RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:           23 September 2004
      DOCKET NUMBER:  AR2004104480


      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. Raymond J. Wagner             |     |Chairperson          |
|     |Mr. Roger Able                    |     |Member               |
|     |Ms. Eloise C. Prendergast         |     |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 record be corrected to show
he held the rank of sergeant (SGT) on the date of his separation from
active duty and that he was awarded the Combat Infantryman Badge (CIB).

2.  The applicant states, in effect, that his correct rank is SGT and he
would like his separation document (DD Form 214) corrected to reflect the
proper rank.  He also indicates that he was awarded the CIB and it was not
included in the list of awards contained on his DD Form 214.

3.  The applicant provides the following documents in support of his
application:  DD Form 214, dated 27 September 1952; SGT Promotion Orders;
Unit Morning Report Extract, dated 9 May 1952; and CIB Orders.

CONSIDERATION OF EVIDENCE:

1.  The applicant is requesting correction of alleged error or injustice
that occurred on 27 September 1952.  The application submitted in this case
was received on 15 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 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 the
applicant’s DD Form 214 and other documents he provided.
4.  The applicant’s DD Form 214 shows that he was honorably released from
active duty on 27 September 1952, after completing a total of 1 year, 10
months and 25 days of active military service.

5.  Item 3 (Grade-Rate-Rank and Date of Appointment) of the applicant’s DD
Form 214 contains an entry indicating that the applicant held the rank of
corporal (CPL) on the date of his separation.

6.  Item 6 (Qualifications) of the applicant’s separation document contains
an entry indicating he held the military occupational specialty 3060
(Cook).

7.  Item 27 (Decorations, Medals, Badges, Commendations, Citations and
Campaign Ribbons Awarded or Authorized) of the applicant’s DD Form 214
shows that during his tenure on active duty, he earned the Army of
Occupation Medal with Japan Clasp, Korean Service Medal with 1 bronze
service star, United Nations Medal, and 1 Overseas Bar.

8.  The applicant authenticated the DD Form 214 with his signature in Item
48 (Signature of Person Being Separated).

9.  The applicant provides a copy of Special Orders (SO) Number (#) 34,
dated
23 February 1952, issued by Headquarters, 160th Infantry Regiment, Korea.
These orders awarded him the CIB, for exemplary performance of duty in
ground combat against the enemy in Korea.

10.  The applicant also provides a copy of SO # 86, dated 7 May 1952,
issued by Headquarters, 160th Infantry Regiment.  These orders authorized
his promotion to SGT, effective 8 May 1952.  He also provides a morning
report extract from Company F, 160th Infantry Regiment, dated 9 May 1952,
which verifies the enlisted promotions made by these orders.
DISCUSSION AND CONCLUSIONS:

1.  The applicant’s request that the rank listed on his DD Form 214 be
changed from CPL to SGT was carefully considered.  However, insufficient
evidence has been found to support this change.

2.  The available evidence contains orders authorizing the applicant’s
promotion to SGT on 7 May 1952.  However, without the applicant’s military
records, it is impossible to determine he still held this rank on the date
of his REFRAD some two months later.  Further, there is a properly
constituted DD Form 214 on file that confirms he held the rank of CPL on
the date he was separated,
27 September 1952.

3.  The applicant authenticated his DD Form 214 with his signature, thereby
verifying that the information it contained, to include his rank, was
correct when the DD Form 214 was prepared and issued.  There is also no
indication that he raised the rank issue at the time of separation or in
the more than 50 years that have passed since.  As a result, there is an
insufficient evidentiary basis to support changing his rank at this late
date.

4.  Records show the applicant should have discovered the alleged error in
his rank now under consideration on 27 September 1952.  Therefore, the time
for him to file a request for correction of any error or injustice expired
on
26 September 1955.  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
timely file in this case.

5.  The available evidence includes SO awarding the applicant the CIB.  The
omission of this award from the applicant’s separation document is an
administrative matter that does not require Board action to correct.  As a
result, an administrative correction of his record will be accomplished by
the Case Management Support Division (CMSD), St. Louis, Missouri, as
outlined in paragraph 3 of the BOARD DETERMINATION/RECOMMENDATION section
below.
BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF

________  ________  ________  GRANT PARTIAL RELIEF

________  ________  ________  GRANT FORMAL HEARING

_RJW___  ___RA___  __ECP__  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.

3.  The Board determined that administrative error in the records of the
individual should be corrected.  Therefore, the Board requests that the
CMSD-St. Louis administratively correct the records of the individual
concerned by adding the Combat Infantryman Badge to the list of authorized
awards contained in
Item 27 of his 27 September 1952 DD Form 214.




            __RAYMOND J. WAGNER  __
                    CHAIRPERSON

                                    INDEX

|CASE ID                 |AR2004104480                            |
|SUFFIX                  |                                        |
|RECON                   |                                        |
|DATE BOARDED            |2004/09/                                |
|TYPE OF DISCHARGE       |HD                                      |
|DATE OF DISCHARGE       |1952/09/27                              |
|DISCHARGE AUTHORITY     |AR 615-363-5                            |
|DISCHARGE REASON        |ETS                                     |
|BOARD DECISION          |DENY                                    |
|REVIEW AUTHORITY        |                                        |
|ISSUES         1.       |144.9213                                |
|2.                      |                                        |
|3.                      |                                        |
|4.                      |                                        |
|5.                      |                                        |
|6.                      |                                        |


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