RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:        11 July 2006
      DOCKET NUMBER:  AR20050017297


      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. Wanda L. Waller               |     |Analyst              |

      The following members, a quorum, were present:

|     |Mr. John Slone                    |     |Chairperson          |
|     |Ms. Carmen Duncan                 |     |Member               |
|     |Ms. Jeanette McCants              |     |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) on his WD AGO
Form 53-55 (Enlisted Record and Report of Separation) be corrected to show
sergeant (SGT) instead of private first class (PFC).

2.  The applicant states, in effect, he was promoted to sergeant in early
1943, that he served in the European Theater of Operations as a Section
Chief with the 336th Antiaircraft Artillery Battalion, and was assigned to
General Patton’s Third Army in 1945.  He states that from the end of the
war to November 1945 he was located in Germany and his company commander
ordered him to build “fly traps” out of window screens.  He contends that
his gun section built an approved trap but it did not catch any flies and
that he was demoted to private first class due to “inefficiency.”

3.  The applicant provides a copy of his WD AGO Form 53-55 and a letter,
dated 31 October 2005, from the National Personnel Records Center in St.
Louis, Missouri.

CONSIDERATION OF EVIDENCE:

1.  The applicant is requesting correction of an alleged error which
occurred on 30 November 1945.  The application submitted in this case is
dated
20 November 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 on 23 September 1942 and entered active duty
on 7 October 1942.  He served in the European Theater of Operations from
19 February 1944 through 17 November 1945 and was honorably discharged on
30 November 1945.

5.  Item 3 on the applicant's WD AGO Form 53-55 shows the entry, "PFC.”
Item 38 (Highest Grade Held) on his WD AGO Form 53-55 shows the entry,
"SGT.”

6.  The applicant’s Final Payment – Work Sheet shows his grade as private
first class.

7.  There is no evidence in the available records which shows the applicant
was promoted to sergeant prior to his discharge on 30 November 1945.

8.  A review of the enlisted rank/pay grade structure of the Army between 1
July 1920 and 31 July 1948 shows that the three lowest pay grades (grade 7
through grade 5) essentially consisted of a private (grade 7); private
first class (grade 6); and corporal/technician five (grade 5); grade 4
personnel carried the rank title of sergeant/technician four; grade 3
personnel carried the rank title of staff sergeant/technician three; grade
2 personnel carried the rank title of tech sergeant; and grade 1 personnel
carried the rank title of master sergeant and first sergeant.  During World
War II, many enlisted personnel held a higher rank temporarily, with the
title of “acting” before the rank, but no promotion orders were issued, and
they were not entitled to pay at the higher rank or grade.

DISCUSSION AND CONCLUSIONS:

1.  The applicant's WD AGO Form 53-55 shows he was a private first class at
the time of his discharge on 30 November 1945.  Although item 38 on the
applicant’s WD AGO Form 53-55 shows his highest grade held was sergeant,
there is no evidence of record which shows he was promoted to sergeant
prior to his discharge.  The governing regulation states that during World
War II many enlisted personnel held a higher rank temporarily, but no
promotion orders were issued, and they were not entitled to pay at the
higher rank level.  Therefore, there is no basis for granting the
applicant's request to amend item 3 on his WD AGO Form 53-55.

2.  Records show the applicant should have discovered the alleged error now
under consideration on 30 November 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 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

JS_____  __CD__  _JM_____  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.




                                  __John Slone__________
                                            CHAIRPERSON



                                    INDEX

|CASE ID                 |AR20050017297                           |
|SUFFIX                  |                                        |
|RECON                   |                                        |
|DATE BOARDED            |20060711                                |
|TYPE OF DISCHARGE       |                                        |
|DATE OF DISCHARGE       |                                        |
|DISCHARGE AUTHORITY     |                                        |
|DISCHARGE REASON        |                                        |
|BOARD DECISION          |DENY                                    |
|REVIEW AUTHORITY        |                                        |
|ISSUES         1.       |102.0200                                |
|2.                      |                                        |
|3.                      |                                        |
|4.                      |                                        |
|5.                      |                                        |
|6.                      |                                        |


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