RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:        9 August 2007
      DOCKET NUMBER:  AR20070003521


      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             |
|     |Mrs. Nancy L. Amos                |     |Analyst              |

      The following members, a quorum, were present:

|     |Mr. Jeffrey C. Redmann            |     |Chairperson          |
|     |Ms. Rea M. Nuppenau               |     |Member               |
|     |Mr. Dennis J. Phillips            |     |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 WD AGO Form 53-55 (Enlisted
Record and Report of Separation) be corrected to show his rank as First
Sergeant.

2.  The applicant states that he was a First Sergeant during his last three
months of service.

3.  The applicant provides his WD AGO Form 53-55 and page 2 of a Department
of Veterans Affairs (VA) Rating Decision.

CONSIDERATION OF EVIDENCE:

1.  The applicant is requesting correction of an alleged error which
occurred on 28 November 1946.  The application submitted in this case was
received on       8 March 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 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 into the Army and entered active duty on
         6 January 1945.  He was honorably discharged on 28 November 1946.
Items     3 (Grade) and 38 (Highest Grade Held) of his WD AGO Form 53-55
show his grade as Staff Sergeant.

5.  The applicant’s Final Payment Work Sheet shows his grade as Staff
Sergeant.

6.  The applicant provided page 2 of a VA Rating Decision that stated, “The
Separation Qualification Record indicates that (the applicant’s) military
service consisted of four months in infantry basic training, four months as
a rifleman, eight months as a clerk/typist, three months as a First
Sergeant, and two months as a warehouse foreman.”

7.  From 1 September 1942 through 31 July 1948, the enlisted grade
structure consisted of seven grades:

    Grade 7 – Private
    Grade 6 – Private First Class
    Grade 5 – Corporal
    Grade 4 – Sergeant
    Grade 3 – Staff Sergeant
    Grade 2 – Technical Sergeant;
    Grade 1 – Master Sergeant/First Sergeant.

8.  Army Regulation 615-5 (Appointment and Reduction of NCOs and PFCs), in
effect at the time, governed the appointment and reduction of
noncommissioned officers (NCOs) and Privates First Class.  In pertinent
part, it stated that NCOs 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).

DISCUSSION AND CONCLUSIONS:

1.  The applicant provided page 2 of a VA Rating Decision that indicated
his Separation Qualification Record indicated his “military service
consisted of…three months as a First Sergeant….”  However, it appears that
the portion of the Separation Qualification Record the Rating Decision was
referring to reflected a summary of the applicant’s assignments and not a
record of his promotions.

2.  The applicant may very well have performed the duties of a First
Sergeant and even worn the stripes of a First Sergeant in a temporary,
acting capacity.  (The Separation Qualification Record usually summarizes
assignments in order as they were performed, and it is noted that after the
entry of “three months as a First Sergeant” is the entry of “two months as
a warehouse foreman”).  However, there is no evidence of record and the
applicant provided none to show he was ever promoted to and held the grade
of First Sergeant.
3.  Regrettably, there is insufficient evidence that would warrant granting
the relief requested.

4.  Records show the applicant should have discovered the alleged error or
injustice now under consideration on 28 November 1946; 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

__jjcr          __rmn___  __djp___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.




                                  __Jeffrey C. Redmann__
                                            CHAIRPERSON



                                    INDEX

|CASE ID                 |AR20070003521                           |
|SUFFIX                  |                                        |
|RECON                   |                                        |
|DATE BOARDED            |20070809                                |
|TYPE OF DISCHARGE       |                                        |
|DATE OF DISCHARGE       |                                        |
|DISCHARGE AUTHORITY     |                                        |
|DISCHARGE REASON        |                                        |
|BOARD DECISION          |DENY                                    |
|REVIEW AUTHORITY        |Ms. Mitrano                             |
|ISSUES         1.       |100.00                                  |
|2.                      |                                        |
|3.                      |                                        |
|4.                      |                                        |
|5.                      |                                        |
|6.                      |                                        |


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