RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:           13 September 2005
      DOCKET NUMBER:  AR20040011089


      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:

|     |Ms. Shirley L. Powell             |     |Chairperson          |
|     |Mr. Robert L. Duecaster           |     |Member               |
|     |Ms. Jeanette R. McCants           |     |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 rank listed on the
separation document (WD AGO Form 53-55) of his deceased father, a former
service member (FSM), be corrected.

2.  The applicant states, in effect, his father’s rank should have been
listed as Technician Five (Tec 5) on his separation document and he
believes the rank was inadvertently listed as private first class (PFC) due
to an administrative oversight.

3.  The applicant provides a self-authored letter, a partial WD AGO Form 53-
55, and a separation qualification record (WD AGO Form 100) in support of
the application.

CONSIDERATION OF EVIDENCE:

1.  The applicant is requesting correction of an alleged error or injustice
that occurred on 29 September 1945.  The application submitted in this case
is dated 22 November 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, 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 a WD AGO
Form 53-55, WD AGO Form 100 and a
WD Form 372A (Final Payment Work Sheet).

4.  The FSM’s WD Form 53-55 shows he was inducted into the Army and entered
active duty on 5 December 1941 and continuously served on active duty until
being honorably separated on 29 September 1945.  Item 3 of this document
shows that he held the rank of PFC on the date of his separation and Item
38 (Highest Grade Held) indicates that the highest grade he held and served
in was Tec 5.

5.  The FSM’s WD AGO Form 100 indicates that he held the rank of PFC at the
time he was separated.  This document also shows that he held the rank of
Tec 5, while performing duties as a cargo checker and winch operator.

6.  The WD Form 372A on file confirms that the applicant held the rank of
PFC on the date of his separation and that his final pay was based on this
grade.

7.  War Department Technical Manual 12-235 (Discharge and Release From
Active Duty) provided the policy for the preparation, issue, and
distribution of separation documents at the time of the applicant’s
separation.  The guidance contained in this publication provided for
entering the rank held on the date of separation in Item 3 (Rank) and the
highest grade held in Item 38 (Highest Grade Held) of the WD AGO Form 53-
55.

DISCUSSION AND CONCLUSIONS:

1.  The applicant’s claim that the FSM’s separation document should show he
held the rank of Tec 5 on the date of his separation was carefully
considered.  However, while it is clear the FSM held and served in the rank
of Tec 5, as evidenced by entries in his WD AGO Form 53-55 and WD AGO Form
100, there is insufficient evidence to show he held that rank on the date
of his separation.

2.  The policy in effect at the time provided for entering the rank a
member held on the date of separation in Item 3 and the highest rank a
member held in Item 38 of the WD AGO Form 53-55.  The FSM’s WD AGO Form 53-
55 shows he held the rank of PFC on the date of his separation and that the
highest rank he held while on active duty was Tec 5.  There is no
indication the FSM ever questioned this rank entry prior to his death in
1958.

3.  A WD Form 372A on file verifies the FSM held the rank of PFC on the
date of his separation, and that he received his final pay based on that
grade.  The evidence appears to confirm the FSM held the rank of PFC on the
date of his separation and that this rank was properly entered in his
separation documents in accordance with the regulatory policy in effect at
the time.  Thus, there is an insufficient evidentiary basis to show any
error or injustice related to the rank entries contained on the FSM’s
separation documents at this late date.
4.  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 applicant failed to
submit evidence satisfying this requirement.

5.  Records show the FSM should have discovered the alleged error or
injustice related to his rank 29 September 1945, the date of his
separation.  Thus, 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.  The application was not filed within
the 3-year statute of limitations and the applicant has failed to provide a
compelling explanation or evidence showing it would serve 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

___SLP__  ___RLD _  __JRM__  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.




            ____Shirley L. Powell____
                    CHAIRPERSON

                                    INDEX

|CASE ID                 |AR20040011089                           |
|SUFFIX                  |                                        |
|RECON                   |                                        |
|DATE BOARDED            |2005/09/13                              |
|TYPE OF DISCHARGE       |HD                                      |
|DATE OF DISCHARGE       |1945/09/29                              |
|DISCHARGE AUTHORITY     |AR 615-365                              |
|DISCHARGE REASON        |Demobilization                          |
|BOARD DECISION          |DENY                                    |
|REVIEW AUTHORITY        |Mr. Chun                                |
|ISSUES         1.       |129.0500                                |
|2.                      |                                        |
|3.                      |                                        |
|4.                      |                                        |
|5.                      |                                        |
|6.                      |                                        |


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