RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:        8 March 2005
      DOCKET NUMBER:  AR20040000384


      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             |
|     |Mr. Robert J. McGowan             |     |Analyst              |

      The following members, a quorum, were present:

|     |Mr. Mark D. Manning               |     |Chairperson          |
|     |Ms. Barbara J. Ellis              |     |Member               |
|     |Mr. Paul M. Smith                 |     |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 DD Form 214 (Report of Separation from
the Armed Forces of the United States) be corrected to show his rank as
Sergeant (SGT).

2.  The applicant states that he was serving as a Section Sergeant in Korea
with Company D, 31st Infantry, 7th infantry Division.  He adds that the
company First Sergeant told him that he was recommended for promotion, but
he would have to extend his duty in Korea in order to get it.  He adds that
he declined to extend his tour.

3.  The applicant provides a copy of a roster for the Machine Gun Platoon
listing him as Corporal (CPL) [applicant], 1st Section Sergeant; a copy of
a 22 June 2003 letter to his US Senator; and a copy of his DD Form 214.

CONSIDERATION OF EVIDENCE:

1.  The applicant is requesting correction of an alleged error or injustice
which occurred on 8 August 1952.  The application submitted in this case is
dated 10 March 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 served in the Army of the United States from 8 November
1950 to 8 August 1952.  He served overseas in Korea for 11 months and 18
days.  His DD Form 214 shows that he was appointed to the temporary rank of
CPL on 14 December 1951.  It also shows that his permanent rank was Private
(PVT).

5.  The applicant was assigned to Company D, 31st Infantry, 7th Infantry
Division as a member of the Machine Gun Platoon.  The platoon had a
Lieutenant Platoon Leader, Sergeant First Class Platoon Sergeant, and one
other Sergeant, who served as the 2nd Section Sergeant.  The applicant, as
an acting CPL, served as the 1st Section Sergeant.

DISCUSSION AND CONCLUSIONS:

1.  The applicant's DD Form 214 clearly shows that he was a permanent PVT
and a temporary CPL at the time of his separation.

2.  The roster of the Machine Gun Platoon shows that the platoon was
extremely short of noncommissioned officers.  The applicant was chosen to
serve as a Section Sergeant even though he was a permanent PVT and an
acting CPL.  This was not an uncommon occurrence in the Army during the
period of the Korean War.  The applicant's elevation to a leadership
position speaks to his outstanding abilities.

3.  The applicant states that he was promised a promotion to Sergeant
provided he extend his tour in Korea.  He admits that he declined to
extend; this would indicate that he was never promoted to Sergeant.

4.  Records show the applicant should have discovered the alleged error or
injustice now under consideration on 8 August 1952; therefore, the time for
the applicant to file a request for correction of any error or injustice
expired on 7 August 1955.  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

__mdm___  __bje___  __pms___  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.



                                        Mark D. Manning
                                  ______________________
                                            CHAIRPERSON



                                    INDEX

|CASE ID                 |AR20040000384                           |
|SUFFIX                  |                                        |
|RECON                   |                                        |
|DATE BOARDED            |20050308                                |
|TYPE OF DISCHARGE       |                                        |
|DATE OF DISCHARGE       |                                        |
|DISCHARGE AUTHORITY     |                                        |
|DISCHARGE REASON        |                                        |
|BOARD DECISION          |DENY                                    |
|REVIEW AUTHORITY        |                                        |
|ISSUES         1.       |110.0000                                |
|2.                      |                                        |
|3.                      |                                        |
|4.                      |                                        |
|5.                      |                                        |
|6.                      |                                        |


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