RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:        30 August 2007
      DOCKET NUMBER:  AR20070003398


      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. Joseph A. Adriance            |     |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, in effect, that his record be corrected to show
his rank as sergeant (SGT).

2.  The applicant states, in effect, he was promoted to SGT sometime
between
3 June 1946 and the date of his discharge, which was 19 January 1947.  He
claims that at the time of his discharge he was told he would receive
corrected documents, and he has tried to have this corrected several times
at many different addresses.

3.  The applicant provides the following documents in support of his
application:  Separation Document (WD AGO Form 53-55); Certificate, dated 3
June 1946; and Certificates, Affidavits and Customs Declarations Statement,
dated 28 November 1946.

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.  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 (NPRC) 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.  This case is
being considered using reconstructed records, which primarily consist of
the applicant's WD AGO Form 53-55, Final Payment Worksheet (WD Form 370B),
and the documents provided by the applicant.

3.  The applicant's WD AGO Form 53-55 shows he was inducted into the Army
and entered active duty on 17 July 1945.  It also shows he served in the
European Theater of Operations (ETO) from 8 January 1946 through 29
November 1946, and that he was honorably discharged on 19 January 1947.

4.  Item 3 (Grade) shows the applicant held the rank of corporal (CPL) on
the date of his discharge and Item 38 (Highest Grade Held) shows that CPL
was the highest grade held by the applicant while he served on active duty.
 The applicant authenticated the separation document with his signature in
Item 56 (Signature of Person Being Separated) on the date of his discharge,
which was 19 January 1947.

5.  The applicant's NPRC file contains a Final Payment Worksheet, which was
prepared on the applicant during his discharge processing.  This document
shows the applicant received his final separation pay as a CPL.  There is a
name line entry that originally listed the applicant's rank as SGT;
however, the SGT entry is lined out and was replaced with the rank entry
CPL.  The NPRC file contains no orders or other documents that confirm the
applicant was officially promoted to SGT by proper authority while serving
on active duty.

6.  The applicant provides a Certificate, dated 3 June 1946, in which he
certified examining captured enemy equipment.  This document lists his rank
as CPL.  He also provides a Certificates, Affidavits, & Customs
Declarations document, dated 24 November 1946, which shows his rank as SGT.


7.  Technical Manual 12-235, which prescribed the policy and procedure for
the preparation and distribution of separation documents during the period
in question, and contained item by item entry instructions.  These
instructions indicated that the grade held on the date of separation would
be entered in Item 3 and that the highest grade a member held while serving
on active duty would be entered in Item 38.

DISCUSSION AND CONCLUSIONS:

1.  The applicant's contention that he was promoted to SGT while serving on
active duty was carefully considered.  However, while his military records
were not available for review, there is a properly constituted separation
document on file that confirms he held the rank of CPL on the date of his
separation, and that this was the highest rank he attained while serving on
active duty.  The applicant authenticated the WD AGO Form 53-55 with his
signature on the date of his separation, thereby verifying that the
information contained on the document was correct at the time it was
prepared and issued.
2.  The available evidence also includes a WD Form 372B and although this
document contained a lined through SGT entry, it confirms the applicant’s
final pay was based on his rank of CPL.  Although the applicant provides a
document that lists his rank as SGT, there are no documents contained in
his NPRC file that show he was ever officially promoted to that rank by
proper authority while serving on active duty.  Thus, it is likely he was
an Acting SGT in his unit but was never officially promoted to that rank,
which was not uncommon at that time.  Absent any orders confirming he was
officially promoted to SGT by proper authority while serving on active
duty, there is an insufficient evidentiary basis to support granting the
requested relief at this late date.

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.  The Board wants the applicant and all others concerned to know that
this action in no way diminishes the sacrifices he made in service to our
Nation.  The applicant and all Americans should be justifiably proud of his
service in arms.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF

________  ________  ________  GRANT PARTIAL RELIEF

________  ________  ________  GRANT FORMAL HEARING

___BPI __  __TMR__  __GJP___  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 for correction of the
records of the individual concerned.




                                  _____Bernard P. Ingold____
                                            CHAIRPERSON
            INDEX

|CASE ID                 |AR20070003398                           |
|SUFFIX                  |                                        |
|RECON                   |                                        |
|DATE BOARDED            |2007/08/30                              |
|TYPE OF DISCHARGE       |HD                                      |
|DATE OF DISCHARGE       |1947/01/19                              |
|DISCHARGE AUTHORITY     |AR 615-365                              |
|DISCHARGE REASON        |Conv of Govt                            |
|BOARD DECISION          |DENY                                    |
|REVIEW AUTHORITY        |Ms. Mitrano                             |
|ISSUES         1.  803  |144.9213                                |
|2.                      |                                        |
|3.                      |                                        |
|4.                      |                                        |
|5.                      |                                        |
|6.                      |                                        |


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