RECORD OF PROCEEDINGS


	IN THE CASE OF:	  


	BOARD DATE:	  30 August 2007
	DOCKET NUMBER:  AR20070002950 


	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:


Mr. Bernard P. Ingold

Chairperson

Mr. Thomas M. Ray

Member

Mr. Gerald J. Purcell

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 deceased brother's, a former service member (FSM), military records to show that he was discharged from enlisted status to accept a battlefield commission.

2.  The applicant states, in effect, that Item 8 (Reason and Authority for Separation) of the FSM's Report of Separation from the Armed Forces of the United States (DD Form 214) does not contain the entire reason.  He further states that the reason should show that he received his commission on the battlefield.

3.  The applicant provides copies of the FSM's DD Form 214, birth certificates for the FSM and himself, a death certificate for the FSM, Honorable Discharge Certificate, appointment certificate, General Orders Number 93, Headquarters, 7th Infantry Division, dated 5 April 1951, for award of the Silver Star and a photograph of the presentation.  He also provides a letter, dated On 3 May 1954, from the Assistant Adjutant, 264th Field Artillery Battalion.

CONSIDERATION OF EVIDENCE:

1.  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 also allows the Army Board for Correction of Military Records (ABCMR) to excuse an applicant’s failure to timely file within the 3-year statute of limitations if the ABCMR determines it would be in the interest of justice to do so.  While it appears the applicant did not file within the time frame provided in the statute of limitations, the ABCMR has elected to conduct a substantive review of this case and, only to the extent relief, if any, is granted, has determined it is in the interest of justice to excuse the applicant’s failure to timely file.  In all other respects, there are insufficient bases to waive the statute of limitations for timely filing.

2.  On 6 January 1941, the FSM enlisted in the Regular Army.  He served through a series of reenlistments until his discharge on 23 February 1951 for the purpose of accepting a commission in the Army of the United States.

3.  A DD Form 214 for the FSM's period of service ending on 23 February 
1951, indicates that he was honorably discharged under the provisions of Army Regulation 615-365, for the convenience of the government to accept a commission in the Army of the United States.  He had attained the rank of master sergeant, pay grade E7, and had completed 10 years, 1 month, and 16 days of creditable enlisted active duty service.

4.  On 24 February 1951, the applicant was appointed a second lieutenant in the Artillery Branch and entered active duty as a commissioned officer.  At the time, the FSM was serving in Korea.  He continued to serve through a series of assignments and attained the rank of captain on 13 September 1954.

5.  On 31 March 1961, the FSM was released from active duty and transferred to the United States Army Reserve XII United States Army Corps.  He had completed 10 years, 1 month, and 8 days of creditable commissioned active duty service.

6.  On 1 April 1961, the FSM reenlisted in the Regular Army, in the rank of master sergeant, pay grade E7.  He served for a period of 6 months and was honorably discharged on 30 September 1961 after having more than 
20 years of active Federal service.

7.  On 1 October 1961, the FSM was placed on the Army of the United States Retired List in the grade of major.

8.  The documents provided by the applicant:  General Orders Number 93 awarded the FSM the Silver Star for gallantry in action in the vicinity of the Chosin Reservoir, Korea, from 27 to 30 November 1950.  The letter, dated 3 May 1954, shows the Adjutant General, 264th Field Artillery Battalion, requested a copy of the FSM's DD Form 214.  In this request, the assistant adjutant commented that the FSM had been discharged as a master sergeant to accept a battlefield commission as a second lieutenant.

9.  Army Regulation 615-365 (Enlisted Personnel, Discharge, Convenience of the Government) provides, in pertinent part, that the Secretary of the Army delegated to specified commanders the authority to order the release from active duty or discharge of enlisted personnel for the convenience of the government to accept commission or appointment as an officer or warrant officer in any of the Armed Forces of the United States.  [There was no provision for identifying the source of the commission.]

10.  Technical Manual 12-235 (Enlisted Personnel Discharge Procedures and Preparation of Separation Forms), in effect at the time, did not provide for including the source of commissioning on the DD Form 214. 

DISCUSSION AND CONCLUSIONS:

1.  The evidence clearly shows the FSM was discharged as an enlisted Soldier for the purpose of accepting a commission as a second lieutenant, while serving in the Korean theater of operations.  

2.  The regulatory guidance, in effect at the time, did not provide for including the source of an individual's commission on his DD Form 214. 

3.  There is no evidence of record to confirm that the FSM received a battlefield commission as was noted in the assistant adjutant's 1954 letter.  

4.  In view of the above, the applicant's request should not be granted.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

_BPI____  __GJP___  __TMR__  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

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.




____  Bernard P. Ingold__
          CHAIRPERSON


INDEX

CASE ID
AR20070002950
SUFFIX

RECON
 
DATE BOARDED
20070830
TYPE OF DISCHARGE

DATE OF DISCHARGE

DISCHARGE AUTHORITY
  . . . . .  
DISCHARGE REASON

BOARD DECISION
DENY
REVIEW AUTHORITY

ISSUES         1.
102
2.

3.

4.

5.

6.