RECORD OF PROCEEDINGS
IN THE CASE OF:
BOARD DATE: 13 March 2007
DOCKET NUMBER: AR20060011076
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. Wanda L. Waller
Analyst
The following members, a quorum, were present:
Mr. William Powers
Chairperson
Mr. Paul Smith
Member
Mr. Jerome Pionk
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 item 6 (Organization) on his WD AGO Form 53-55 (Enlisted Record and Report of Separation) be corrected to show the 887th Company, 82nd Airborne Division and not Battery C, 357th Anti-Aircraft Artillery (AAA) Searchlight Battalion.
2. The applicant states that he was in the 887th Company, 82nd Airborne Division.
3. The applicant provides a copy of his WD AGO Form 53-55.
CONSIDERATION OF EVIDENCE:
1. The applicant is requesting correction of an alleged error which occurred on
6 January 1946. The application submitted in this case is dated 13 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 applicants failure to timely file.
3. The applicants 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 applicants 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 9 November 1943 and entered active duty on 30 November 1943. He served in the European Theater of Operations from
25 May 1944 through 14 December 1945 and was honorably discharged on
6 January 1946.
5. Item 6 (Organization) on the applicant's WD AGO Form 53-55 shows the entry, "Battery C, 357th AAA Searchlight Bn [Battalion].
6. There is no evidence in the available records which shows the applicant was assigned to the 887th Company, 82nd Airborne Division during World War II.
7. Department of the Army Technical Manual TM 12-235 (Discharge Procedures and Preparation of Separation Forms) established the policies and procedures for completion and distribution of the WD AGO Form 53-55 (Enlisted Record and Report of Separation) during World War II. This regulation states the last unit, or similar element, to which an individual was assigned, rather than the element of which he was a part while moving to a separation activity, will be entered in item 6 of the WD AGO Form 53-55.
DISCUSSION AND CONCLUSIONS:
1. There is no evidence in the available records which shows the applicant was assigned to the 887th Company, 82nd Airborne Division during World War II. Therefore, there is insufficient evidence on which to amend item 6 on his WD AGO Form 53-55.
2. Records show the applicant should have discovered the alleged error now under consideration on 6 January 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; however, based on the available evidence 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
WP_____ __PS__ __JP______ 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.
___William Powers___________
CHAIRPERSON
INDEX
CASE ID
AR20060011076
SUFFIX
RECON
DATE BOARDED
20070313
TYPE OF DISCHARGE
DATE OF DISCHARGE
DISCHARGE AUTHORITY
DISCHARGE REASON
BOARD DECISION
DENY
REVIEW AUTHORITY
ISSUES 1.
100.0000
2.
3.
4.
5.
6.
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