RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:        26 April 2005
      DOCKET NUMBER:  AR2004106871


      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. Paul Wright                   |     |Analyst              |

      The following members, a quorum, were present:

|     |Mr. Melvin H. Meyer               |     |Chairperson          |
|     |Ms. Karen A. Heinz                |     |Member               |
|     |Mr. Lawrence Foster               |     |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 separation document reflect
his highest grade of Sergeant, E-5.

2.  The applicant states that his separation document does not reflect his
highest grade held as Sergeant, E-5.

3.  The applicant provides a copy of orders awarding him the Bronze Star
Medal, a copy of the citation for the Bronze Star Medal, and a copy of his
WD AGO Form 53-55 (Enlisted Record and Report of Separation Honorable
Discharge).

CONSIDERATION OF EVIDENCE:

1.  The applicant is requesting correction of an alleged error or injustice
which occurred on 12 May 1945.  The application submitted in this case is
dated 1 April 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 limitations 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.  This case is
being considered using documents supplied by the applicant and cited above.


4.  The applicant was inducted into the Army of the United States on
18 November 1941.  He arrived in the European Theater of Operations on
7 August 1942, where he served as a "Radio Operator Low Speed."  He was
separated on 12 May 1945 in the grade of Tec 4 (Technician Grade 4).  His
Report of Separation shows his highest grade in Item 38 as Tec 4.
Additionally, it shows he was awarded the American Defense Service Medal, 1
Bronze Service Star, the European-African Middle Eastern Theater Ribbon,
the Good Conduct Ribbon, 1 Silver Battle Star, the Purple Heart, the Combat
Infantryman Badge, and the Distinguished Unit Citation.
5.  .  From 1 September 1942 through 31 July 1948, the enlisted grade
structure consisted of seven grades:

    Grade 7 – Private
    Grade 6 – Private First Class
    Grade 5 – Corporal/Technician Grade 5
    Grade 4 – Sergeant/Technician Grade 4
    Grade 3 – Staff Sergeant/Technician Grade 3
    Grade 2 – Technical Sergeant;
    Grade 1 – Master Sergeant/First Sergeant.

6.  The enlisted grade structure changed on 1 July 1955 to show the
designation of pay grades E-1 through E-7.  The structure was again changed
on 1 June 1958 to show pay grades of E-1 through E-9, which it is still in
effect today.

7.  The citation submitted by the applicant for his Bronze Star Medal
indicates his grade was Technician Grade 4 and he was assigned at the time
to Headquarters and Headquarters Company, 1st Battalion, 26th Infantry.
The citation indicates in a subsequent sentence "Sergeant [Applicant]
performed his duties as . . ."

8.  Army Regulation 615-5 (Appointment and Reduction of NCOs and PFCs), in
effect at the time, governed the appointment and reduction of
noncommissioned officers and Privates First Class.  In pertinent part, it
stated that overseas theater commanders and the Commanding Generals, Army
Ground Forces, Army Air Forces, and Army Service Forces could temporarily
appoint Soldiers as noncommissioned officers during an emergency under
special authorization of the War Department.

9.  It is noted that the applicant's award of the Bronze Star Medal is not
listed on his Report of Separation.  He has official orders for this award.

DISCUSSION AND CONCLUSIONS:

1.  The Board presumes administrative regularity in the preparation of the
applicant's Report of Separation. There is nothing in the available
records, or in anything submitted by the applicant, to overcome that
presumption.

2.  Both the citation narrative and the orders supplied by the applicant
for the Bronze Star Medal indicate that his grade was "Technician Grade 4."
 He may have been appointed as a temporary Sergeant (Grade 4).  This may
account for the use of the rank "Sergeant" in the narrative portion of the
citation. If he were a
temporary Sergeant, he would not have been authorized this title on his
Report of Separation upon his discharge.  Otherwise, it must be assumed
this was a typographical error, since there is no supporting evidence to
show a permanent authorization of this title.

3.  The ranks Technician Grade 4 and Sergeant were both the same pay grade
(Grade 4) for pay purposes.  The applicant's request for a pay grade of E-5
is not appropriate as this pay grade did not come into effect until 1955.

4.  Records show the applicant should have discovered the alleged error or
injustice now under consideration on 12 May 1945, 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.

5.  Evidence shows that the applicant's records contain administrative
error which does not require action by the Board.  Therefore,
administrative correction of the applicant's records will be accomplished
by the Case Management Support Division (CMSD), St. Louis, Missouri, as
outlined by the Board in paragraph 3 of the BOARD
DETERMINATION/RECOMMENDATION section below.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF

________  ________  ________  GRANT PARTIAL RELIEF

________  ________  ________  GRANT FORMAL HEARING

__mhm___  __kah___  __lf____  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 to show the award of the Bronze Star Medal on his Report of
Separation.



                                        Melvin H. Meyer
                                  ______________________
                                            CHAIRPERSON



                                    INDEX

|CASE ID                 |AR2004106871                            |
|SUFFIX                  |                                        |
|RECON                   |                                        |
|DATE BOARDED            |20050426                                |
|TYPE OF DISCHARGE       |                                        |
|DATE OF DISCHARGE       |                                        |
|DISCHARGE AUTHORITY     |                                        |
|DISCHARGE REASON        |                                        |
|BOARD DECISION          |(DENY)                                  |
|REVIEW AUTHORITY        |                                        |
|ISSUES         1.       |100.0000                                |
|2.                      |                                        |
|3.                      |                                        |
|4.                      |                                        |
|5.                      |                                        |
|6.                      |                                        |


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