RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:          10 August 2004
      DOCKET NUMBER:  AR2004100762


      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. Gail J. Wire                  |     |Chairperson          |
|     |Ms. Karen A. Heinz                |     |Member               |
|     |Mr. Paul M. Smith                 |     |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 rank of staff sergeant
(SSG) be reinstated.

2.  The applicant states, in effect, that he was unjustly demoted.  He
claims that he repeatedly confronted a soldier who was stealing food and
supplies from the kitchen.  Finally, the soldier threatened him and started
a fight and he defended himself.  He states his superiors knew of the
circumstances and he was advised to apply for reinstatement of his rank
about a month before D-Day.  He states he was unaware of the importance of
reinstatement.

3.  The applicant provides a self-authored statement in support of his
application.

CONSIDERATION OF EVIDENCE:

1.  The applicant is requesting correction of an alleged error or injustice
which occurred on 19 August 1945.  The application submitted in this case
was received on 12 November 2003.

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 limitation 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.  This case is
being considered using the applicant’s WD AGO Form 53-55.

4.  The WD AGO 53-55 issued to the applicant on the date of his separation,

19 August 1945, shows that he enlisted in the Army and entered active duty
on
5 March 1940.  He departed to serve in the European Theater of Operations
on
2 August 1942 and returned to the United States on 23 June 1945.

5.  The applicant’s separation document also shows that his military
qualifications included the Combat Infantryman Badge and that during his
tenure on active duty, he was awarded the Army Good Conduct Medal, Purple
Heart, American Defense Service Medal, European-African-Middle Easter
Campaign Medal, and Legion of Merit.

6.  The applicant’s WD AGO Form 53-55 shows that the highest grade he held
while serving on active duty was SSG, as indicated in Item 38 (Highest
Grade Held).  However, Item 3 (Grade) of the separation document confirms
he held the rank of PVT on the date of his separation.  The applicant
authenticated the
WD AGO Form 53-55 with his signature in Item 56 (Signature of Person Being
Separated) on 19 August 1945, the date of his separation.

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 highest grade a member held while serving
on active duty would be entered in Item 38 (Highest Grade Held).  However,
it stipulated that the grade held on the date of separation would be
entered in Item 3 (Grade).

DISCUSSION AND CONCLUSIONS:

1.  The available evidence does not include the facts and circumstances
surrounding the applicant’s reduction.  However, it does include a properly
constituted WD AGO Form 53-55 that confirms that the highest grade the
applicant held while serving on active duty was SSG, but that he held the
grade of PVT on the date of his separation from active duty.

2.  The evidence shows that the applicant authenticated his WD AGO Form
53-55 with his signature on 19 August 1945, the date of his separation.
This indicates that he verified that the information contained in the
separation document, to include the rank listed in Item 3 (Grade), 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.  Notwithstanding his current
assertion that his reduction was unjust, he has failed to submit evidence
that would satisfy this requirement.
4.  Notwithstanding the applicant’s current medical problems, which are
unfortunate, lacking any evidence to corroborate his claim that his
reduction was unjust, there is an insufficient evidentiary basis to support
granting the requested relief in this case.

5.  The records show the applicant should have discovered the error or
injustice now under consideration on 19 August 1945, the date of his
separation from active duty.  Therefore, based on the date the Board was
established, 2 January 1947, the time for the applicant to file a request
for correction of any error or injustice expired on 1 January 1950.
However, he 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 file.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF

________  ________  ________  GRANT PARTIAL RELIEF

________  ________  ________  GRANT FORMAL HEARING

___GAW_ __KAH___  ___PMS__  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.




            __     Gail J. Wire______
                    CHAIRPERSON

                                    INDEX

|CASE ID                 |AR2004100762                            |
|SUFFIX                  |                                        |
|RECON                   |                                        |
|DATE BOARDED            |2004/08/DD                              |
|TYPE OF DISCHARGE       |HD                                      |
|DATE OF DISCHARGE       |1945/08/15                              |
|DISCHARGE AUTHORITY     |AR 615-3653                             |
|DISCHARGE REASON        |Demobilization                          |
|BOARD DECISION          |DENY                                    |
|REVIEW AUTHORITY        |                                        |
|ISSUES         1.  803  |144.9213                                |
|2.                      |                                        |
|3.                      |                                        |
|4.                      |                                        |
|5.                      |                                        |
|6.                      |                                        |


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