RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:           10 August 2004
      DOCKET NUMBER:  AR2004103278


      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             |
|     |Mrs. Nancy L. Amos                |     |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 that his records be corrected to show he
received a battlefield commission.

2.  The applicant states his captain offered him a battlefield commission
twice.  The second time, his captain said he would not take "no" for an
answer.  They got orders to go to the Elbe River with the next mission to
take Berlin.  Then, orders came to let the Russians take Berlin.  The war
ended and the orders were never sent to Division headquarters.  They
finally got a second lieutenant before the drive to the Elbe River but he
was ambushed and killed.

3.  The applicant provides his discharge certificate; his WD AGO Form 53-55
(Enlisted Record and Report of Separation); his WD AGO Form 100 (Separation
Qualification Record) (illegible); and his Bronze Star Medal citation.

CONSIDERATION OF EVIDENCE:

1.  The applicant is requesting correction of an alleged injustice which
occurred on 20 October 1945.  The application submitted in this case is
dated 14 January 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 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.

4.  The applicant was inducted into the Army on 12 January 1942.  He
arrived in the European-African-Middle Eastern Theater of Operations on 23
February 1944.  He received a citation for a Bronze Star Medal for the
period 2 August
1944 though 26 April 1945 which indicates that, upon two occasions for a
total period of two months, he was given the task of leading a platoon in
combat.  He departed the Theater of Operations on 1 October 1945 and
separated on          20 October 1945 in the rank of Staff Sergeant.

5.  Public Law 77-252, dated 22 September 1941, provided that “during the
present emergency, temporary appointments as officers of the Army of the
United States could be made without appointing such persons as officers in
any particular component of the Army of the United States.” It further
provided that such appointments could be vacated at any time by the
President and, if not sooner vacated, would continue “during the present
emergency and 6 months thereafter.”

6.  The editions of Army Regulation 605-10 (Officers Appointed in the Army
of the United States) and changes thereto in effect between 1941 and 1949
implemented Public Law 77-252.  Army Regulation 605-10 dated 26 May 1944
provided that enlisted men and warrant officers of the Army who were not
graduates of officer candidate schools, or of a school or resident course
of instruction recognized by the War Department as qualifying them for a
commission and who were not former officers would not be appointed unless:

     (1) upon appointment the appointee passed his 30th birthday.
Exceptions could be made where the individual possessed a scarce category
of specialized skill in which not enough trained men were available to fill
the needs of the armed forces at the time required provided the individual
met all other requirements prescribed by regulations;

     (2) recommendation was accompanied by satisfactory evidence that the
individual possessed special ability of a technical or professional nature
qualifying him for duty as a commissioned officer in the particular
assignment for which he was recommended;

     (3) his Army General Classification Test score was 110 or higher;

     (4) the recommended individual was in the active military service of
the United States and had completed more than 4 months’ active military
service immediately preceding recommendation for appointment; and

     (5) he was recommended by a board of officers appointed by the
regimental or corresponding higher commander for the purpose of conducting
an appropriate examination.

DISCUSSION AND CONCLUSIONS:

1.  While the applicant's captain may have insisted on recommending him for
appointment to a commissioned officer, there is no evidence of record and
the applicant does not contend that a board of officers actually
recommended him for appointment.  Therefore, there is insufficient evidence
on which to grant the relief requested.

2.  Records show the applicant should have discovered the alleged error or
injustice now under consideration on 20 October 1945, the date of his
separation from active duty.  However, the ABCMR was not established until
2 January 1947.  Therefore, the time for the applicant to file a request
for correction of any error or injustice expired on 1 January 1950.  The
applicant 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 timely file in this case.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF

________  ________  ________  GRANT PARTIAL RELIEF

________  ________  ________  GRANT FORMAL HEARING

__gjw___  __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                 |AR2004103278                            |
|SUFFIX                  |                                        |
|RECON                   |                                        |
|DATE BOARDED            |20040810                                |
|TYPE OF DISCHARGE       |                                        |
|DATE OF DISCHARGE       |                                        |
|DISCHARGE AUTHORITY     |                                        |
|DISCHARGE REASON        |                                        |
|BOARD DECISION          |DENY                                    |
|REVIEW AUTHORITY        |Mr. Chun                                |
|ISSUES         1.       |131.00                                  |
|2.                      |                                        |
|3.                      |                                        |
|4.                      |                                        |
|5.                      |                                        |
|6.                      |                                        |


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