RECORD OF PROCEEDINGS
IN THE CASE OF:
BOARD DATE: 12 April 2007
DOCKET NUMBER: AR20060013605
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:
Mr. Curtis L. Greenway
Chairperson
Mr. Michael J. Flynn
Member
Mr. Edward E. Montgomery
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 sergeant.
2. The applicant states, in effect, that his rank was sergeant.
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 19 November 1946. The application submitted in this case is dated
14 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 applicants 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 16 May 1945. His military occupational specialty was 1607 (Heavy Mortar Crewman). He was discharged on 19 November 1946 in the rank of corporal. He had completed 1 year, 6 months, and 4 days of creditable active duty. The applicant signed the form.
5. The applicant's WD AGO Form 100 shows his rank at separation as corporal. Under Military Occupational Assignments, it shows that he served as a private for 4 months while in basic combat training, 7 months as a corporal performing duties as a heavy mortar crewman, and 3 months as a sergeant performing duties as a guard-patrolman, totaling 1 year and 2 months of his service.
6. War Department Form 372A (Final Payment Worksheet) indicates that the applicant was a corporal at the time of his discharge.
DISCUSSION AND CONCLUSIONS:
1. The applicant's WD AGO Form 53-55 shows that he served on active duty for 1 year, 6 months, and 4 days, and was discharged in the rank of corporal. His WD AGO Form 100 shows that he served in the ranks of private, corporal, and sergeant for a total of 1 year and 2 months. These forms do not provide any information regarding his rank for approximately 4 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 with the applicant's review and signature. Furthermore, his final pay was based on his rank as a corporal.
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 19 November 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
__MJF __ _EM ___ __CLG__ 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.
__Curtis L. Greenway_____
CHAIRPERSON
INDEX
CASE ID
AR20060013605
SUFFIX
RECON
DATE BOARDED
20070412
TYPE OF DISCHARGE
DATE OF DISCHARGE
DISCHARGE AUTHORITY
DISCHARGE REASON
BOARD DECISION
DENY
REVIEW AUTHORITY
ISSUES 1.
133.0000
2.
3.
4.
5.
6.
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