RECORD OF PROCEEDINGS
IN THE CASE OF:
BOARD DATE: 21 June 2007
DOCKET NUMBER: AR20070000624
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.
Ms. Catherine C. Mitrano
Director
Mr. Michael L. Engle
Analyst
The following members, a quorum, were present:
Ms. Sherri V. Ward
Chairperson
Mr. Richard T. Dunbar
Member
Mr. David W. 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 correction of his Enlisted Record and Report of Separation Honorable Discharge (WD AGO Form 53-55) to show his organization as the 644th Tank Destroyer Battalion.
2. The applicant states that when the 644th Tank Destroyer Battalion returned to the United States he had not earned enough points to return and was reassigned to the 703rd Tank Destroyer Battalion. Since his combat duty was actually with the 644th Tank Destroyer Battalion, he believes that unit should be shown on his separation document as his organization.
3. The applicant provides a copy of his WD AGO Form 53-55.
CONSIDERATION OF EVIDENCE:
1. The applicant is requesting correction of an alleged error or injustice which occurred on 4 December 1945, the date of his reenlistment. The application submitted in this case is dated 5 January 2007.
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. On 10 November 1943, the applicant was inducted into the Army of the United States. Subsequently, he entered on active duty on 1 December 1943. He completed his initial training and was awarded military occupational specialty
610 (Gunner, Tank Destroyer Crewman).
4. On 30 May 1944, the applicant departed the United States for duty in the European Theater of Operations (ETO).
5. Item 6 (Organization) of the applicants WD AGO Form 53-55, issued on
4 December 1945, shows his unit at the time as Company B, 703rd Tank Destroyer Battalion.
6. On 5 December 1945, the applicant reenlisted while stationed in France. He departed the ETO and arrived in the United States on 25 December 1945.
7. The applicants Final Payment Worksheet (WD Form 372) shows that he was discharged on 4 December 1948. His last duty station was Fort Benning, Georgia. He attained the rank of sergeant, grade three, and had completed
5 years and 4 days of creditable active duty.
8. Department of the Army Technical Manual 12-235 (TM 12-235) prescribed the policies and procedures regarding the preparation of separation documents. It provided, in pertinent part, that Item 6 of the WD AGO Form 53-55 would show the last unit, or similar element to which the individual was assigned, rather than the element of which he was a part while moving to a separation activity. Assignments to units for purpose of transfer from a theater to the United States are considered part of the movement to a separation activity.
DISCUSSION AND CONCLUSIONS:
1. The available evidence and the applicants own statement indicate that his unit at the time of his discharge on 4 December 1945 was the 703rd Tank Destroyer Battalion. The governing regulation required that his last or current unit be identified and entered as his organization. Therefore, the applicants request to change this entry to his previous unit should not be granted.
2. Records show the applicant should have discovered the alleged error or injustice now under consideration on 4 December 1945, the date of his reenlistment. 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; however, based on the available evidence, 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
__ SVW__ __RTD __ __DWT 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.
___ Sherri V. Ward ____
CHAIRPERSON
INDEX
CASE ID
AR20070000624
SUFFIX
RECON
DATE BOARDED
20070621
TYPE OF DISCHARGE
DATE OF DISCHARGE
DISCHARGE AUTHORITY
. . . . .
DISCHARGE REASON
BOARD DECISION
DENY
REVIEW AUTHORITY
ISSUES 1.
110.0000
2.
3.
4.
5.
6.
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