RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:        29 August 2006
      DOCKET NUMBER:  AR20050017581


      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. Dean L. Turnbull              |     |Analyst              |

      The following members, a quorum, were present:

|     |Mr. Paul M. Smith                 |     |Chairperson          |
|     |Ms. LaVerne M. Douglas            |     |Member               |
|     |Mr. Ronald D. Gant                |     |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 the entry in item 6
(Organization) of his WD AGO Form 53-55 (Enlisted Record and Report of
Separation) be corrected from Company K, 109th Infantry Division to Company
B, 1st Battalion,  
422nd Infantry Regiment, 106th Infantry Division.

2.  The applicant states he wants his military records right.

3.  The applicant provides a copy of his WD AGO Form 53-55 and a copy of
his discharge certificate.

CONSIDERATION OF EVIDENCE:

1.  The applicant is requesting correction of an alleged error which
occurred on
21 October 1945, the date of his discharge from active duty.  The
application submitted in this case is dated 7 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 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 to conduct a fair
and impartial review of this case.

4.  The applicant's record shows that he was inducted on 30 March 1944.  He
served as a 745 (Rifleman) in the European Theater of Operation for 6
months and 22 days.

5.  The applicant’s discharge certificate shows that his last unit of
assignment before separation was Company K, 109th Infantry Division.  His
final pay document shows his last unit of assignment was Headquarters,
109th Infantry Division.

6.  Technical Manual 12-235, in effect at that time, states that the last
unit or similar element to which assigned for duty rather than the element
of which the individual was a part while moving to a separation activity is
recorded on the  
WD AGO Form 53-33.  Assignments to units for purpose of transfer from an
oversea command to the United States are considered part of the movement to
a separation activity.

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends that his WD AGO Form 53-55, item 6, should be
corrected to show Company B, 1st Battalion, 422nd Infantry Regiment,  
106th Infantry Division.

2.  The evidence shows that the applicant was assigned to Headquarters,  
109th Infantry Division.  The applicant has not provided sufficient
evidence to show that he was assigned to Company B, 1st Battalion, 422nd
Infantry Regiment, 106th Infantry Division.  Therefore, the applicant is
not entitled to correction to his records to show this entry.

3.  Records show the applicant should have discovered the alleged error or
injustice now under consideration on 21 October 1945; however, the ABCMR
was not established until 2 January 1947.  Therefore, the time for the
applicant to file a request for correction of any error or injustice
expired on 1 January 1950.  Although the applicant did not file within the
ABCMR's statute of limitations, the evidence in this case warrants waiver
of failure to timely file.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF

________  ________  ________  GRANT PARTIAL RELIEF

________  ________  ________  GRANT FORMAL HEARING

___pms__  ____rdm_  ___lmd__  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.




                                  _________Paul M. Smith________
                                            CHAIRPERSON



                                    INDEX

|CASE ID                 |AR20050017581                           |
|SUFFIX                  |                                        |
|RECON                   |YYYYMMDD                                |
|DATE BOARDED            |20060829                                |
|TYPE OF DISCHARGE       |(HD, GD, UOTHC, UD, BCD, DD, UNCHAR)    |
|DATE OF DISCHARGE       |YYYYMMDD                                |
|DISCHARGE AUTHORITY     |AR . . . . .                            |
|DISCHARGE REASON        |                                        |
|BOARD DECISION          |DENY                                    |
|REVIEW AUTHORITY        |                                        |
|ISSUES         1.       |                                        |
|2.                      |                                        |
|3.                      |                                        |
|4.                      |                                        |
|5.                      |                                        |
|6.                      |                                        |


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