RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:        8 February 2007
      DOCKET NUMBER:  AR20060010160


      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. Jeffrey C. Redmann            |     |Chairperson          |
|     |Mr. David K. Haasenritter         |     |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 that his rank of technician four be restored.

2.  The applicant states his rank was reduced to private first class in the
Philippines, after action in Europe.  The officer at the summary court-
martial said his radio reports were late.  He was the town jailer, the
coroner, the judge, and the medic in a ruined place.  He had an ear
concussion and malaria and was completely exhausted from the battles in
France and going direct to Manila.  They were all near breakdown.

3.  The applicant states he does not want to die with a stain [on his
records].  The officer was as half-crazy as they were.  He (the officer)
was half drunk.  In that humid hell, no one cared what happened.  They were
forgotten.

4.  The applicant provides a Department of Veterans Affairs Rating
Decision, dated sometime after 21 April 2006, wherein he was awarded
service connection for post traumatic stress disorder claimed as nervous
breakdown.  He also provides a statement, dated 11 January 2007, wherein he
stated the effect of stress occurred some days prior to the event which
resulted in his demotion; and a letter dated 7 August 2006.

CONSIDERATION OF EVIDENCE:

1.  The applicant is requesting correction of an alleged injustice which
occurred on 14 February 1946.  The application submitted in this case is
dated 14 July 2006.

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 was inducted into the Army on 22 April 1943 and entered
active duty on 29 April 1943.  He arrived in the European Theater of
Operations on     12 November 1944 and departed the theater on 17 July
1945.  He arrived in the Western Pacific Theater of Operations on 23 August
1945.  He departed that
theater on 15 January 1946.  He separated on 14 February 1946.  Item 3
(Grade) of his WD AGO Form 53-55 (Enlisted Record and Report of Separation)
shows his grade as private first class.  Item 38 (Highest grade held) shows
his highest grade held as technician four.

4.  The applicant’s WD AGO Form 24 (Service Record) does not list any entry
in the Record of Trials by Courts-Martial section.  The applicant applied
for appointment in the Reserve Corps in September 1950.  He checked on the
AGO Form 0639 (Check Sheet for (Board) Appointments in Reserve Corps) that
he had never been convicted by civil court or court martial.

5.  The applicant’s WD AGO Form 24 also shows, in the Appointment,
Promotion, or Reduction, with Authority Therefor section, that he was
promoted to technician four on 23 October 1944; reduced to private on 2
October 1945; and promoted to private first class on 11 December 1945.
There is also an entry in the Remarks – Financial section that shows he had
been reduced to private from technician four on 2 October 1945 and promoted
to private first class on    11 December 1945.

DISCUSSION AND CONCLUSIONS:

1.  While the available evidence of record does not show that the applicant
was reduced as a result of a court-martial, the evidence does show that he
was reduced from technician four to private, possibly as the result of
nonjudicial punishment.  He was subsequently promoted to private first
class, and he was a private first class when he separated on 14 February
1946.

2.  The applicant’s contentions have been carefully considered.  However,
in the absence of evidence to the contrary it is presumed his reduction was
accomplished in accordance with applicable law and regulations then in
effect.  Regrettably, there is insufficient evidence that would warrant the
relief requested.

3.  Records show the applicant should have discovered the alleged error or
injustice now under consideration on 14 February 1946; 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

__jcr___  __dkh___  __rdg___  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.




                                  __Jeffrey C. Redmann__
                                            CHAIRPERSON



                                    INDEX

|CASE ID                 |AR20060010160                           |
|SUFFIX                  |                                        |
|RECON                   |                                        |
|DATE BOARDED            |20070208                                |
|TYPE OF DISCHARGE       |                                        |
|DATE OF DISCHARGE       |                                        |
|DISCHARGE AUTHORITY     |                                        |
|DISCHARGE REASON        |                                        |
|BOARD DECISION          |DENY                                    |
|REVIEW AUTHORITY        |Mr. Chun                                |
|ISSUES         1.       |133.00                                  |
|2.                      |                                        |
|3.                      |                                        |
|4.                      |                                        |
|5.                      |                                        |
|6.                      |                                        |


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