RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:           14 October 2004
      DOCKET NUMBER:  AR2004103091


      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. Fred Eichorn                  |     |Chairperson          |
|     |Ms. Linda D. Simmons              |     |Member               |
|     |Mr. Richard T. Dunbar             |     |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, promotion to sergeant (SGT).

2.  The applicant states, in effect, that he was made a SGT just prior to
his unit shipping out of Italy to join the invasion of Southern France.

3.  The applicant provides a self-authored statement, a third-party
statement, photographs, a Delay and Referral Notice (DA Form 209), and a
Register Form for Recovered Prisoners of War (POW) in support of his
application.

CONSIDERATION OF EVIDENCE:

1.  The applicant is requesting correction of an alleged error or injustice
that occurred during his active duty service, which ended on 14 November
1945.  The application submitted in this case is dated 4 December 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 record shows that he was inducted into the
Army and entered active duty on 2 July 1943.  He served in the European
Theater of Operations (ETO) from 12 February 1944 through 17 August 1945
and he participated in the Arno, Southern France, Rhineland and Central
Europe campaigns of World War II.

4.  The applicant’s Service Record (AGO Form 24) confirms he was promoted
to the rank of private first class (PFC) on 1 April 1944 and to corporal
(CPL) on
23 August 1945.  A Statement or Report of Interview of Recovered Personnel
(WD AGO Form R5072) on file confirms the applicant was a POW from
2 September 1944 through 29 April 1945.  This document further shows that
the applicant was serving in the rank of private first class (PFC)
performing duties as a squad leader at the time of his capture.
5.  Army Service Forces, Office of the Commanding General, Ninth Service
Command, Fort Douglas, Utah, letter on file, dated 31 August 1945, confirms
the applicant was promoted to the rank of CPL under a special Army POW
promotion policy.  Headquarters, Ninth Services Command, Special Orders
Number 200, dated 23 August 1945, authorized the applicant’s promotion to
CPL under the provisions of this special policy.

6.  On 14 November 1945, the applicant was honorably separated.  The
separation document (WD AGO Form 53-55) he was issued at the time confirms,
in Item 3 (Grade) that he held the rank of CPL on the date of his
separation.  Item 38 (Highest Grade Held) confirms that CPL was the highest
rank he held while serving on active duty.

7.  On 28 November 1945, a service officer of the New Mexico Veterans of
Foreign Wars (VFW) of the United States submitted a letter to The Adjutant
General’s Officer (TAGO), Washington D.C. on behalf of the applicant.  This
letter stated the applicant believed he was entitled to the rank of SGT
beginning in July 1944 with back pay from that time through the date of his
discharge.  Letters from TAGO representatives dated 12 July 1946, 17
December 1946 and 6 September 1950 and a first endorsement, dated 14
September 1950, all indicate the applicant’s records confirmed he was
promotion to PFC on 1 April 1944, CPL on 23 August 1945 and that there was
no record found to show he was ever promoted to SGT while serving on active
duty.

8.  The applicant provides photographs of him in uniform showing him
wearing the rank insignia of a SGT.  He also provides a DA Form 209, which
shows his letter requesting promotion was referred to the TAGO on 10 May
1950.  Finally, he provides a register form that verifies his POW
information.

9.  The applicant also provides a third-party letter from an individual who
served with during World War II.  This individual states the applicant was
promoted to SGT between June and August 1944.  The applicant further
provides a letter of support from a VFW representative, which indicates the
data he reviewed seems to support the applicant’s claim.

10.  A letter published by TAGO, dated 17 August 1945, Subject:  Procedure
for processing, return, and reassignment of recovered personnel (Short
Title: POW), contained the Army’s special promotion policy and provided the
authority for promoting returning POWs.
DISCUSSION AND CONCLUSIONS:

1.  The applicant’s claim that he served as a SGT and should have been
promoted to that rank in 1944 and the supporting documents he provided were
carefully considered.  However, there is insufficient evidence to support
his promotion to this rank.

2.  The evidence of record confirms the applicant was promoted to CPL on
23 August 1945 under a special POW promotion policy and that he held this
rank on the date of his discharge, 14 November 1945.

3.  The record further shows that the applicant claimed entitlement to the
rank of SGT during his POW promotion interview in August 1945 and
subsequently in correspondence with TAGO beginning in 1946.  Records
reviews completed at the time of his initial claim and by the TAGO during
its subsequent reviews all confirmed the applicant was never promoted to
SGT.

4.  It appears from the photographs provided by the applicant and from
records entries indicating the applicant served as a squad leader make it
likely he was appointed an acting sergeant at some point in 1944.  However,
an acting appointment to a higher rank and performing duties associated
with that rank did not carry an automatic entitlement to promotion to the
higher rank.

5.  In view of the facts of this case, and given TAGO confirmed the
applicant was not promoted to SGT by proper authority at the time, there is
an insufficient evidentiary basis to support the applicant’s promotion at
this late date.

6.  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 has failed to
submit evidence that would satisfy this requirement.

7.  The records show the applicant should have discovered the error or
injustice now under consideration on 14 November 1945, the date of his
separation from active duty.  Therefore, 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.  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

_FE ____  _LDS____  _RTD___  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.




            ___FRED EICHORN____
                    CHAIRPERSON




                                    INDEX

|CASE ID                 |AR2004103091                            |
|SUFFIX                  |                                        |
|RECON                   |                                        |
|DATE BOARDED            |2004/10/DD                              |
|TYPE OF DISCHARGE       |HD                                      |
|DATE OF DISCHARGE       |1945/11/14                              |
|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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