RECORD OF PROCEEDINGS


	IN THE CASE OF:	  


	BOARD DATE:	  3 May 2007
	DOCKET NUMBER:  AR20060013958 


	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.


x
	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 his report of separation (WD AGO Form 53) be corrected to reflect his rank and pay grade as a master sergeant (MSG)   E-8. 

2.  The applicant states, in effect, that he was promoted to the rank and pay grade of MSG/E-8 when a board of officers determined in September 1948 that his duties required a high ranking noncommissioned officer.  He goes on to state that he drew rations for the signal school, the officers mess and the civilian mess and sometimes he was in charge of the officers mess.  He also states that he wants the error corrected to ensure his proper rank is placed on his cemetery plaque.

3.  The applicant provides no additional documents with his application.

CONSIDERATION OF EVIDENCE:

1.  The applicant is requesting correction of an alleged error which occurred on 23 November 1948.  The application submitted in this case is dated 20 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 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 enlisted in Philadelphia, Pennsylvania on 5 December 1945.  He completed his training and departed for the European Theater of Operations (ETO) on 29 June 1946 and served in the ETO until he returned to the continental United States on 11 November 1948 and was transferred to Camp Kilmer, New Jersey.

5.  On 23 November 1948, he was honorably discharged in the rank and grade of corporal /grade four.  He had served 2 years, 11 months and 19 days of total active service and the WD AGO Form 53, issued at the time of his discharge and authenticated by the applicant with his signature and thumb print, shows that the highest grade he had held was grade four.

6.  At the time of the applicant’s discharge the highest enlisted rank and grade was MSG, grade one and the lowest was Recruit, grade 7.  The rank of MSG/E-8 was not implemented until 1 June 1958.

7.  A review of the available records fails to show any indication that he was ever promoted beyond the rank and pay grade of Corporal/grade four.

8.  Technical Manual 12-235 served as the authority for the preparation of the WD AGO Form 53.  It provides, in pertinent part, that the WD AGO Form 53 will be prepared to reflect information that exist on the date of release from active duty or discharge.  Changes that occur subsequent to the date the WD AGO Form 53 is issued will be reflected on subsequent forms when they are issued.

DISCUSSION AND CONCLUSIONS:

1.  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 this requirement.

2.  The applicant has failed to show through the evidence submitted or the available evidence of record that he was promoted to the rank of master sergeant prior to his discharge.  Therefore, in the absence of such evidence, it must be presumed that he was properly discharged in the rank of corporal, grade four. 

3.  Accordingly, there appears to be no basis to grant the applicant’s request to change his pay grade on his WD AGO Form 53. 

4.  Records show the applicant should have discovered the alleged error or injustice now under consideration on 23 November 1948; therefore, the time for the applicant to file a request for correction of any error or injustice expired on 22 November 1951.  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

___x__  __x __  _x___  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.




___   x________
          CHAIRPERSON




INDEX

CASE ID
AR20060013958
SUFFIX

RECON
YYYYMMDD
DATE BOARDED
20070503
TYPE OF DISCHARGE
(HD, GD, UOTHC, UD, BCD, DD, UNCHAR)
DATE OF DISCHARGE
YYYYMMDD
DISCHARGE AUTHORITY
AR . . . . .  
DISCHARGE REASON

BOARD DECISION
(DENY)
REVIEW AUTHORITY

ISSUES         1.110.0000
189/corr 214
2.131.0000
310/prom
3.

4.

5.

6.