RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:           14 June 2005
      DOCKET NUMBER:  AR20040007164


      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. Joseph A. Adriance            |     |Analyst              |

      The following members, a quorum, were present:

|     |Mr. John N. Slone                 |     |Chairperson          |
|     |Mr. Hubert O. Fry                 |     |Member               |
|     |Ms. Linda D. Simmons              |     |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, in effect, promotion to corporal (CPL) and
award of the Expert Rifle Badge.

2.  The applicant states, in effect, that he qualified for the Expert Rifle
Badge at Shenango, Pennsylvania in February or March 1944.  He also states
that he was recommended for promotion contingent on his next duty
assignment.  However, because he was never assigned to the organization
with a “TO”, he never received the promotion.  He claims that he was told
by a lieutenant that he would get his rank when he was arrived overseas.

3.  The applicant provides a separation document (WD AGO Form 53-55) in
support of his application.

CONSIDERATION OF EVIDENCE:

1.  The applicant is requesting correction of an alleged error or injustice
that occurred on 17 April 1946.  The application submitted in this case is
dated
 8 September 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 his
records were lost or destroyed in that fire.  However, the Board elected to
review the case using the applicant’s WD AGO Form 53-55.

4.  The WD AGO Form 53-55 issued to the applicant upon his honorable
release from active duty on 17 April 1946 shows that he was inducted into
the Army and entered active duty on 14 November 1942.  It further shows
that he served in the European Theater of Operations (ETO) from 6 May 1944
through 3 April 1946.

5.  Item 3 (Grade) of the applicant’s separation document contains the
entry “PFC”, which indicates he held the rank of private first class (PFC)
on the date he was separated from active duty.  Item 38 (Highest Grade
Held) also contains the entry “PFC”, which indicates this was also the
highest rank he held while serving on active duty.  Item 31 contains the
entry “Rifle MM”, which indicates the applicant qualified as a marksman
with his rifle.  The applicant authenticated this separation document with
his signature in Item 56 (Signature of Person Being Separated) on 17 April
1946, the date of his separation.

6.  There is no indication in the separation document, or any of the
documents on file in the reconstructed record received from the National
Personnel Records Center (NPRC), that the applicant was ever recommended
for and/or was promoted to CPL by proper authority; or that he ever
qualified expert with his rifle during his tenure on active duty.

7.  Technical Manual 12-235, which prescribed the policy and procedure for
the preparation and distribution of separation documents during the period
in question, and contained item by item entry instructions.  These
instructions indicated that the grade a member held on the date of
separation would be entered in Item 3 and the highest grade he held during
the active duty period covered by the report would be entered in Item 38.
It also indicated that military qualifications would be entered in Item 31.


DISCUSSION AND CONCLUSIONS:

1.  The applicant’s contentions that he should have been promoted prior to
his separation and that he qualified expert with his rifle were carefully
considered.  However, his separation document contains no entries that
support these claims, and the applicant has failed to provide independent
evidence to support his assertions.

2.  The available evidence includes a properly constituted WD AGO Form 53-
55 that was issued to the applicant upon his honorable separation from
active duty on 17 April 1946.  This document confirms he held the rank of
PFC on that date, and that this was the highest rank he held during his
tenure on active duty service.  It also verifies that he qualified as a
marksman with his rifle.  The applicant authenticated this document with
his signature on 17 April 1946, the day he was released from active duty.
This served as his verification that the information contained on the WD
AGO Form 53-55, to include the PFC rank entries in Items 3 and 38 and the
marksman entry in Item 31, was correct at the time the document was
prepared and issued.

3.  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 evidence provided in
this case does not satisfy this requirement.

4.  Records show the applicant should have discovered the alleged error or
injustice now under consideration on 17 April 1946.  Based on the date the
Board was established, 2 January 1947, the time for him to file a request
for correction of any error or injustice expired on 1 January 1950.
However, he failed to 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

___JNS _  ___HOF _  ___LDS _  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.




            ____John N. Slone______
                    CHAIRPERSON

                                    INDEX

|CASE ID                 |AR20040007164                           |
|SUFFIX                  |                                        |
|RECON                   |                                        |
|DATE BOARDED            |2005/06/14                              |
|TYPE OF DISCHARGE       |HD                                      |
|DATE OF DISCHARGE       |1946/04/17                              |
|DISCHARGE AUTHORITY     |AR 615-365                              |
|DISCHARGE REASON        |Demobilization                          |
|BOARD DECISION          |DENY                                    |
|REVIEW AUTHORITY        |                                        |
|ISSUES         1.  803  |144.9213                                |
|2.                      |                                        |
|3.                      |                                        |
|4.                      |                                        |
|5.                      |                                        |
|6.                      |                                        |


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