RECORD OF PROCEEDINGS


	IN THE CASE OF:	  


	BOARD DATE:	  3 April 2007
	DOCKET NUMBER:  AR20060012168 


	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. John Infante

Chairperson

Ms. Susan Powers

Member

Mr. Qawiy Sabree

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, correction of items 3 (Grade); 10 (Date of Birth); 30 (Military Occupational Specialty (MOS) and No. [Number]); 31 (Military Qualification and Date); and item 55 (Remarks) on his WD AGO Form 53-55 (Enlisted Record and Report of Separation).  He also requests award of the Philippine Independence Ribbon, the Good Conduct Medal, and one bronze service star to be affixed to the Asiatic-Pacific Campaign Medal.

2.  The applicant states, in effect, that he would like his WD AGO Form 53-55 corrected to show his grade as sergeant; his date of birth as 9 October 1927; that he was never a Job Pressman and that his MOS was truck driver, machine gunner, electrical control torrent (sic), and company clerk; that he was qualified in machine guns, the bayonet, and the hand grenade; that he is eligible for one bronze service star to be affixed to his Asiatic-Pacific Campaign Medal because he was assigned to the 42nd Engineer Battalion and this battalion participated in one campaign in July 1945; that he is entitled to the Philippine Independence Ribbon because this ribbon was issued to recipients of the Philippine Liberation Medal; and that he would like his lost time removed from item 55 on his WD AGO Form 53-55. 

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

CONSIDERATION OF EVIDENCE:

1.  The applicant is requesting correction of alleged errors which occurred on 
10 December 1946.  The application submitted in this case is dated 21 August 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 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 for the Board to conduct a fair and impartial review of this case.  

4.  The applicant served in the Army of the United States from 15 August 1944 through 31 October 1945.  He enlisted in the Regular Army on 1 November 1945. He served in Manila from 29 August 1945 through 29 December 1945 and was honorably discharged on 10 December 1946.  

5.  Item 3 on the applicant’s WD AGO Form 53-55 shows the entry, “PVT [Private] 19JUL46.”  Item 6 (Organization) shows he was assigned to the 42nd Engineer Construction Battalion.  Item 10 shows the applicant was born on 
2 May 1926.  Item 30 shows the entry, “JOB PRESSMAN 169.”  Item 31 shows the applicant received the Marksman Marksmanship Qualification Badge with Rifle Bar.  Item 32 (Battles and Campaigns) shows the entry, “NONE.”  Item 33 (Decorations and Citations) shows the Asiatic-Pacific Campaign Medal, the Philippine Liberation Ribbon, the World War II Victory Medal, and the Army of Occupation Medal with Japan Clasp as authorized awards.  Item 38 (Highest Grade Held) shows the entry, “SGT” [Sergeant].  Item 55 (Remarks) shows the applicant had 11 days of lost time. 

6.  There is no evidence in the available records which shows the applicant was born on 9 October 1927.

7.  There is no evidence in the available records which shows the applicant held or served in any other MOS other than MOS 169. 

8.  There is no evidence in the available records which shows the applicant qualified in any other military qualification other than the Marksman Marksmanship Qualification Badge with Rifle Bar. 

9.  Department of the Army Pamphlet 672-1 (Unit Citation and Campaign Participation Credit Register), dated 6 July 1961, shows, among other information, unit awards and citations authorized for units which served during World War II.  This document shows the 42nd Engineer Construction Battalion participated in the Luzon campaign during the period 15 December 1944 to 
4 July 1945.
 
10.  There are no orders for the Good Conduct Medal in the available records.

11.  Army Regulation 600-8-22 (Military Awards) authorizes a bronze service star, based on qualifying service, for each campaign listed in Appendix B of this regulation or listed in item 32 (Battles and Campaigns) of the WD AGO Form 53-55.  
12.  Army Regulation 600-8-22 provides for award of the Philippine Independence Ribbon.  The Philippine Independence Ribbon is authorized for award to any recipient of both the Philippine Defense Ribbon and the Philippine Liberation Ribbon.  There was brief exception to this requirement when Change 2 to Army Regulation 600-65, dated 13 January 1953, authorized award of the Philippine Independence Medal if an individual received either the Philippine Defense or the Philippine Liberation Ribbon.  However, this provision was superseded by Department of the Army Circular 672-1, dated 16 March 1955, which again required award of both the Philippine Defense and the Philippine Liberation Ribbon for award of the Philippine Independence Ribbon.

13.  Paragraph 9-14 of Army Regulation 600-8-22 provides that the Philippine Defense Ribbon is awarded for service in the defense of the Philippines from 
8 December 1941 to 15 June 1942.  

14.  Army Regulation 600-45, in effect at the time, provided policy and criteria concerning individual military decorations.  It stated that the Army Good Conduct Medal was awarded for each 3 years of continuous enlisted active Federal military service completed on or after 27 August 1940 and, for the first award only, upon termination of service on or after 27 June 1950 of less than 3 years but more than 1 year.  

DISCUSSION AND CONCLUSIONS:

1.  The applicant's WD AGO Form 53-55 shows he was a private at the time of his discharge on 10 December 1946.  Item 38 on the applicant’s WD AGO Form 53-55 shows his highest grade held was sergeant.  As there is no evidence to show exactly what happened in the applicant’s case, it is presumed he was a private 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.  Since there is no evidence of record and he provides no evidence which shows the applicant was born on 9 October 1927, there is no basis for granting his request to amend item 10 on his WD AGO Form 53-55 at this time.  

3.  Since there is no evidence of record and he provides no evidence which shows the applicant held or served in any MOS other than MOS 169, there is insufficient evidence on which to amend item 30 on his WD AGO Form 53-55 at this time.   

4.  Since there is no evidence of record and he provides no evidence which shows the applicant qualified in any other military qualification other than the Marksman Marksmanship Qualification Badge with Rifle Bar, there is insufficient evidence on which to amend item 31 on his WD AGO Form 53-55 at this time. 

5.  Department of the Army Pamphlet 672-1 shows the 42nd Engineer Construction Battalion participated in one campaign during the period 
15 December 1944 to 4 July 1945.  The applicant arrived in Asiatic-Pacific Theater of Operations on 29 August 1945.  Therefore, there is no basis for amending item 32 on his WD AGO Form 53-55.  

6.  Since there is no evidence of record which shows the applicant received the Philippine Defense Ribbon or that he qualified for award of the Philippine Defense Ribbon, there is insufficient evidence on which to base award of the Philippine Independence Ribbon.

7.  Since the applicant did not serve three years of continuous enlisted active Federal military service, he is not eligible for award of the Good Conduct Medal.  Therefore, there is insufficient evidence on which to base award of the Good Conduct Medal in this case.  

8.  Item 55 on the applicant’s DD Form 214 shows that he had 11 days of lost time.  There is no evidence of record which shows this entry is incorrect.  Therefore, there is insufficient evidence on which to amend this entry on his WD AGO Form 53-55.    

9.  Records show the applicant should have discovered the alleged errors now under consideration on 10 December 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

JI______  __SP____  __QS____  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.




___John Infante_______
          CHAIRPERSON




INDEX

CASE ID
AR20060012168
SUFFIX

RECON

DATE BOARDED
20070403
TYPE OF DISCHARGE

DATE OF DISCHARGE

DISCHARGE AUTHORITY

DISCHARGE REASON

BOARD DECISION
DENY
REVIEW AUTHORITY

ISSUES         1.
100.0500
2.
100.0000
3.
107.0000
4.

5.

6.