RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:           14 June 2005
      DOCKET NUMBER:  AR20040007846


      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 his record be corrected to show
he was promoted to the highest rank authorized for his military
occupational specialty (MOS).

2.  The applicant states, in effect, that his unit commander would not take
the time to submit rating requests to their colonel, which prevented him
from being promoted.

3.  The applicant provides his Separation Document (WD AGO Form 53-55 and
Separation Qualification Record (WD AGO Form 100) in support of his
application.

CONSIDERATION OF EVIDENCE:

1.  The applicant is requesting correction of an alleged error or injustice
that occurred on 4 July 1946.  The application submitted in this case is
dated
11 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, WD AGO Form 100
and various documents provided in the reconstructed record provided by the
National Personnel Records Center (NPRC).

4.  The WD AGO Form 53-55 issued to the applicant upon his honorable
release from active duty on 26 August 1944 shows that he held and served in
the Infantry Branch in MOS 301 (Investigator).  Item 3 (Grade) and Item 38
(Highest Grade Held) contain the entry “PFC”, which indicate that private
first class (PFC) was the highest rank he attained while serving on active
duty.

5.  The separation document also shows that the applicant served in the
European Theater of Operations (ETO) from 16 January 1945 through 17 June
1946, and that he participated in the Rhineland and Central Europe
campaigns.  Item 31 (Military Qualifications) shows he was awarded the
Combat Infantryman Badge (CIB).  Item 33 (Decorations and Citations), as
amended by a 5 February 1993 correction to his separation document (DD Form
215), shows he earned the following awards during his active duty tenure:
European-African-Middle Eastern Campaign Medal, Army Good Conduct Medal,
World War II Victory Medal, Distinguished Unit Badge (now known as
Presidential Unit Citation), Bronze Star Medal and Army of Occupation Medal
with Germany Clasp.  On the date of his separation, the applicant
authenticated his WD AGO Form 53-55 with is signature in Item 56 (Signature
of Person Being Separated).

6.  The applicant’s file also includes a Separation Qualification Record
(WD AGO Form 100) that was prepared during his separation processing.  In
Item 3 (Grade) of this document, it shows the applicant held the rank of
PFC on the date of his separation.  The Military Occupational Assignments
portion of this form shows he served as a PFC for 12 months in MOS 607
(Mortar Gunner) and for 8 months in MOS 301 (Investigator).

7.  There is no indication in the separation document, or any of the
documents on file in the reconstructed record received from the NPRC, that
show the applicant was ever recommended for and/or was promoted to a grade
higher than PFC by proper authority during his tenure on active duty.

8.  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 contentions that he should have been promoted to the
rating authorized for his MOS prior to his separation was carefully
considered.  However, there is insufficient evidence to support this claim.


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 4 July 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.  The applicant authenticated this document with his
signature on the date of his separation from active duty.  This signature
was his verification that the information contained in the separation
document, to include the Item 3 and Item 38 grade entries, was correct at
the time the document was prepared and issued.

3.  The evidence also includes a WD AGO Form 100 that was prepared during
the applicant’s separation processing.  This document also confirms he held
the rank of PFC at the time, and that this was the highest rank he attained
while serving on active duty.

4.  The official documents of record fail to show the applicant was
recommended for, or promoted to a grade above PFC by proper authority
during his tenure on active duty.  Therefore, there is an insufficient
evidentiary basis to support a promotion at this late date.  The applicant
has also failed to provide independent evidence that would overcome the
presumption of Government regularity attached to his official authenticated
separation document.  As a result, the regulatory burden of proof necessary
to grant the requested relief has not been satisfied in this case.

5.  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.
6.  Records show the applicant should have discovered the alleged error or
injustice now under consideration on 4 July 1946, the date of his
separation from active duty.  Based on the date the Board was established,
2 January 1947, the time for him 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                 |AR20040007846                           |
|SUFFIX                  |                                        |
|RECON                   |                                        |
|DATE BOARDED            |2005/06/14                              |
|TYPE OF DISCHARGE       |HD                                      |
|DATE OF DISCHARGE       |1946/07/04                              |
|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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