RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:                                        01 NOVEMBER 2005
      DOCKET NUMBER:                    AR20050000626


      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. Jessie B. Strickland          |     |Analyst              |

      The following members, a quorum, were present:

|     |Mr. James Anderholm               |     |Chairperson          |
|     |Mr. Thomas O’Shaughnessy          |     |Member               |
|     |Ms. Carol Kornhoff                |     |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 he be commissioned as a second
lieutenant (2LT) and that his records be corrected accordingly.

2.  The applicant states, in effect, that he was given a verbal commission
to the rank of 2LT during the occupation at the end of the war while
waiting to be shipped home.  He goes on to state that he was to be
commissioned to the rank of 2LT in order to be in charge of troops on the
train returning to Camp Shelby, Mississippi.  However, the examining
officer discovered that he had pneumonia and told him to come back in a
week or 10 days and his bars would be pinned on him.  However, the first
sergeant that had recommended him had departed and he never received his
uniform or bars.  However, when the soldiers arrived in New York, he was
placed in charge of the Mississippi men and was given a bag with all their
papers and records and was told to guard them with his life.  He obeyed the
orders and performed the duties of a second lieutenant; however, he was
never commissioned.  Although he has no paperwork to substantiate his
claim, he desires to receive the commission he was promised.

3.  The applicant provides a copy of his report of separation (WD AGO Form
  53-55.

CONSIDERATION OF EVIDENCE:

1.  The applicant is requesting correction of an alleged injustice which
occurred on 4 January 1946.  The application submitted in this case is
dated 20 October 2004 and was received on 13 January 2005.

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.  He was inducted on 3 November 1942 and entered active duty at Camp
Shelby on 10 November 1942.  He completed his training and was transferred
to the European-African-Middle Eastern (EAME) Theater of Operations
(EAMETO) with the 10th Armored Division.  He arrived in France on 23
September 1944 and was assigned to Company A, 8th Armored Medical Battalion
for duty as a medic.

5.  He served in the Normandy, Ardennes, Rhineland and Central Europe
Campaigns and was promoted to the rank of sergeant (SGT).  He departed the
EAMETO on 14 December 1945 and arrived in the United States on 30 December
1945.  He was transferred to Camp Shelby and on 4 January 1946, he was
honorably discharged at the convenience of the government due to
demobilization.  He had served 3 years, 2 months and 2 days of service and
was awarded the Combat Medical Badge, EAME Campaign Medal, the Good Conduct
Medal, the World War II Victory Medal, the Bronze Star Medal with “V”
Device, the Meritorious Unit Commendation, and the Army Occupation Medal
with Germany Clasp.

6.  A review of the available records fails to show any evidence that the
applicant was commissioned as a 2LT or that any paperwork was initiated to
effect such an action.  His WD AGO Form 53-55 and his final pay worksheet,
which were both signed by the applicant, indicate that he was discharged in
the rank of sergeant.

7.  Army Regulation 615-5, Appointment and Reduction of Noncommissioned
Officers, in effect at the time, provided, in pertinent part, that
commanders could appoint acting noncommissioned officers to be in charge of
casual groups of troops that were either arriving from or departing to
overseas locations.  Personnel responsible for the movement of 35 casuals
would be appointed to the rank of SGT.  Personnel responsible for a
detachment or company of casuals would be appointed to the rank of first
sergeant.  Acting appointments of this nature were temporary, were
terminated at the final destination and involved no increase of pay and
allowances.

DISCUSSION AND CONCLUSIONS:

1.  The applicant’s contention has been noted; however, it is not supported
by either evidence submitted with his application or the available evidence
of record. Accordingly, there appears to be no basis for granting his
request.

2.  The applicable regulation at the time made provisions to appoint acting
noncommissioned officers to be in charge of Soldiers deploying to and from
overseas locations.  However, there does not appear to have been any
provisions for temporary commissions to the rank of second lieutenant for
the same purposes.

3.  In any event, there is no evidence of any such actions taking place and
absent evidence to show that a duly authorized appointment/commission was
authorized there is no basis to grant his request.

4.  The veracity of the applicant’s claim that he was given a verbal
commission is not challenged.  While the event may have occurred, the
passage of time (60 years) makes it difficult at best to determine the
validity of the action at the time.  Lacking evidence to the contrary, the
Board must presume that what the Army did at the time was correct.

5.  It is also noted that had the applicant received such a temporary
appointment, it would have terminated upon arrival at his final destination
and he would still have been discharged in the rank of sergeant.

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  4  January  1946,  the  date  of  his
separation from active duty.  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.   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

___JA___  ___TO __  ___CK __  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.




            ____James Anderholm__________________
                    CHAIRPERSON




                                    INDEX

|CASE ID                 |AR20050000626                           |
|SUFFIX                  |                                        |
|RECON                   |                                        |
|DATE BOARDED            |20051101                                |
|TYPE OF DISCHARGE       |(HD)                                    |
|DATE OF DISCHARGE       |19460104                                |
|DISCHARGE AUTHORITY     |AR 615-365. . . . .                     |
|DISCHARGE REASON        |DEMOB                                   |
|BOARD DECISION          |(DENY)                                  |
|REVIEW AUTHORITY        |AR 15-185                               |
|ISSUES                  |310/prom to 2lt                         |
|1.131.0000              |                                        |
|2.                      |                                        |
|3.                      |                                        |
|4.                      |                                        |
|5.                      |                                        |
|6.                      |                                        |


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