RECORD OF PROCEEDINGS


	IN THE CASE OF:	  


	BOARD DATE:	  19 July 2007
	DOCKET NUMBER:  AR20070003158 


	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

Ms. Joyce A. Wright

Analyst

The following members, a quorum, were present:


Mr. John T. Meixell

Chairperson

Mr. Robert J. Osborn 

Member

Mr. Michael J. Flynn

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, in effect, that item 3 (Grade), of his WD AGO Form 53-55 (Enlisted Record and Report of Separation), be correct to show the entry "SGT" (sergeant) instead of the entry "PFC" (private first class).

2.  The applicant states, in effect, that he was awarded a field promotion to sergeant.  

3.  The applicant provides a copy of his WD AGO Form 53-55, a copy of his WD AGO Form 100 (Separation Qualification Record), and several copies of old letters (sic envelopes), in support of his request.

CONSIDERATION OF EVIDENCE:

1.  The applicant is requesting correction of an alleged error or injustice which occurred on 29 March 1946, the date of his separation from active duty.  The application submitted in this case is dated 20 February 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 applicant’s failure to timely file.

3.  The applicant’s military records were lost or destroyed in the National Personnel Records Center fire of 1973.  Records available to the Board were obtained from alternate sources and show he was inducted on 27 March 1943 and entered active duty on 3 April 1943.  He served in the European Theater of Operations (ETO) from 1 December 1944 to 26 March 1946.  While in service, he served in military occupational specialty 745, as a Rifleman.  He was honorably separated on 29 March 1946.

4.  The applicant’s WD AGO Form 53-55, which is authenticated in his own hand, shows in item 3, the entry "PFC" and in item 38 (Highest Grade Held) the entry "PFC."



5.  The applicant’s WD AGO Form 100 (Separation Qualification Record), military occupational assignments section, shows in item 10 (months) the entry "15,"
in item 11 (Grade) the entry "Pfc," and in item 12 (MOS) the entry "Orderly (590)."  It also shows the in item 10, the entry "17," in item 11, the entry "PFC," and in item 12 the entry "Rifleman (745)."

6.  The available records show his Grade as "PFC" on his Final Payment-Work Sheet (War Department Form 372A), dated 29 March 1946.

7.  The applicant's NA Form 13038 (Certificate of Military Service) shows his last grade, rank, or rating as "Private First Class."

8.  The applicant provided several copies of envelopes which show he addressed his rank as "SGT" and unit as Company E, 274th Infantry.

9.  There are insufficient records available to the Board to show that the applicant was ever promoted above the rank of private first class.  There is no evidence in the available records that show he was awarded a field promotion prior to his separation from active duty. 

10.  Technical Manual 12-235, in effect at the time of the applicant's separation, which provided policy and guidance in the preparation of separation forms and documents, states that, in item 3, "enter grade held at time of separation and date of rank of appointment," and in item 38, enter highest grade in current period of active duty. 

DISCUSSION AND CONCLUSIONS:

1.  On the day of the applicant's discharge, the applicant's service records were available for use in preparation of his WD AGO Form 53-55.  It is believed that he was serving in the grade of private first class which was also the highest grade he held while he served on active duty.

2.  There is insufficient evidence in the available records to show that he was advanced higher than "PFC" or to show that he was awarded a field promotion to sergeant prior to his separation from active duty.  Therefore, there is no basis to correct item 3 (Grade) of his WD AGO Form 53-55 to show that he was separated in the pay grade of "SGT."



3.  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.

4.  Records show the applicant should have discovered the error or injustice now under consideration on 29 March 1946, the date of his separation from active duty.  The ABCMR was not established until 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

__MJF___  __RJO__  __J_____  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.




_____John T. Meixell______
          CHAIRPERSON




INDEX

CASE ID
AR20070003158
SUFFIX

RECON
YYYYMMDD
DATE BOARDED
20070719
TYPE OF DISCHARGE
HD
DATE OF DISCHARGE
19460329
DISCHARGE AUTHORITY
AR 615-365
DISCHARGE REASON

BOARD DECISION
DENY
REVIEW AUTHORITY

ISSUES         1.
144
2.

3.

4.

5.

6.