RECORD OF PROCEEDINGS


	IN THE CASE OF:	  


	BOARD DATE:	  24 May 2007
	DOCKET NUMBER:  AR20060017416 


	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. Ronald Weaver

Chairperson

Mr. Jeffrey Redmann

Member

Mr. David Tucker

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 that item 3 (Grade) on his WD AGO Form 53-55 (Enlisted Record and Report of Separation) be corrected to show corporal instead of private first class.

2.  The applicant states, in effect, that he was field promoted to corporal in December 1944 but General M____ destroyed the paperwork on all Soldiers in Burma.

3.  The applicant provides two eyewitness statements, dated 23 November 2006 and 17 November 2006; a Certificate of Achievement; a photograph of a Soldier; a newspaper article; and a copy of his WD AGO Form 53-55.

CONSIDERATION OF EVIDENCE:

1.  The applicant is requesting correction of an alleged error which occurred on 25 December 1945.  The application submitted in this case is dated 
30 November 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 was inducted on 19 February 1943 and entered active duty on 26 February 1943.  He served as a rifleman in the Asiatic-Pacific Theater of Operations from 25 May 1944 through 19 November 1945 and was honorably discharged on 25 December 1945.

5.  Item 3 on the applicant's WD AGO Form 53-55 shows the entry, "PFC” [private first class].  Item 38 (Highest Grade Held) on his WD AGO Form 53-55 shows the entry, "PFC.”     

6.  The applicant’s service record shows his highest grade attained was private first class.

7.  There is no evidence in the available records which shows the applicant held the rank of corporal or was promoted to corporal prior to his discharge on 
25 December 1945.
  
8.  In support of his claim, the applicant provided an eyewitness statement, dated 23 November 2006, from a fellow Soldier at the time in question.  He attests that he was with the 3rd Battalion when the applicant was promoted to corporal in December 1944.  The applicant also provided a letter, dated 17 November 2005, from a fellow Soldier who attests that during World War II he ran into the applicant and that the applicant was a “two striper” and that he “had just been given a mule.” 

9.  The applicant also provided a Certificate of Achievement from the Commanding Officer, 1st Battalion, Ranger Airborne, 75th Infantry, issued on 
4 September 1982, which states that he was promoted to the rank of corporal.  He also provided a newspaper article titled, “After 40 years, Montandon man makes corporal.”  

10.  Army Regulation 615-5 (Appointment and Reduction of Noncommissioned Officers and Privates First Class), in effect at the time, governed the appointment and reduction of noncommissioned officers and Privates First Class.  It stated that noncommissioned officers appointed during an emergency under special authorization of the War Department would be temporary appointments.  In order to provide an opportunity to observe the performance of candidates for higher grades, unit commanders were authorized to exceed their authorized allotments in any grade by the number of vacancies that existed in a higher grade pending the promotion of the best-qualified candidate(s).  Depending on the type of unit, the company, battalion or regimental commander was the appointment authority. 

11.  A review of the enlisted rank/pay grade structure of the Army between 1 July 1920 and 31 July 1948, shows that the three lowest pay grades (grade 7 through grade 5) essentially consisted of a private (grade 7); private first class (grade 6); and corporal/technician five (grade 5); grade 4 personnel carried the rank title of 



sergeant/technician four; grade 3 personnel carried the rank title of staff sergeant 
or technician three.  During World War II, many enlisted personnel held a higher rank temporarily, with the title of “acting” before the rank, but no promotion orders were issued, and they were not entitled to pay at the higher rank level.

DISCUSSION AND CONCLUSIONS:

1.  The applicant's WD AGO Form 53-55 shows he was a private first class at the time of his discharge on 25 December 1945.  In the absence of promotion orders or other evidence such as an affidavit from his chain of command at the time explaining the circumstances of the applicant’s promotion in December 1944, there is insufficient evidence to show he was actually promoted and not just made an acting corporal.  Therefore, there is no basis for granting the applicant's request to amend item 3 on his WD AGO Form 53-55.

2.  Records show the applicant should have discovered the alleged error now under consideration on 25 December 1945; 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

RW_____  __JR____  __DT___  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.




__Ronald Weaver_______
          CHAIRPERSON




INDEX

CASE ID
AR20060017416
SUFFIX

RECON

DATE BOARDED
20070524
TYPE OF DISCHARGE

DATE OF DISCHARGE

DISCHARGE AUTHORITY

DISCHARGE REASON

BOARD DECISION
DENY
REVIEW AUTHORITY

ISSUES         1.
100.0000
2.

3.

4.

5.

6.