RECORD OF PROCEEDINGS


	IN THE CASE OF:	  


	BOARD DATE:	   22 March 2007
	DOCKET NUMBER:  AR20060013349 


	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

Mr. Michael L. Engle

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 correction of his Enlisted Record and Report of Separation Honorable Discharge (WD AGO Form 53-55) to show his rank as corporal. 

2.  The applicant states, in effect, that he was never a private first class.  He says he was promoted from private to Technician Fifth Grade, and then was laterally appointed to corporal.  He further states that he was never reduced.

3.  The applicant provides a copy of his WD AGO 53-55 and his Separation Qualification Record (WD AGO Form 100).

CONSIDERATION OF EVIDENCE:

1.  The applicant is requesting correction of an alleged error or injustice which occurred on 24 January 1946.  The application submitted in this case is dated
10 September 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 for review.  A fire destroyed approximately 18 million service member's records at the National Personnel Records Center in 1973.  It is believed that his records were lost or destroyed in that fire.  However, there are sufficient documents available to conduct a fair and impartial review of this specific request. 

4.  The applicant's WD AGO Form 53-55 shows that he was inducted into the Army of the United States on 5 September 1942 and entered active service on
19 September 1942.  His military occupational specialty was 835 (Supply Clerk).  He was discharged on 24 January 1946 in the rank of private first class.  He had completed 3 years, 4 months, and 19 days of creditable active duty.  The applicant signed the form.



5.  The applicant's WD AGO Form 100 shows his rank at separation as private first class.  Under Military Occupational Assignments, it shows that he served as a private for 3 months while in basic combat training, 12 months as a technician fifth grade performing duties as a clerk typist, and 19 months as a corporal performing duties as a supply clerk, totaling 2 years and 10 months of his service.

6.  The applicant's WD AGO Form 100, Summary of Military Occupations, shows in part, that he performed duties of a company clerk and personnel clerk responsible for preparing correspondence, endorsements, reports, and administrative and personnel forms.  He also made up morning reports.

DISCUSSION AND CONCLUSIONS:

1.  The applicant's WD AGO Form 53-55 shows that he served on active duty for 3 years, 4 months, and 19 days, and was discharged in the rank of private first class.  His WD AGO Form 100 shows that he served in the ranks of private, technician fifth grade, and corporal for a total of 2 years and 10 months.   These forms do not provide any information regarding his rank for approximately 
6 months of his active duty service.    

2.  In the absence of evidence to the contrary, it is presumed that the applicant's WD AGO Form 53-55 and WD AGO Form 100 were properly completed at the time of their preparation and the applicant's review and signature.  

3.  In order to justify correction of a military record the applicant must show to the satisfaction of the Board, or it must otherwise satisfactorily appear, that the record is in error or unjust.  The applicant has failed to submit evidence that would satisfy the aforementioned requirement.

4.  In view of the foregoing, there is no basis for granting the applicant's request.

5.  Records show the applicant should have discovered the alleged error or injustice now under consideration on 24 January 1946, the date of his separation from active duty.  However, the ABCMR was not established until 2 January 1947.  As a result, the time for the applicant to file a request for correction of any error or injustice expired on 1 January 1950.  The applicant did not file within the 3-year statute of limitations and has not provided a compelling explanation or evidence to show 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

__JTM___  __LDS__  __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.




_    Linda D. Simmons_____
          CHAIRPERSON




INDEX

CASE ID
AR20060013349
SUFFIX

RECON
 
DATE BOARDED
20070322 
TYPE OF DISCHARGE
 
DATE OF DISCHARGE
 
DISCHARGE AUTHORITY
 . . . . .  
DISCHARGE REASON

BOARD DECISION
DENY
REVIEW AUTHORITY

ISSUES         1.
100.000
2.

3.

4.

5.

6.