RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:        18 July 2006
      DOCKET NUMBER:  AR20050014838


      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. Maria C. Sanchez              |     |Analyst              |

      The following members, a quorum, were present:

|     |Mr. Lester Echols                 |     |Chairperson          |
|     |Mr. Patrick H. McGann, Jr.        |     |Member               |
|     |Ms. Ernestine I. Fields           |     |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 documents be
corrected to show his highest rank held was staff sergeant.

2.  The applicant states, in effect, that he had a field promotion to the
rank of staff sergeant which was never annotated on his discharge.  He
continues that his commanding officer was killed in the Battle of the Bulge
before the promotion paperwork was turned in.

3.  The applicant provides a copy of Headquarters, 203rd General Hospital
[APO 887] General Orders Number 28, dated 1 April 1945; a WD AGO Form 234
(Hospital Notification), dated 20 March 1945; a WD AGO Form 100 (Separation
Qualification Record); an Honorable Discharge Certificate, dated 24 January
1946; and a WD AGO Form 53-55 (Enlisted Record and Report of Separation
Honorable Discharge) in support of his application.

CONSIDERATION OF EVIDENCE:

1.  The applicant is requesting correction of an alleged error which
occurred on 24 January 1946, the date of his separation.  The application
submitted in this case is dated 26 September 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 are not available to the ABCMR 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 that the applicant submitted for the ABCMR to
conduct a fair and impartial review of this case.

4.  The applicant's WD AGO Form 53-55 shows he was inducted on 26 April
1944, awarded military occupational specialty 745 (Rifleman), and assigned
to Company K of the 393rd Infantry Division.  This form also shows the
applicant was honorably discharged on 24 January 1946.
5.  The WD AGO Form 53-55 further shows that the applicant served in the
European-African-Middle Eastern Theater of Operations during the period
26 November 1944 to 3 January 1946.  Item 3 (Grade) shows he held the rank
of private first class on the date of his separation and Item 38 (Highest
Grade Held) confirms that private first class was the highest rank he held
while serving on active duty.  Item 56 (Signature of Person Being
Separated) shows he authenticated the document with his signature.

6.  Headquarters, 203rd General Hospital General Orders Number 28, dated
1 April 1945, shows the applicant was awarded the Purple Heart.  These
orders further show the applicant's rank as "Sergeant."

7.  On 20 March 1945, the U.S. Army Hospital Plant 4316, APO 887, notified
the applicant's wife of his medical condition.  This form identified the
applicant's rank as "sergeant."

8.  The WD AGO Form 100 provided by the applicant shows in Item 3 (Grade)
that held the grade of private first class at the time of his separation.
The military occupation assignments portion of this document contains an
entry indicating that he held the rank of private first class for twelve
months.  This document confirms the information contained in the form was
taken from records and supplemented by a personal interview with the
applicant.

9.  War Department Technical Manual (TM) 12-235 (Discharge and Release from
Active Duty) establishes the standardized policy for preparing and
distributing of separation documents.  The regulation in effect at the time
directs, in pertinent part, that the purpose of the separation documents is
to provide the individual with documentary evidence of their military
service.  It is important that information entered on the form should be
accurate and complete.

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends that his records should be corrected to show
that he held the rank of staff sergeant because he received a "field"
promotion, and his commanding officer was killed before the paperwork was
submitted.

2. The applicant confirmed the validity of the information on his
separation document by authenticating the document in his own hand.

3.  Contrary to the documents provided by the applicant which show his
grade as sergeant, there is no available evidence showing the applicant was
qualified or recommended for promotion to staff sergeant, 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 24 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

_LE____  _PHM___  __EIF____  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.




                                      _Lester Echols____
                                            CHAIRPERSON

                                    INDEX

|CASE ID                 |AR20050014838                           |
|SUFFIX                  |                                        |
|RECON                   |                                        |
|DATE BOARDED            |20060718                                |
|TYPE OF DISCHARGE       |                                        |
|DATE OF DISCHARGE       |                                        |
|DISCHARGE AUTHORITY     |                                        |
|DISCHARGE REASON        |                                        |
|BOARD DECISION          |DENY                                    |
|REVIEW AUTHORITY        |Mr. Chun                                |
|ISSUES         1.  189  |110.0000.0000                           |
|2.  302                 |129.0000.0000                           |
|3.                      |                                        |
|4.                      |                                        |
|5.                      |                                        |
|6.                      |                                        |


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