RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:        JANUARY 4, 2005
      DOCKET NUMBER:  AR2004106098


      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. Luis Almodova                 |     |Analyst              |

      The following members, a quorum, were present:

|     |Ms. Karen A. Heinz                |     |Chairperson          |
|     |Mr. Robert L. Duecaster           |     |Member               |
|     |Mr. James B. Gunlicks             |     |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 1-day lost time be deleted from
his record and that his record be corrected to show that he attended
Officer Candidate School.

2.  The applicant states, in effect, that he attended Officer Candidate
School, Class 199, at Fort Benning, Georgia, in December 1942.  He also
states that he was approximately 2-hours late in arriving at his post in
Italy outside of Rome.  He states that he was reduced in rank, fined, and
restricted to quarters.  He adds that he was not late an entire 24-hour
period therefore, he does not believe that 1 day AWOL (absence without
leave) is warranted on his record.

3.  The applicant provides a copy of his WD AGO Form 53-55, Enlisted Record
and Report of Separation – Honorable Discharge, a copy of his Honorable
Discharge from the Army of the United States, and letters he exchanged with
the National Personnel Records Center pertinent to the correction of his
records.

CONSIDERATION OF EVIDENCE:

1.  The applicant is requesting correction of alleged errors, which
occurred on 7 January 1946.  The application submitted in this case is
dated 20 February 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 were lost or destroyed in the National
Personnel Records Center fire of 1973.  Information herein was obtained
from reconstructed personnel records.

4.  The applicant's reconstructed records show that he was inducted into
the Army of the United States on 13 August 1942 and he entered service at
Pittsburgh, Pennsylvania, on 27 August 1942.

5.  The applicant served in the European Theater of Operations from 9 May
1943 through 29 June 1945 and in the Asiatic-Pacific Theater of Operations
from 30 May 1945 through 17 August 1945.

6.  The applicant was honorably separated in the grade of Private First
Class on 7 January 1946 at Fort Knox, Kentucky, in accordance with Army
Regulation (AR) 615-365, for the convenience of the Government, at
demobilization.

7.  Item 41 (Service Schools Attended), of the applicant's WD AGO For 53-
55, shows that he attended a 4-week, Infantry Noncommissioned Officer
School at Fort McClellan, Alabama.

8.  The applicant contends that he attended Officer Candidate School in
December 1942 at Fort Benning, Georgia, but that this is not recorded on
his separation document.  The applicant provided no documentary evidence to
support his contention.

9.  Item 38 (Highest Grade Held), of the applicant's WD AGO Form 53-55,
shows that the highest grade he held while in service was Sergeant.

10.  Item 55 (Remarks), of the applicant's WD AGO Form 53-55, shows that
the applicant was charged with 1-day time lost.

11.  The applicant states, in his application, that he was late in retuning
to his post in Italy outside of Rome.  He adds that he was approximately 2-
hours late but, he was not late an entire 24 hour period.

12.  Item 43 (Longevity for Pay Purposes) shows that the applicant had 3
years, 4 months, and 24 days longevity for pay purposes on the date he was
separated.

13.  Item 37 (Total Length of Service) shows that the applicant had 8
months and 24 days continental service and 2 years, 7 months and 16 days
foreign service, for a total of 3 years, 4 months and 24 days.

14.  DoDFMR, Volume 7A, paragraph 010104, specifies that when computing a
period of time, the beginning date of service [in this case, 2 August 1942]
will be subtracted from the ending date of service [in this case, 7 January
1946].  For each period of service, add 1 day to account for inclusive
date.  Explanation:  any period of service is at least 1 day.
15.  The applicant signed the WD AGO Form 53-55 and, he affixed his
thumbprint, in the appropriate space, on the date he was separated.

DISCUSSION AND CONCLUSIONS:

1.  There is no evidence, and the applicant provided none, to show that he
attended Officer Candidate School, Class 199, at Fort Benning, Georgia, in
December 1942.  Item 41 only shows that he attended a 4-week, Infantry
Noncommissioned Officer School at Fort McClellan, Alabama; therefore, there
is no basis upon which to approved the correction the applicant now seeks.

2.  The applicant provided no documentary evidence to support his
contention that he was not absent for the recorded 1-day now shown on his
separation document.  In this case, administrative regularity must be
presumed.  This means that it must be presumed that what the Army did at
the time of the applicant's separation was correct.

3.  Had the applicant not had the 1-days lost time, his service would have
amounted to 3 years, 4 months and 25 days, with the inclusive day.

4.  The evidence shows that the highest grade that the applicant held was
Sergeant.  He was separated in the grade of Private First Class.  By the
applicant's own admission, he was reduced in grade, fined, and restricted
to his quarters while he served in Italy.

5.  Since there is nothing in the available records or in anything the
applicant submitted to overcome that presumption, there is no basis upon
which to approved the deletion of the 1-day of time lost from his records.

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.  Records show the applicant should have discovered the alleged error or
injustice now under consideration on 7 January 1946, the date of his
separation from active duty.  However, the ABCMR was not established until
2 January 1947.  As a result, the time for the applicant to file a request
for correction of any error or injustice expired on 1 January 1950.
However, 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 the failure to timely file.


BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF

________  ________  ________  GRANT PARTIAL RELIEF

________  ________  ________  GRANT FORMAL HEARING

jbg _____  rld  _____  kh   _____  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.




                                  ___  __Karen A. Heinz___
                                            CHAIRPERSON



                                    INDEX

|CASE ID                 |AR2004106098                            |
|SUFFIX                  |                                        |
|RECON                   |                                        |
|DATE BOARDED            |20040105                                |
|TYPE OF DISCHARGE       |                                        |
|DATE OF DISCHARGE       |                                        |
|DISCHARGE AUTHORITY     |                                        |
|DISCHARGE REASON        |                                        |
|BOARD DECISION          |DENY                                    |
|REVIEW AUTHORITY        |                                        |
|ISSUES         1.  260  |123.0000                                |
|2.  267                 |123.0700                                |
|3.  1021                |100.0000                                |
|4.  8                   |100.0700                                |
|5.                      |                                        |
|6.                      |                                        |


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