

CASE ID	AR2002081777
SUFFIX
RECON
DATE BOARDED	20030501
TYPE OF DISCHARGE
DATE OF DISCHARGE
DISCHARGE AUTHORITY
DISCHARGE REASON
BOARD DECISION	DENY
REVIEW AUTHORITY
ISSUES 1.	131.0000
2.
3.
4.
5.
6.