RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:           14 June 2005
      DOCKET NUMBER:  AR20040007424


      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, that the records of her deceased
husband, a former service member (FSM), be corrected to show he was
promoted to sergeant (SGT).

2.  The applicant states, in effect, that the FSM served during World War
II and participated in the defense of Pearl Harbor during the 7 December
1941 attack by the Japanese, and that he participated in the battles of
Guadalcanal and the Northern Solomons.  She claims the FSM was hospitalized
with malaria in September 1943.  While hospitalized, the FSM submitted
paperwork for his SGT rating, but he did not receive the paperwork due to
his return to the United States in December 1943.  She claims that while
serving at Fort Meade, Maryland, the FSM was again supposed to receive his
SGT rating, but because he was due to be demobilized, his commander gave
the promotion to another Soldier.  The FSM was not demobilized and was
instead reassigned to Camp Adair, Oregon, where his SGT rating was again
sent to him, but he again was not promoted.  The applicant claims the FSM
did not question the rating at the time of his discharge because his wife
was pregnant and due to deliver their first child, and taking care of his
family was the most important thing to him.

3.  The applicant provides the following documents in support of the
application:  Separation Document (WD AGO Form 53-55), Separation
Qualification Record (WD AGO Form 100), FSM’s Death Certificate, FSM Letter
to National Personnel Records Center (NPRC), Request Pertaining to Military
Records (SF 180), Release of Information (NA Form 13062),and Awards
Photograph.

CONSIDERATION OF EVIDENCE:

1.  The applicant is requesting correction of an alleged error or injustice
that occurred on 7 August 1945.  The application submitted in this case is
dated
13 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 FSM’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, there were sufficient documents
remaining in a reconstructed record for the Board to conduct a fair and
impartial review of this case.  This case is being considered using
reconstructed records, which primarily consist of the FSM’s separation
documents, WD AGO Form 53-55 and WD AGO Form 100, and the other documents
provided by the applicant.

4.  The WD AGO Form 53-55 issued to the FSM upon his honorable release from
active duty on 7 August 1945, shows that he enlisted in the Army and
entered active duty on 5 November 1940.  It further shows that he served in
the Pacific Theater of Operations (PTO) from 30 January 1941 through 15
November 1943. Item 3 (Grade) contains the entry “Cpl””, which indicates he
held the rank of corporal (CPL) on the date he was separated.  Item 38
(Highest Grade Held) also contains the entry “CPL”, which indicates this
was also the highest rank he had held while serving on active duty.  The
FSM authenticated this document with his signature in Item 56 (Signature of
Person Being Separated).

5.  The WD AGO Form 100 prepared on the FSM during his separation
processing contains the entry “CPL” the grade block.  The military
specialties portion of the form contains entries indicating that the
highest grade he performed duties in was CPL.  The FSM authenticated this
document with his signature on 7 August 1945.

6.  There is no indication in the available documents on file in the FSM’s
reconstructed record that shows he was ever recommended for, or promoted to
the rank of SGT 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.

DISCUSSION AND CONCLUSIONS:

1.  The applicant’s contention that the FSM should have been promoted to
SGT prior to his separation, and the supporting documents she submitted
were carefully considered.  However, 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
regulatory burden of proof.

2.  The available evidence includes a properly constituted WD AGO Form 53-
55 that was issued to the FSM upon his honorable separation from active
duty on
7 August 1945.  This document confirms he held the rank of CPL and that
this was the highest rank he held during his tenure on active duty service.
 The FSM authenticated this separation document with his signature, which
indicates he verified the information it contained, to include the CPL rank
entries in Items 3 and 38, was correct at the time the document was
prepared and issued.

3.  The evidence also includes a properly constituted WD AGO Form 100 that
was prepared on the FSM during his separation processing.  This document
confirms he held the rank of CPL at the time, and that this was the highest
grade in which he performed military duties.  The FSM also authenticated
this document with his signature on 7 August 1945, the date of his
separation from active duty.

4.  The veracity of the applicant’s contention that the FSM should have
been promoted prior to his separation from active duty is not in question.
There is also no question regarding the distinguished nature of the FSM’s
service during World War II.  However, absent some evidence of record to
confirm the applicant was ever recommended for and/or promoted to SGT by
proper authority while he was serving on active duty, there is an
insufficient evidentiary basis to support granting the requested relief at
this late date.

5.  Records show the FSM should have discovered the alleged error or
injustice now under consideration on 7 August 1945.  Therefore, based on
the date the Board was established, 2 January 1947, the time for the FSM to
file a request for correction of any error or injustice expired on 1
January 1950.  However, the FSM failed to file within the 3-year statute of
limitations and the applicant 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 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                 |AR20040007424                           |
|SUFFIX                  |                                        |
|RECON                   |                                        |
|DATE BOARDED            |2005/06/14                              |
|TYPE OF DISCHARGE       |HD                                      |
|DATE OF DISCHARGE       |1945/08/07                              |
|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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