RECORD OF PROCEEDINGS
IN THE CASE OF:
BOARD DATE: 19 APRIL 2005
DOCKET NUMBER: AR20040003410
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 Wagner | |Chairperson |
| |Mr. Larry Bergquist | |Member |
| |Mr. Larry Olson | |Member |
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 rank on his 1954 separation document be
corrected to show that he was separated in the rank of corporal.
2. The applicant states he was promoted to corporal just prior to his
separation and that the promotion was “not notated” on his separation
document.
3. The applicant provides no evidence in support of his request.
CONSIDERATION OF EVIDENCE:
1. The applicant is requesting correction of an alleged error or injustice
which occurred on 8 December 1954. The application submitted in this case
is dated
23 June 2004.
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 limitations 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’s separation document indicates that he entered active
duty on 22 January 1953 and was released from active duty on 8 December
1954. His separation document, which he would have authenticated,
indicates that he had been promoted to the temporary grade of private first
class on 16 April 1954.
5. In a 1973 Department of Veterans Affairs original claim for disability
compensation the applicant reported his “last grade, rate or rank” as “PFC
(T)” (private first class-temporary).
6. During the Korean War era, promotions were all locally managed based on
vacancies (with some quotas imposed by Department of the Army) and required
that an individual be recommended for promotion and appear before a local
promotion board.
DISCUSSION AND CONCLUSIONS:
1. Unfortunately, there is no evidence, and the applicant has not provided
any, that he was ever recommended for or selected for promotion beyond the
grade of private first class.
2. The evidence available to the Board indicates that the applicant’s
separation document indicated he was a private first class at the time of
his separation and reported that same information on a Department of
Veterans Affairs Form in 1973.
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 8 December 1954; therefore, the time
for the applicant to file a request for correction of any error or
injustice expired on
7 December 1957. 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
failure to timely file in this case.
BOARD VOTE:
________ ________ ________ GRANT FULL RELIEF
________ ________ ________ GRANT PARTIAL RELIEF
________ ________ ________ GRANT FORMAL HEARING
___RW__ ___LB __ ___LO __ 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 Wagner______
CHAIRPERSON
INDEX
|CASE ID |AR20040003410 |
|SUFFIX | |
|RECON |YYYYMMDD |
|DATE BOARDED |20050419 |
|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. | |
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