RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:        1 May 2007
      DOCKET NUMBER:  AR20060015520


      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      |
|     |Mrs. Nancy L. Amos                |     |Analyst              |


      The following members, a quorum, were present:

|     |Mr. Paul M. Smith                 |     |Chairperson          |
|     |Mr. David K. Haasenritter         |     |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 reconsideration of his request to correct his WD
AGO Form 53-55 (Enlisted Record and Report of Separation Honorable
Discharge) to show his military occupational specialty (MOS) and number as
“Rifleman 745” and to delete the reference to nine days of lost time from
item 55 (Remarks).

2.  The applicant states he was not satisfied that the lost time entry in
item        55 was not deleted.  That charge [of lost time] was unwarranted
and a mistake.  He did not think at the time that it would have an impact
on his life.  However, the days allegedly lost have taken time from his
civil service retirement.

3.  The applicant states the Soldiers awaiting separation had to take turns
doing necessary duties such as giving mail call, kitchen police duty,
latrine duty, etc.  He did not consider any of those duties specialties.
Since he was a Soldier in combat on the front lines, he requests that his
specialty number be changed to Rifleman, 745.  In addition, his turn to
give mail call was a short time, maybe several days to a week.

4.  The applicant also states that lost time under Article of War 107
pertains to absence without leave (AWOL) and disease.  While they were
camped between combat duties in Italy, he found a boyhood friend in the
area.  The applicant got a pass to visit him for the day.  In returning to
his unit late in the day, he got lost and had to return to his friend’s
unit for the night.  When he found his unit the next morning, the sergeant
said the applicant was AWOL.  Article of War 107 allows one day of grace
before being charged with AWOL.  As for disease, he only went on sick call
once.  After about seven months of wearing the same undershorts, he had to
discard them.  He got a rash.  He was in an infirmary for two days before
the doctor concluded the rash was from his wool trousers.

5.  The applicant provides no additional new evidence.

CONSIDERATION OF EVIDENCE:

1.  Incorporated herein by reference are military records which were
summarized in the previous consideration of the applicant's case by the
Army Board for Correction of Military Records (ABCMR) in Docket Number
AR20050015394 on 31 May 2006.

2.  The applicant’s argument concerning the nine days of lost time is a new
argument that will be considered.

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’s WD AGO Form 53-55 was corrected to show his MOS and
number as “Rifleman 745” on 15 December 2006 and will not be addressed
further in this Record of Proceedings.  A copy of the DD Form 215
(Correction to DD Form 214, Certificate of Release or Discharge from Active
Duty) will be provided to him again.

5.  The applicant was inducted into the Army on 20 March 1943 and entered
active duty on 27 March 1943.  He served in Italy from 18 April 1944
through     22 January 1945.  He was honorably discharged on 17 January
1946.  Item 55 of his WD AGO Form 53-55 shows the entry “9 DAYS LOST UNDER
AW 107.”

6.  The doctrine of laches is defined by Black’s Law Dictionary, sixth
edition, as the neglect to assert a right or claim which, taken together
with lapse of time and other circumstances causing prejudice to the adverse
party, operates as a bar in a court of equity.

DISCUSSION AND CONCLUSIONS:

1.  The applicant’s contentions and recollections concerning his duty
status in regard to the nine days of lost time reflected on his WD AGO Form
53-55 have been carefully considered.  Unfortunately, without his records,
the presumption of administrative regularity must be made.

2.  The lapse of 60 years in his case has allowed the 1973 fire to
intervene, and his records are believed to have been lost or destroyed in
that fire.  An arbitrary ruling in his favor, without knowing what his
records would have shown, would cause prejudice to the Government.  Had he
applied to the ABCMR even by 1972, 26 years after his separation and even
though that date would have been beyond the ABCMR’s statute of limitations,
an equitable decision could possibly have been made in his case.  However,
since it is now 60 years after his discharge and receipt of his WD AGO Form
53-55, the doctrine of laches is invoked in his case.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF

________  ________  ________  GRANT PARTIAL RELIEF

________  ________  ________  GRANT FORMAL HEARING

__pms___  __dkh___  __eem___  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

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 to amend the decision of
the ABCMR set forth in Docket Number AR20050015394 dated 31 May 2006.




                                  ____Paul M. Smith_____
                                            CHAIRPERSON



                                    INDEX

|CASE ID                 |AR20060015520                           |
|SUFFIX                  |                                        |
|RECON                   |                                        |
|DATE BOARDED            |20070501                                |
|TYPE OF DISCHARGE       |                                        |
|DATE OF DISCHARGE       |                                        |
|DISCHARGE AUTHORITY     |                                        |
|DISCHARGE REASON        |                                        |
|BOARD DECISION          |DENY                                    |
|REVIEW AUTHORITY        |Mr. Schwartz                            |
|ISSUES         1.       |100.00                                  |
|2.                      |                                        |
|3.                      |                                        |
|4.                      |                                        |
|5.                      |                                        |
|6.                      |                                        |


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