RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:        25 July 2006
      DOCKET NUMBER:  AR20050015975


      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             |
|     |Mrs. Nancy L. Amos                |     |Analyst              |

      The following members, a quorum, were present:

|     |Mr. Allen L. Raub                 |     |Chairperson          |
|     |Ms. LaVerne M. Douglas            |     |Member               |
|     |Ms. Peguine M. Taylor             |     |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 item 3 (Grade) of his WD AGO
Form  53-55 (Enlisted Record and Report of Separation) be corrected to show
his grade as Technician 5.

2.  The applicant states he was given those responsibilities, but they were
never acknowledged on his discharge papers.

3.  The applicant provides his WD AGO Form 53-55; a WD AGO Form
 63 (Report of Physical Examination) dated 28 April 1944; a WD AGO Form
   61 (Application for Appointment as Warrant Officer) dated 13 April 1944;
a letter dated 11 October 1945; a letter of recommendation dated 6 December
1943; a letter of recommendation dated 4 October 1943; a photograph of a
ship; and his Honorable Discharge Certificate.

CONSIDERATION OF EVIDENCE:

1.  The applicant is requesting correction of an alleged error which
occurred on    6 September 1945.  The application submitted in this case is
dated 17 October 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 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.  The applicant was inducted into the Army on 11 March 1941.

5.  The applicant completed a WD AGO Form 61 on 13 April 1944.  The form
listed his rank as Technician 5.  The form also listed his units, and it
noted he served in the Harbor Craft Detachment as a 1st Mate, Technician 5,
from April 1943 to the present.  However, a letter of recommendation from
the Office of the Assistant Superintendent, Army Transport Service, dated 6
December 1943, indicated Captain M___ had known Private (the applicant’s
name) for a period of 18 months.

6.  On 6 September 1945, the applicant was honorably discharged.  Item 3 of
his WD AGO Form 53-55 shows his grade as Private.  Item 38 (Highest Grade
Held) shows the highest grade he held as Technician 5.

7.  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 noncommissioned officers appointed during an emergency under special
authorization of the War Department would be temporary appointments.  In
order to provide an opportunity to observe the performance of candidates
for higher grades, unit commanders were authorized to exceed their
authorized allotments in any grade by the number of vacancies that existed
in a higher grade pending the promotion of the best-qualified candidate(s).


DISCUSSION AND CONCLUSIONS:

1.  The applicant’s contentions and the evidence he provided have been
carefully considered.

2.  It is noted that the applicant’s WD AGO Form 61 indicated his grade as
Technician 5 and also noted that he served in the Harbor Craft Detachment
as a 1st Mate, Technician 5, from April 1943 to [13 April 1944].  However,
it is also noted that the 6 December 1943 letter of recommendation
indicated that Captain M___ had known Private (the applicant) for 18
months.

3.  In the absence of evidence to the contrary, it is presumed that the
conflict in identifying the applicant’s grade, as indicated in the two
documents, occurred because the applicant had been temporarily appointed to
Technician 5.  Therefore, it appears that his WD AGO Form 53-55 properly
shows the highest grade he held (Technician 5) in item 38 whereas his
permanent grade (Private) was properly entered in item 3.

4.  Records show the applicant should have discovered the alleged error or
injustice now under consideration on 6 September 1945; therefore, the time
for the applicant to file a request for correction of any error or
injustice expired on     1 January 1950 (3 years after the Board was
established on 2 January 1947).
The applicant did not file within the 3-year statute of limitations;
however, based on the available evidence 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

__alr___  __lmd___  __pmt___  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.




                                  __Allen L. Raub_______
                                            CHAIRPERSON



                                    INDEX

|CASE ID                 |AR20050015975                           |
|SUFFIX                  |                                        |
|RECON                   |                                        |
|DATE BOARDED            |20060725                                |
|TYPE OF DISCHARGE       |                                        |
|DATE OF DISCHARGE       |                                        |
|DISCHARGE AUTHORITY     |                                        |
|DISCHARGE REASON        |                                        |
|BOARD DECISION          |DENY                                    |
|REVIEW AUTHORITY        |Mr. Chun                                |
|ISSUES         1.       |100.00                                  |
|2.                      |                                        |
|3.                      |                                        |
|4.                      |                                        |
|5.                      |                                        |
|6.                      |                                        |


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