RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:         13 July 2006
      DOCKET NUMBER:  AR20050016195


      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. Joseph A. Adriance            |     |Analyst              |

      The following members, a quorum, were present:

|     |Mr. Robert J. Osborn              |     |Chairperson          |
|     |Mr. John M. Moeller               |     |Member               |
|     |Ms. Naomi Henderson               |     |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 promoted to captain
(CPT).

2.  The applicant states, in effect, that he was never judged correctly on
his performance.  He claims that the first quarter he was assigned to C
Company, 57th Signal Battalion, after the invasion of Salerno, he replaced
another officer in the unit that was killed, and it was the first time he
had been assigned to a line company.  He claims that he was trained as a
supply officer; however, upon his arrival in the unit, his responsibilities
included supply officer, mess officer, and censor officer.  He claims his
unit commander did not act professionally toward new officers, and he had
several disagreements and encounters with him.  He states that this
situation prevented him from receiving a CPT rating when he was released
from active duty (REFRAD) in January 1946.

3.  The applicant provides a self-authored statement and his separation
document (WD AGO Form 53-98) in support of his application.

CONSIDERATION OF EVIDENCE:

1.  The applicant is requesting correction of an alleged error or injustice
that occurred on 6 May 1946, the date he was released from active duty.
The application submitted in this case is dated 27 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.  This case is being
considered using reconstructed records, which primarily consist of the
applicant's WD AGO Form 53-98.


4.  The applicant's separation document shows that he entered active duty
as a commissioned officer on 16 October 1942.  It also shows that he served
in the European Theater of Operations (ETO) from 22 June 1943 through
26 September 1945, and participated in the Naples-Foggia, Rome-Arno,
Rhineland, Central Europe, and Southern France campaigns.  The separation
document further confirms that during his tenure on active duty, he earned
the European-African-Middle Eastern Campaign Medal with 5 bronze service
stars and bronze arrowhead, American Theater Campaign Medal, Meritorious
Unit Commendation, and World War II Victory Medal.  It also confirms he
held the rank of 1LT on the date of his REFRAD, which was 6 May 1946.

5.  There are no other documents on file related to the applicant's
efficiency index rating.

6.  On 16 October 1945, the War Department announced a new promotion policy
for officers being released from active duty as a result of demobilization
after World War II.  This guidance was modified on 13 December 1945, and
was published in WD Circular 10, dated 11 January 1946.  This guidance
provided for promoting 1LTs who had 18 months time-in-grade and attained a
minimum efficiency index of 40 or higher to CPT coincident with processing
for REFRAD.

DISCUSSION AND CONCLUSIONS:

1.  The applicant's contention that he should have been promoted to CPT in
conjunction with his REFRAD and the supporting documents he submitted were
carefully considered.  However, there is insufficient evidence to support
granting the requested relief.

2.  The regulation in effect at the time provided for promoting 1LTs to CPT
coincident with their REFRAD if they had been a 1LT for 18 months or more,
and had attained a minimum efficiency index of 40 or higher.

3.  The applicant's separation document confirms he held the rank of 1LT on
the date of his REFRAD, which was 6 May 1946.  The applicant authenticated
this document with his signature on the date of his separation.  In effect,
his signature was his verification that the information contained on the
document, to include his rank, was correct at the time it was prepared and
issued.  Absent any evidence to confirm he had 40 or higher efficiency
index, there is an insufficient evidentiary basis to support his promotion
to CPT at this late date.


4.  Records show the applicant should have discovered the alleged error or
injustice now under consideration on 6 May 1946.  Therefore, 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 failure to timely file in this case.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF

________  ________  ________  GRANT PARTIAL RELIEF

________  ________  ________  GRANT FORMAL HEARING

___RJO _  __JMM __  ___NH__  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.




                                  _____Robert J. Osborn___
                                            CHAIRPERSON



                                    INDEX

|CASE ID                 |AR20050016195                           |
|SUFFIX                  |                                        |
|RECON                   |                                        |
|DATE BOARDED            |2006/07/13                              |
|TYPE OF DISCHARGE       |HD                                      |
|DATE OF DISCHARGE       |1946/05/06                              |
|DISCHARGE AUTHORITY     |AR 1-5                                  |
|DISCHARGE REASON        |Demobilization                          |
|BOARD DECISION          |DENY                                    |
|REVIEW AUTHORITY        |Mr. Chun                                |
|ISSUES         1.  310  |131.0000                                |
|2.                      |                                        |
|3.                      |                                        |
|4.                      |                                        |
|5.                      |                                        |
|6.                      |                                        |


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