RECORD OF PROCEEDINGS


	IN THE CASE OF:	  


	BOARD DATE:	  22 March 2007
	DOCKET NUMBER:  AR20060011038 


	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. Gerard W. Schwartz

Acting Director

Ms. Lisa O. Guion

Analyst

The following members, a quorum, were present:


Ms. Linda D. Simmons

Chairperson

Mr. John T. Meixell

Member

Mr. Roland S. Venable

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 his record be corrected to show his entitlement to the Expert Marksmanship Qualification Badge with Machinegun Bar. 

2.  The applicant states, in effect, that his record fails to show he qualified “expert” with the thirty caliber machine gun. 

3.  The applicant provides no additional documentary evidence in support of his request.

CONSIDERATION OF EVIDENCE:

1.  The applicant is requesting correction of an alleged error which occurred on 15 April 1946.  The application submitted in this case is dated 25 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'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 (NPRC) in 1973.  It is believed his records were lost or destroyed in that fire.  This case is being considered using a reconstructed record that primarily consists of the applicant's WD AGO Form 53-55 and other documents provided by the applicant.

4.  The applicant's separation document (WD AGO Form 53-55) shows he was inducted into the Army of the United States and entered active duty on 26 June 1944.  It also shows that he served in the European Theater of Operations (ETO) from 30 December 1944 through 13 July 1945, and that he was assigned to the 395th Infantry Regiment.


5.  Item 31 (Military Qualifications) of the applicant's separation document shows he earned the Sharpshooter Marksmanship Qualification Badge with Rifle (M-1) Bar and the Combat Infantryman Badge (CIB).  Item 32 (Battles and Campaigns) shows he participated in the Ardennes-Alsace, Rhineland, and Central Europe campaigns of World War II.  

6.  Item 33 (Decorations and Awards) of the applicant's WD AGO Form 53-55 shows that during his active duty tenure, he earned the European-African-Middle Eastern Campaign Medal, World War II Victory Medal, American Campaign Medal, and the Army Good Conduct Medal.  The applicant authenticated this document with his signature in Item 56 (Signature of Person Being Separated) on the date of his separation.  

7.  The reconstructed record contains no orders or other documents that indicate the applicant qualified expert with the thirty caliber machine gun.

8.  On 15 April 1946, the applicant was honorably separated after completing a total of 1 year, 9 months, and 20 days of active military service.  At the time, he held the rank of technician 4 (Tec 4), and this is the highest rank he held while serving on active duty.

9.  Army Regulation 600-8-22 (Military Awards) prescribes Army policy and criteria concerning individual military awards.  Paragraph 3-13d (2) states, in effect, that the Bronze Star Medal is authorized to members of the Armed Forces of the United States who, after 6 December 1941, were cited in orders or awarded a certificate for exemplary conduct in ground combat against an armed enemy between 7 December 1941 and 2 September 1945.  This paragraph also stipulates that for this purpose, an award of the CIB is considered as a citation in orders.  

10.  Paragraph 8-44, in pertinent part, sets forth requirements for award of basic marksmanship qualification badges.  The qualification badge is awarded to indicate the degree in which an individual has qualified in a prescribed record course, and an appropriate bar is furnished to denote each weapon with which the individual has qualified.  The qualification badges are in three classes:  Expert, Sharpshooter, and Marksman.


DISCUSSION AND CONCLUSIONS:

1.  The applicant’s claim that he qualified expert with the 30 caliber machine gun and is entitled to the Expert Marksmanship Qualification Badge with Machinegun Bar was carefully considered.  However, there is no evidence confirming his entitlement to this badge.  

2.  The evidence does contain a properly constituted WD AGO Form 53-55 that was authenticated by the applicant with his signature on the date of his separation.  In effect, his signature was his verification that the information contained on the separation document, to include Item 31 and Item 33, was correct at the time the document was prepared and issued.  Absent any evidence to corroborate the applicant's claim, there is an insufficient evidentiary basis to support granting the requested relief.  

3.  Records show the alleged error or injustice now under consideration should have been discovered by the applicant on 15 April 1946, the date of his separation.  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 his failure to file.

4.  The evidence of record does confirm that based on his having earned 
the CIB during World War II, the applicant is entitled to be awarded the BSM, 
for his exemplary conduct in ground combat against an armed enemy while 
serving in the ETO.  The omission of this award from his separation document
 is an administrative action that does not require Board action.  Therefore, 
the Case Management Support Division (CMSD), St. Louis, Missouri, will 
correct his record as outlined by the Board in paragraph 3 of the 
BOARD DETERMINATION/RECOMMENDATION section below.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

__LDS __  __JTM   _  __RSV __  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.

3.  The Board determined that administrative error in the records of the individual concerned should be corrected.  Therefore, the Board requests that the CMSD-St. Louis administratively correct the records of the individual concerned to show his entitlement to the Bronze Star Medal; and by providing him a correction to his separation document that includes this change. 




_____Linda D. Simmons____
          CHAIRPERSON




INDEX

CASE ID
AR20060011038
SUFFIX

RECON
NO
DATE BOARDED
2007/03/22
TYPE OF DISCHARGE
HD
DATE OF DISCHARGE
1946/04/15
DISCHARGE AUTHORITY
AR 615-365
DISCHARGE REASON
Conv of Gov
BOARD DECISION
DENY
REVIEW AUTHORITY
Mr. Schwartz
ISSUES         1.
107.0000
2.

3.

4.

5.

6.