RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:           6 December 2005
      DOCKET NUMBER:  AR20050006281


      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. Lisa O. Guion                 |     |Analyst              |

      The following members, a quorum, were present:

|     |Mr. Bernard P. Ingold             |     |Chairperson          |
|     |Mr. Donald W. Steenfott           |     |Member               |
|     |Mr. Edward E. Montgomery          |     |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 records be corrected to
show his rank as staff sergeant (SSG).

2.  The applicant states, in effect, that his records should be corrected
to show the rank SSG, the highest rank he held while serving on active
duty, and not Technician 5 (TEC 5), as is currently listed.

3.  The applicant provides a Statement in Support of Claim (VA Form 21-
4138), dated 12 April 2005, and a witness statement in support of his
request.

CONSIDERATION OF EVIDENCE:

1.  The applicant is requesting correction of an alleged error which
occurred on
8 August 1945.  The application submitted in this case is dated 25 April
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 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 were not made 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
his 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 that primarily consist of the applicant's
separation document (WD AGO Form
53-55).

4.  The applicant's WD AGO Form 53-55 shows he was inducted into the Army
of the United States and entered active duty on 11 April 1941.  It also
shows that he continuously served on active duty until being honorably
separated on 8 August 1945, after having completed a total of 4 years, 3
months, and 28 days of active military service.

5.  Item 3 (Grade) of the applicant’s separation document shows he held the
rank of TEC 5 on the date of his separation.  Item 38 (Highest Grade Held)
contains the entry "Staff Sergeant."  The applicant authenticated this
document with his signature in Item 56 (Signature of Person Being
Separated) on the date of his separation.

6.  In a VA Form 21-4138 on file, dated 5 January 2004, the applicant
explains the reason for his reduction.  He stated that he was selected to
be a driver for a general officer who was conducting inspections.  On one
occasion, he and the assistant driver inspected the general’s vehicle and
while he was busy opening the hood of the car, a gust of wind lifted the
hood and set it down on the windshield, which caused it to break, and this
is the reason he was reduced.

7.  The applicant provides a witness statement from an individual who
indicates that he was the assistant driver who aided the applicant in the
inspection of the general officer’s vehicle.  He claims that the
applicant's version of the events are accurate.

8.  Technical Manual 12-235, which prescribed the policy and procedure for
the preparation and distribution of separation documents during the period
in question, and contained item by item entry instructions.  These
instructions for Item 3 stated to enter the grade held at time of
separation.  The instructions for Item 38 indicated to enter the highest
grade held while serving on active duty.

DISCUSSION AND CONCLUSIONS:

1.  The applicant’s contention that the grade listed in Item 3 of his WD
AGO Form 53-55 should be corrected to read SSG and the supporting
statements he provided were carefully considered.  However, there is
insufficient evidence to support this claim.

2.  The record is void of any facts and circumstances related to the
applicant's reduction in grade.  However, the applicant confirms he was
reduced in rank for cause, and while he claims the reason for the reduction
was unjust, absent any evidence of record to corroborate this claim, there
is an insufficient evidentiary basis to support granting the requested
relief at this late date.

3.  The applicant’s WD AGO Form 53-55 confirms he held the rank of TEC 5 on
the date of his separation in Item 3 and that SSG was the highest rank he
held while serving on active duty in Item 38.

4.  The applicant authenticated the WD AGO Form 53-55 with his signature on
the date of his separation.  In effect, this was his verification that the
information it contained, to include the Item 3 and Item 38 entries, was
correct at the time the document was prepared and issued.

5.  Absent any evidence of record to the contrary, there is a presumption
of regularity attached to the information contained on the separation
document, and it is presumed his reduction was accomplished in accordance
with the governing regulations in effect at the time.  As a result, the
applicant’s claim that his reduction was unjust, and the supporting witness
statement attesting to circumstances surrounding the reduction are not
sufficiently compelling to reverse the reduction action some 50 years after
the fact.

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 the above requirement.

7.  The applicant should have discovered the alleged error or injustice now
under consideration on 8 August 1945, the date of his discharge.  Thus,
based
on the date the Board was established, 2 January 1947, the time for him to
file
a request for correction of any error or injustice expired on 1 January
1950.  He failed to 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 his failure to file.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF

________  ________  ________  GRANT PARTIAL RELIEF

________  ________  ________  GRANT FORMAL HEARING

___BPI  _  __DWS __  ___EEM_  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.




            ____Bernard P. Ingold_____
                    CHAIRPERSON




                                    INDEX

|CASE ID                 |AR20050006281                           |
|SUFFIX                  |                                        |
|RECON                   |NA                                      |
|DATE BOARDED            |2005/12/06                              |
|TYPE OF DISCHARGE       |HD                                      |
|DATE OF DISCHARGE       |1945/08/08                              |
|DISCHARGE AUTHORITY     |AR 615-365                              |
|DISCHARGE REASON        |Convenience of the government           |
|BOARD DECISION          |DENY                                    |
|REVIEW AUTHORITY        |Mr. Chun                                |
|ISSUES         1.       |133.0000                                |
|2.                      |                                        |
|3.                      |                                        |
|4.                      |                                        |
|5.                      |                                        |
|6.                      |                                        |


-----------------------
[pic]