MEMORANDUM OF CONSIDERATION


         IN THE CASE OF:
        


         BOARD DATE: 17 July 2003
         DOCKET NUMBER: AR2002082202

         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:

Ms. Joann Langston		Chairperson
Ms. Regan K. Smith		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 widow of a deceased former service member (FSM), that item 3a (Grade, Rate or Rank) on her late husband's DD Form 214 (Report of Transfer or Discharge) for the period ending 31 August 1961 be corrected to show Major 0-4 instead of Captain 0-3. She further requests that she be paid all back pay and allowances and retired pay of a lieutenant colonel.

APPLICANT STATES: In effect, that her late husband was promoted to permanent major on 29 December 1957; however, his DD Form 214 erroneously shows that he was retired as a captain in 1961. She argues that her husband's actual pay until he retired and his retired pay was that of a captain despite the fact that it appears the policy at the time was to retire officers at the next higher grade, which should have been lieutenant colonel in her husband's case. In support of her application, she submits a copy of the FSM's DD Form 214 for the period ending 31 August 1961; two DA Forms 66 (Officer Qualification Record); a letter, dated 26 June 1956, from the FSM to the applicant; a newspaper article; a Report of Casualty, dated 29 December 1972; and a copy of the FSM's death certificate.

EVIDENCE OF RECORD: The FSM's military records show:

The FSM served in the Army of the United States (AUS) from 7 April 1941 to
6 November 1941 and was transferred to the Enlisted Reserve Corps (ERC) on
7 November 1941. He was recalled from the ERC and ordered to active duty on 23 January 1942, served as a chief clerk in the European Theater of Operations and was discharged on 8 May 1945 to accept a commission as a second lieutenant in the AUS effective 9 May 1945.

The FSM was promoted to first lieutenant in the AUS on 16 October 1946 and promoted to temporary captain in the AUS on 4 January 1951.

The FSM's records also show that he was appointed a temporary first lieutenant in the USAR on 15 January 1948, appointed a permanent first lieutenant in the USAR on 15 October 1952 and appointed a captain in the USAR on 21 May 1953.

Records show the FSM was considered but not selected for temporary promotion to major in the AUS on 22 November 1957.

Records show the FSM was promoted to major in the USAR effective
29 December 1957. His promotion letter also states, in pertinent part, "If on active duty in a commissioned grade lower than that to which promoted, effective with this promotion, you are deemed to have accepted a temporary appointment in the grade in which serving and, if you do not have an uncompleted period of required active duty under law or regulations, you may elect to be relieved from active duty and receive your promotion subsequently thereto by completing the attached indorsement and returning it through military channels together with this letter."

There is no evidence that the FSM elected to be relieved from active duty upon receiving the promotion letter.

On 31 August 1961, the FSM was retired in the rank of captain from the AUS and transferred to the U.S. Army Reserve (USAR). He was placed on the AUS Retired List in the grade of major effective 1 September 1961.

Item 3a on the FSM's DD Form 214 shows the entry, "Capt [Captain] 0-3."

Item 32 (Remarks) on his DD Form 214 shows, in pertinent part, the entries "perm Major USAR aptd 29 Dec 57" [permanent Major USAR appointed
29 December 1957] and " Retired in grade Major."

Item 2 (Grade) on the FSM's DA Form 66 (Officer Qualification Record) shows the entry, "Capt" [Captain].

There is no evidence in the FSM's service personnel records that he was promoted to major or lieutenant colonel while serving on active duty in the AUS prior to his retirement from active duty on 31 August 1961.

Army Regulation 635-5 establishes the standardized policy for preparing and distributing the DD Form 214. The regulation, in effect at the time, provided that the grade in which the officer was serving at the time of separation as shown in item 2, DA Form 66, will be entered in item 3a of the DD Form 214. Pay grade will also be shown. Since this entry may be an officer's temporary (AUS) or permanent (Regular Army or Reserve) grade and does not show the date of appointment, additional entries will be made in item 32 (Remarks) to clarify the grade status.

Army Regulation 611-103 (Personnel Selection and Classification, Officer Qualification and Classification) provided for the initiation, maintenance, transmission, and disposition of DA Form 66 (Officer Qualification Record) with insert sheets, DA Form 66B and DA Form 66C; procedures and techniques for the classification of officer and warrant officer personnel; and initiation, distribution, and disposition of DA Form 66A (Report of Change for DA Form 66). This regulation states, in pertinent part, that the grade in which the officer is currently serving on active duty will be entered in pencil and in abbreviated form in item 2 (Grade) on the DA Form 66.

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 the FSM was promoted to temporary captain on
4 January 1951 while serving on active duty in the AUS. Evidence of record also shows the FSM was not selected for temporary promotion to major in the AUS on 22 November 1957. There is no evidence of record which shows the FSM was promoted to major while serving on active duty in the AUS prior to his retirement from active duty on 31 August 1961.

2. Item 2 on the FSM's DA Form 66 shows the entry, "Capt."

3. The governing regulation states that the grade in which the officer was serving at the time of separation as shown in item 2, DA Form 66, will be entered in item 3a of the DD Form 214. Pay grade will also be shown.

4. Item 3a on the FSM's DD Form 214 shows the entry, "Capt 0-3."

5. Contrary to the applicant's contention, item 3a on the FSM's DD Form 214 is correct as currently constituted.

6. Evidence of record shows the FSM was promoted to permanent major in the USAR on 29 December 1957. The governing regulation states that since item 3a on the DD Form 214 may be an officer's temporary (AUS) or permanent (Regular Army or Reserve) grade and does not show the date of appointment, additional entries will be made in item 32 (Remarks) to clarify the grade status. Item 32 on the FSM's DD Form 214 shows, in pertinent part, the entries "perm Major USAR aptd 29 Dec 57" and " Retired in grade Major." Therefore, item 32 is correct as currently constituted.

7. The Board noted the applicant's request that she be paid all back pay and allowances and retired pay of a lieutenant colonel. However, there is no evidence available to the Board, and the applicant has provided no evidence, which shows the FSM was promoted to lieutenant colonel prior to his retirement from active duty on 31 August 1961.

8. 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.

9. 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

JL_____ RKS_____ JTM_____ DENY APPLICATION

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

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INDEX

CASE ID	AR2002082202
SUFFIX
RECON
DATE BOARDED	20030717
TYPE OF DISCHARGE
DATE OF DISCHARGE
DISCHARGE AUTHORITY
DISCHARGE REASON
BOARD DECISION	DENY
REVIEW AUTHORITY
ISSUES 1.	131.0000
2.	128.0000
3.
4.
5.
6.