RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:            08 APRIL 2004
      DOCKET NUMBER:   AR2003096106


      I certify that hereinafter is recorded the true and complete record
of the proceedings 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. Raymond J. Wagner             |     |Chairperson          |
|     |Ms. Gail J. Wire                  |     |Member               |
|     |Mr. William D. Powers             |     |Member               |

      The applicant and counsel if any, did not appear before the Board.

      The Board considered the following evidence:

      Exhibit A - Application for correction of military records.

      Exhibit B - Military Personnel Records (including advisory opinion,
if any).

THE APPLICANT'S REQUEST, STATEMENT, AND EVIDENCE:

1.  The applicant requests that his separation document be corrected to
show that he was separated in the rank of corporal vice PFC (private first
class).

2.  The applicant states he was corporal at the time of his capture by
enemy forces, a corporal at the time of his repatriation, and a corporal at
the time of his discharge.  He states that he noted the error in 1948 “the
first time [he] looked at [his] discharge” but did not pursue a correction
until now.

3.  The applicant provides a copy of his POW (prisoner of war) medical
history, his separation document, and a photocopy of a page from his “pay
record book.”

CONSIDERATION OF EVIDENCE:

1.  The applicant is requesting correction of an error which occurred on
24 October 1945.  The application submitted in this case is dated 29 April
2003.

2.  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 allows the Army
Board for Correction of Military Records (ABCMR) to excuse failure to file
within the 3-year statute of limitation if the ABCMR determines that it
would be in the interest of justice to do so.  In this case, the ABCMR will
conduct a review of the merits of the case to determine if it would be in
the interest of justice to excuse the applicant’s failure to timely file.

3.  The applicant’s military records are not available to the Board for
review.  A fire destroyed approximately 18 million service members’ records
at the National Personnel Records Center in 1973.  It is believed that the
applicant’s records were lost or destroyed in that fire.  However, there
were sufficient documents remaining in a reconstructed record for the Board
to conduct a fair and impartial review of this case.

4.  The applicant entered active duty on 7 January 1942 and arrived in the
European Theater of Operations on 11 June 1942.  The photocopy from the
applicant’s “Soldier’s Individual Pay Record,” which he submitted with his
application, contains the handwritten entry “Aptd Corporal (from Pvt) R50
#38 par. 1 dated Dec. 12, 1942 (eff. Dec. 12, 1942).”  Other than
signatures, the remaining information in the document is typed.

5.  Subsequent pages of that same pay record, which were not provided by
the applicant with his application, but which were part of his
reconstructed file, indicate that he received the monthly payments totaling
$60.00 in October, November, and December 1942, and in January 1943.  The
pay document does not reflect an increase in pay based on the handwritten
entry in the pay record provided by the applicant.

6.  Documents available to the Board, including the applicant’s German POW
information sheet, indicate that enemy forces captured the applicant in
February 1943.  He was returned to United States Forces in April 1945,
after approximately 26 months in captivity.

7.  A 22 May 1945 report of physical examination indicated that the
applicant rank was private.  The applicant departed Europe on 16 June 1945
and arrived in the United States on 1 July 1945.  His original final
payment voucher, which he authenticated, indicated that he was appointed to
the rank of private first class from the rank of private on 29 September
1945.

8.  On 24 October 1945 the applicant was honorably discharged, in the rank
of private first class, as a result of demobilization.  The applicant
authenticated the information on his separation document with his signature
and thumbprint.  Item 38 (highest grade held) on the separation document
also indicates “PFC.”

9.  Photocopies of newspaper article recounting the applicant’s
identification as missing in action and subsequent liberation from enemy
forces all indicate the applicant’s rank as private.

10.  Subsequent to his separation from active duty, the applicant submitted
a War Claims Commission form, requesting compensation payable to ex-
prisoners of war under the War Claims Act of 1948 as amended by Public Law
303, 82nd Congress, 9 April 1952.  In that undated document, the applicant
indicated that he was serving in the rank of private at the time of his
capture and that “because our company commander told us if we wanted to
take our chances and say we were noncommissioned officers we could do so.”
He indicated in the form that “of which, I said I was a corporal of course”
and then went on to note that “I was discharged as PFC, maybe I should have
been discharged as corporal.”  While it is unclear when the applicant
submitted that form, it was likely between May 1952 and June 1953 when the
form expired.

11.  The POW Medical History, also submitted by the applicant in support of
his request was prepared in 1983 as part of an application procedure for
benefits from the Department of Veterans Affairs.

12.  Department of the Army announced, via message on 21 September 1945,
that enlisted Soldiers below the grade of master sergeant who had been
absent from military control, under honorable conditions, for eighteen
months or longer in a POW status and had not received a one grade promotion
since returning to military control could be advanced one grade by their
immediate commander.

DISCUSSION AND CONCLUSIONS:

1.  The applicant’s original final payment voucher indicates that the
applicant was promoted to the rank of private first class from the rank of
private on
29 September 1945.  The date of the promotion is consistent with the
21 September 1945 date that the Department of the Army announced the one
grade promotion authority for former POWs who had not previously been
promoted.  The fact that the applicant authenticated that same document,
that his monthly payments did not change between November 1942 and January
1943, and that he reported his grade as private at the time of capture on
his compensation request initiated shortly after World War II, all supports
a conclusion that the applicant had not been promoted to the rank of
corporal in December 1942.

2.  Unfortunately the individual pay record provided by the applicant and
the POW medical history, which the applicant completed in 1983, is not
supported by any other documents available to the Board, including his
original final payment voucher, which the applicant authenticated with the
notation that he had been promoted to the rank of private first class on 29
September 1945.  As such, in the absence of more compelling evidence that
the applicant was promoted to rank of corporal; the pay record and 1983 POW
medical history provide an insufficient basis to grant the relief request.

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

4.  Records show the applicant should have discovered the alleged error or
injustice now under consideration on 24 October 1945, the date of his
separation from active duty.  However, the ABCMR was not established until
2 January 1947.  As a result, the time for the applicant to file a request
for correction of any error or injustice expired on 1 January 1950.
However, the applicant did not file within the 3-year statute of
limitations and has not provided a compelling explanation or evidence to
show that it would be in the interest of justice to excuse the failure to
timely file.

BOARD VOTE:

________  ________  ________  GRANT RELIEF

________  ________  ________  GRANT FORMAL HEARING

__RJW __  __GJW _  __WDP__  DENY APPLICATION


BOARD DETERMINATION/RECOMMENDATION:

1.  The Board determined that the evidence presented does not demonstrate
the existence of a probable error or injustice.  Therefore, the Board
determined that the overall merits of this case are insufficient as a basis
for correction of the records of the individual concerned.

2.  As a result, the Board further determined that there is no evidence
provided which shows that it would be in the interest of justice to excuse
the applicant's failure to timely file this application within the 3-year
statute of limitations prescribed by law.  Therefore, there is insufficient
basis to waive the statute of limitations for timely filing or for
correction of the records of the individual concerned.




            __Raymond J. Wagner____
                    CHAIRPERSON




                                    INDEX

|CASE ID                 |AR2003096106                            |
|SUFFIX                  |                                        |
|RECON                   |YYYYMMDD                                |
|DATE BOARDED            |20040408                                |
|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.       |110.00                                  |
|2.                      |                                        |
|3.                      |                                        |
|4.                      |                                        |
|5.                      |                                        |
|6.                      |                                        |