RECORD OF PROCEEDINGS
IN THE CASE OF:
BOARD DATE: 13 March 2007
DOCKET NUMBER: AR20060011369
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, in effect, that item 3 (Grade) on his WD AGO Form 53-55 (Enlisted Record and Report of Separation) be corrected to show technician four instead of technician five.
2. The applicant states that his pay grade was technician four not technician five. He contends that he served in a time of war and making rank was not only hard but a privilege.
3. The applicant provides a photograph of a Soldier in uniform and 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 13 October 1945. The application submitted in this case is dated 31 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 17 October 1941. He served in the European Theater of Operations from 17 August 1942 through 17 September 1945 and was honorably discharged on 13 October 1945.
5. Item 3 on the applicant's WD AGO Form 53-55 shows the entry, "TEC [technician] 5." Item 38 (Highest Grade Held) on his WD AGO Form 53-55 shows the entry, "TEC 4.
6. In support of his claim, the applicant provided a photograph of a Soldier in uniform apparently wearing the rank of technician four.
7. 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 or technician three.
DISCUSSION AND CONCLUSIONS:
1. The applicant's WD AGO Form 53-55 shows he was a technician five at the time of his discharge on 13 October 1945. Item 38 on the applicants WD AGO Form 53-55 shows his highest grade held was technician four and the applicant provided a photograph of a Soldier in uniform wearing the rank of technician four. The applicant may have been administratively reduced to technician five at some point prior to his discharge. Such a reduction would not have been a reflection on his service, merely an indication of an administrative necessity. As there is no evidence to show exactly what happened in the applicants case, it is presumed he was a technician five at the time of his separation. Therefore, there is insufficient evidence on which 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 13 October 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
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
AR20060011369
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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