RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:        10 November 2005
      DOCKET NUMBER:  AR20050000065


      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             |
|     |Ms. Prevolia A. Harper            |     |Analyst              |

      The following members, a quorum, were present:

|     |Ms. Margaret K. Patterson         |     |Chairperson          |
|     |Ms. Linda D. Simmons              |     |Member               |
|     |Mr. Michael J. Flynn              |     |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 rank be changed from a
technician fifth grade to a sergeant.

2.  The applicant states that his commanding officer was captured by the
Germans before he could put the paperwork in for his promotion.  The
applicant further states that he should have been discharged as a buck
sergeant and feels he earned the rank he was promised.

3.  The applicant provides a copy of his WD AGO Form 53-55 in support of
his application.

CONSIDERATION OF EVIDENCE:

1.  The applicant is requesting correction of an alleged error which
occurred on
22 December 1945.  The application submitted in this case is dated 20
December 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 reconstructed records that primarily consist of the
applicant’s separation document, hospital admission data cards from the
Office of The Surgeon General, and final pay roll documents.

4.  The applicant’s WD AGO Form 53-55 shows that he was inducted into the
Army and entered active duty on 2 October 1941.  It further shows that he
served in the European-African-Middle Eastern Theater of Operations from 11
June 1942 through 24 June 1944.  The WD AGO Form 53-55 also shows that
during
his active duty tenure, the applicant received the World War II Victory
Medal, the Army Good Conduct Medal, the American Defense Service Medal with
3 bronze service stars, the American Campaign Medal, and the Purple Heart.
5.  The applicant’s WD AGO Form 53-55 further shows that he was honorably
separated from active duty on 22 December 1945, after completing 4 years,
2 months, and 21 days of active military service.  Item 3 (Grade) shows he
held the rank of T/5 (Technician Fifth Grade) on the date of his separation
and Item
38 (Highest Grade Held) confirms that Technician Fifth Grade was the
highest rank he held while serving on active duty.

      The grade structure during the applicant’s tenure on active duty was
as follows:

           Grade 1     Master Sergeant
            Grade 2    Technical Sergeant and 1st Sergeant
            Grade 3    Staff Sergeant and Technician 3rd Grade
            Grade 4    Sergeant and Technician 4th Grade
            Grade 5    Corporal & Technician 5th Grade
            Grade 6    Private First Class
            Grade 7    Private

6.  The applicant’s reconstructed record contains a Certification of
Military Service which shows that the applicant’s last grade, rank, or
rating was Technician Fifth Grade.

7.  The reconstructed record also contains the applicant’s final payment
document which shows his rank as Technician Fifth Grade.  There are no
additional documents in the available records which show the applicant
received a promotion to the rank of Technician 4th Grade (Sergeant).

DISCUSSION AND CONCLUSIONS:

1.  The applicant’s contention that his record should be corrected to show
the rank of Technician 4th Grade was carefully considered.  However, there
is insufficient evidence to support this claim.

2.  The applicant’s properly constituted separation document confirms he
held the rank of Technician Fifth Grade on the date of his separation, and
that this was the highest rank he attained while serving on active duty.

3.  There is no available evidence showing the applicant was qualified or
recommended for promotion to Technician Fourth Grade, or that he was ever
selected for or promoted to this rank by a proper promotion authority.  As
a result, there is an insufficient evidentiary basis to support granting
the requested relief.

4.  Records show the applicant should have discovered the alleged error or
injustice now under consideration on 22 December 1945.  However; the Army
Board for Correction of Military Records 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

__MKP__  __LDS __  __MJF___  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.




                                      _Margaret K. Patterson_
                                            CHAIRPERSON



                                    INDEX

|CASE ID                 |AR20050000065                           |
|SUFFIX                  |                                        |
|RECON                   |YYYYMMDD                                |
|DATE BOARDED            |20051011                                |
|TYPE OF DISCHARGE       |(HD, GD, UOTHC, UD, BCD, DD, UNCHAR)    |
|DATE OF DISCHARGE       |YYYYMMDD                                |
|DISCHARGE AUTHORITY     |AR . . . . .                            |
|DISCHARGE REASON        |                                        |
|BOARD DECISION          |(NC, GRANT , DENY, GRANT PLUS)          |
|REVIEW AUTHORITY        |                                        |
|ISSUES         1.       |                                        |
|2.                      |                                        |
|3.                      |                                        |
|4.                      |                                        |
|5.                      |                                        |
|6.                      |                                        |


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