RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:           21 September 2004
      DOCKET NUMBER:  AR2004101130


      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. James C. Hise                 |     |Chairperson          |
|     |Ms. Barbara J. Ellis              |     |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 be changed from
technical sergeant (T-SGT) to first sergeant (1SG).

2.  The applicant states, in effect, that he held the job of 1SG and was
offered and accepted the rank of 1SG.  However, orders were never published
authorizing the promotion, but he was told the promotion had been approved.


3.  The applicant provides a copy of his 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 7 December 1946.  The application submitted in this case
is dated 10 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.  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 that primarily consist of the
separation qualification record he provided and his separation document (WD
AGO Form 53-55).

4.  The applicant’s WD AGO Form 53-55 shows that he was inducted into the
Army and entered active duty on 17 March 1945.  It further shows that he
served in the Pacific Theater of Operations (PTO) from 25 October 1945
through
8 October 1946 and that during his active duty tenure he received the
Asiatic-Pacific Campaign Medal, World War II Victory Medal, Army Good
Conduct Medal and Army of Occupation Medal with Japan Clasp.

5.  The applicant’s WD AGO Form 53-55 further shows that he was honorably
separated from active duty on 7 December 1946, after completing 1 year, 8
months and 21 days of active military service.  Item 3 (Grade) shows he
held the rank of TSGT on the date of his separation and Item 38 (Highest
Grade Held) confirms that TSGT was the highest rank he held while serving
on active duty.

6.  The WD AGO Form 100 provided by the applicant shows in Item 3 (Grade)
that held the rank of TSGT at the time of his separation.  The military
occupation assignments portion of this document contains an entry
indicating that he held the rank of sergeant while performing 1SG duties
for five months.  The summary of military occupations also contains a
comment indicating the applicant performed 1SG duties in a Field Artillery
Battalion in the PTO.  This document confirms the information contained in
the form was taken from records and supplemented by a personal interview
with the applicant.

DISCUSSION AND CONCLUSIONS:

1.  The applicant’s contention that his record should be corrected to show
the rank of 1SG was carefully considered.  However, there is insufficient
evidence to support this claim.

2.  The applicant’s properly constituted separation document confirms he
held the rank of TSGT on the date of his separation, and that this was the
highest rank he attained while serving on active duty.

3.  Although it is clear the applicant performed duties as a 1SG, as
evidenced by the WD AGO Form 100 entries, performing duties in a higher
rank alone does not automatically translate in a promotion to that rank.
Further, this same document confirms he held the rank of TSGT at the time
the form was prepared.  There is no available evidence showing the
applicant was qualified or recommended for promotion to 1SG, or that he was
ever selected for or promoted to this rank by a proper promotion authority.
 As a result, there is an insufficient evidentiary basis to support
granting the requested relief.

4.  Records show the applicant should have discovered the alleged error or
injustice now under consideration on 7 December 1946.  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

_JCH ___  _BJE____  __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.




            ____JAMES C. HISE ______
                    CHAIRPERSON



                                    INDEX

|CASE ID                 |AR2004101130                            |
|SUFFIX                  |                                        |
|RECON                   |                                        |
|DATE BOARDED            |2004/09/DD                              |
|TYPE OF DISCHARGE       |HD                                      |
|DATE OF DISCHARGE       |1946/12/07                              |
|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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