RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:        23 AUGUST 2005
      DOCKET NUMBER:  AR20040007058


      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. Gale J. Thomas                |     |Analyst              |

      The following members, a quorum, were present:

|     |Ms. Kathleen Newman               |     |Chairperson          |
|     |Mr. William Powers                |     |Member               |
|     |Ms. Marla Troup                   |     |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 by Presidential Proclamation he be made a
colonel and that the President recognize his “positive record by a special
proclamation as well.”

2.  The applicant states he was promoted from second lieutenant to first
lieutenant on 23 November 1942, from first lieutenant to assistant “G.1.
personnel” on 31 March 1941, and from first lieutenant to “Company P
Commander” on 7 March 1945.  He states that his position as company
commander of Company T called for a captain, but he never was promoted.  He
also states that the Assistant G-1 called for a captain.  He states that he
believes that his position as the Rome Area Assistant Commander and the
Assistant Provost Marshall called for a colonel’s promotion.

3.  The applicant states that he was the pay master for thousands of
officers and enlisted men and signed for thousands of jeeps, trucks, tanks,
etc. as the “Company T Commander.”

4.  The applicant provides numerous documents which would have made up his
Official Military Personnel File, including a copy of his 1946 separation
document, several orders appointing him as a Class A Agent for the purpose
of paying enlisted men, numerous copies of travel orders and assignment
orders, documents awarding him the Combat Infantryman Badge, certificates
confirming training, a 1943 request to be assigned duties where his French
speaking skills could be utilized and a copy of the denial of that request
because no appropriate vacancies existed, a copy of his 1942 recommendation
for promotion to first lieutenant, orders promoting him to first
lieutenant, and a document noting that effective 8 November 1944 he assumed
command of Company T, 2675th Regiment.

CONSIDERATION OF EVIDENCE:

1.  The applicant is requesting correction of an alleged error or injustice
which occurred on 16 February 1946.  The application submitted in this case
is dated
20 August 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, the
documents submitted by the applicant were sufficient for the Board to
conduct a fair and impartial review of this case and will be used to
reconstruct a military personnel file for the applicant.

4.  Documents provided by the applicant indicate that he was ordered to
active duty as a second lieutenant in March 1942.  His separation indicates
that he arrived in the European-African-Middle Eastern Theater of
Operations in May 1942.

5.  In November 1942 he was recommended for promotion to first lieutenant
and in December 1942 he was promoted.  In November 1943 he was awarded the
Combat Infantryman Badge.

6.  The orders and documents provided by the applicant, which would have
made up his military personnel file, indicate that he was appointed as a
Class A Agent Officer on several occasions, authorized to travel for the
purpose of paying Soldiers, as well as being authorized travel in several
other cases where the purpose was not specified.  None of the documents or
orders, provided by the applicant, however, indicate that he was ever
recommended for, or promoted beyond first lieutenant.

7.  In November 1944 the applicant assumed command of Company T, 2675th
Regiment.  In September 1945 he departed Europe and on 16 February 1946 he
was relieved from active duty.  The documents provided by the applicant do,
however, indicate that he continued his association with the military as a
member of the Army Reserve at least until 1 April 1953 when he was
discharged.  None of the documents associated with his service after his
release from active duty indicate he was ever promoted beyond the grade of
first lieutenant.




8.  On 31 October 1945, the War Department announced a new promotion policy
for officers being released from active duty as the result of the
demobilization after WWII.  This guidance was modified on 13 December 1945,
and was published as War Department Circular 10, dated 11 January 1946.
These documents, in pertinent part, provided for the terminal leave
promotions of certain officers to the next higher rank provided they had
held their prior rank for a specified period of time and attained a minimum
efficiency index of 40 or better. The efficiency index was computed
utilizing an officer’s available efficiency ratings for all active service
subsequent to 16 September 1940.  Promotions were temporary, effective on
the date of departure, either on terminal leave, or on authorized detached
service for travel time to home, expired automatically, and did not affect
the status of the individual in the Officers’ Reserve Corps in his lower
permanent grade.  In the cases of officers who had already been relieved
from active duty, promotion was to be made only by The Adjutant General.
Promotions under the foregoing provisions were generally referred to as
“terminal leave promotions.”

9.  There were no officer efficiency ratings available to the Board
pertaining to the applicant.

10.  Presidential proclamations are of two types: (1) ceremonial,
designating periods of special observance, or (2) substantive, usually
dealing with trade. Most proclamations address the general public, and may
or may not have a legal effect.

DISCUSSION AND CONCLUSIONS:

1.  The fact that the applicant may have held a specific position which he
believes warranted promotion is not a basis to grant such promotion, nor
would such promotion be effected by a Presidential Proclamation.

2.  While the applicant may have been eligible for a “terminal leave
promotion,” unfortunately, the absence of any efficiency reports makes it
impossible to determine if he met the requirements for such a promotion.
In the absence of those reports the Board is unable to conclude that the
applicant should have received a one-grade promotion at the time of his
release from active duty.  Notwithstanding the absence of those reports, it
is also noted that the promotion would merely have been temporary, would
not have had any effect on pay or allowances or the applicant’s grade while
in the Reserve, and would have automatically expired.

3.  Records show the applicant should have discovered the alleged error or
injustice now under consideration on 16 February 1946, the date of his
separation from active duty.  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.  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 FULL RELIEF

________  ________  ________  GRANT PARTIAL RELIEF

________  ________  ________  GRANT FORMAL HEARING

___KN __  ___WP __  ___MT __  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.




                                  ____Kathleen Newman______
                                            CHAIRPERSON



                                    INDEX

|CASE ID                 |AR20040007058                           |
|SUFFIX                  |                                        |
|RECON                   |YYYYMMDD                                |
|DATE BOARDED            |20050823                                |
|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.       |131.00                                  |
|2.                      |                                        |
|3.                      |                                        |
|4.                      |                                        |
|5.                      |                                        |
|6.                      |                                        |


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