RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:        7 July 2005
      DOCKET NUMBER:  AR20040007802


      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. Prevolia Harper               |     |Analyst              |

      The following members, a quorum, were present:

|     |Mr. Melvin H. Meyer               |     |Chairperson          |
|     |Mr. Eric N. Anderson              |     |Member               |
|     |Ms. Carol A. Kornhoff             |     |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 correction of his records to show his rank as
sergeant and his military occupational specialty (MOS) as combat engineer.

2.  The applicant states that a captain in his unit promoted him a sergeant
on 3 June 1944.  He further states that sergeant stripes was displayed on
his field jacket; however, after being wounded, he was transferred to a
hospital in a semiconscious state and at that time his clothes and dog tags
were removed.

3.  The applicant states that he left England on 1 June 1944 and when he
arrived in Normandy, France on 6 June 1944, he told the clerk that his rank
was wrong and he was told that it would be corrected later.  The applicant
further states that he is not requesting sergeant pay, but would appreciate
the recognition.

4.  The applicant also contends that item 30 (Military Occupational
Specialty) on his WD Form AGO Form 53-55 (Enlisted Record and Report of
Separation-Honorable Discharge) shows he was a truck driver.  The applicant
explains that he was a combat engineer and has never driven an Army truck
in his life.

CONSIDERATION OF EVIDENCE:

1.  The applicant is requesting correction of an alleged error which
occurred on 25 January 1945, the date of his separation from active
service.  The application submitted in this case is dated 15 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 that the
applicant’s records were lost or destroyed in that fire.  However, this
case is being considered using reconstructed records, which primarily
consist of his WD AGO Form 53-55 and
hospital admission cards of the Office of The Surgeon General of the Army.


4.  The applicant's WD AGO Form 53-55 shows that he was inducted into the
Army of the United States on 3 October 1943.  He entered active duty on
21 October 1943.  His MOS was 931 (Truck Driver) and he served in the
European-African-Middle Eastern Theater from 25 May 1944 to 5 November
1944.

5.  The applicant's WD AGO Form 53-55 shows in item 3 (Grade) the
applicant's rank as PVT [Private].  Item 4 (Arm or Service) contains the
entry "Engineers."  Item 6 (Organization) shows that the applicant was
assigned to Company C, 83rd Engineers at the time of his discharge from
active duty.

6.  The applicant was honorably discharged on 25 January 1945 in the rank
of private.  His WD AGO Form 53-55 does not contain an entry in item 38
(Highest Grade Held).

7.  There is no evidence in the available records that show the applicant
was promoted to sergeant.

8.  The applicant's honorable discharge certificate, which he authenticated
in his own hand shows that rank of private.

9.  The applicant's WD AGO Form 53-55 shows his MOS as (Truck Driver)
Item 41 (Service Schools Attended) shows that the applicant attended Auto
Mechanic School.

10.  The applicant's records contain Information from the hospital
admission cards of the Office of The Surgeon General of the Army shows that
the applicant was admitted to a medical treatment facility on 8 July 1944,
for treatment of a wound to the thigh.  This document only shows that the
applicant was an enlisted man and does not annotate a specific rank.  This
document also shows that the applicant was assigned to an engineer unit
which may have included combat, bridge, and pontoon units.

11.  Army Regulation 615-5 (Appointment and Reduction of NCOs and PFCs), in
effect at the time, provided that enlisted Soldiers who were eligible for
promotion would be recommended in writing, approved by the appropriate
authority, and orders issued confirming the promotion.  It also stated that
unit commanders were authorized to exceed their authorized allotments in
any grade by the number of vacancies that existed in a higher grade pending
the promotion of the best-qualified candidate(s).



12.  Paragraph 4c(3) of Army Regulation 615-5, in effect at the time,
stated that acting noncommissioned officers were entitled to wear the
insignia of the acting grade held and were to be obeyed and respected
accordingly.  Paragraph 4c(4) of this regulation stated that acting
noncommissioned officers were not entitled to the pay and allowances of the
acting grade to which appointed.

13.  Department of the Army Technical Manual TM 12-235 (Discharge
Procedures and Preparation of Separation Forms) established the policies
and procedures for completion and distribution of the WD AGO Form 53-55
(Enlisted Record and Report of Separation) at the time.  The regulation
states, in pertinent part, that the grade held at time of separation will
be entered in Item 3 (Grade) of the WD AGO Form 53-55.

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends that he was promoted to the rank of sergeant and
that his MOS was combat engineer.

2.  The applicant's discharge documents shows that he was discharged from
active duty in the rank of private.  The applicant authenticated his
discharge document which shows his rank as private.

3.  There is no evidence available which verifies that the applicant was
ever promoted to sergeant prior to his discharge on 25 January 1945.  He
may have been temporarily appointed to sergeant or made an acting sergeant;
however, there is insufficient basis in which to correct his discharge
document to show his rank as sergeant.

4.  The applicant's available records show he served in MOS 931 as a Truck
Driver in the European-African-Middle Eastern Theater of Operations.  There
is  no available evidence which indicates that the applicant served in the
MOS of a combat engineer.

5.  The applicant's records show that he attended Auto Mechanic School.
There was no regulatory provision in effect during World War II for
promotion of enlisted Soldiers based solely on their MOS.

6.  Based on the foregoing, there is insufficient evidence upon which to
justify a correction to his WD AGO Form 53-55 to change his rank and MOS.



7.  Records show the applicant should have discovered the error or
injustice now under consideration on 25 January 1945, the date of his
discharge from active duty.  However, the ABCMR was not established until 2
January 1947.  Therefore, the time for the applicant to file a request for
correction of any error or injustice expired on 1 January 1950.  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.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF

________  ________  ________  GRANT PARTIAL RELIEF

________  ________  ________  GRANT FORMAL HEARING

__mhm___  __ena___  __cak___  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.




                                        Melvin H. Meyer
                                  ______________________
                                            CHAIRPERSON



                                    INDEX

|CASE ID                 |AR20040007802                           |
|SUFFIX                  |                                        |
|RECON                   |                                        |
|DATE BOARDED            |20050707                                |
|TYPE OF DISCHARGE       |                                        |
|DATE OF DISCHARGE       |                                        |
|DISCHARGE AUTHORITY     |                                        |
|DISCHARGE REASON        |                                        |
|BOARD DECISION          |DENY                                    |
|REVIEW AUTHORITY        |                                        |
|ISSUES         1.       |129.0000                                |
|2.                      |                                        |
|3.                      |                                        |
|4.                      |                                        |
|5.                      |                                        |
|6.                      |                                        |


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