RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:        10 January 2008
      DOCKET NUMBER:  AR20070010969


      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. William D. Powers             |     |Chairperson          |
|     |Mr. Jerome L. Pionk               |     |Member               |
|     |Mr. Donald W. Steenfott           |     |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
he was promoted to private first class (PFC) and that he be awarded the
Army Good Conduct Medal (AGCM).

2.  The applicant states, in effect, that his separation papers show the
highest rank he held was private (PVT) rather than PFC.  He further states
that he never received the AGCM.  He states that he served 19 and 1/2
months of overseas service, which was more than the 1 year necessary to
receive the rank of PFC.  He further states he was never in trouble during
his time in the Army and he should receive the AGCM as his fellow Soldiers
did.

3.  The applicant provides his separation document (WD AGO Form 53-55) and
an Honorable Discharge Certificate in support of his application.

COUNSEL'S REQUEST, STATEMENT AND EVIDENCE:

Counsel, an attorney from the Syracuse Law Office, LLC, provides a letter
confirming their office is representing the applicant regarding his request
for correction of his military records.  Counsel provides no further
argument or documentary evidence in support of the application.

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 and Final Payment-Work Sheet (WD Form
372A) that remains on file at the NPRC.

3.  The applicant's WD AGO Form 53-55 shows he was inducted into the Army
on 12 June 1943 and entered active duty on 26 June 1943.  It also shows
that he served in the European Theater of Operations (ETO) from 19 January
1944 through 20 August 1945, when he arrived back in the United States.
Item 32 (Battles and Campaigns) shows he participated in the Normandy,
Ardennes, Rhineland and Central Europe campaigns of World War II.  Item 33
(Decorations and Citations) shows that during his active duty tenure, he
earned the European-African-Middle Eastern Campaign Medal with 4 bronze
service stars and
1 bronze arrowhead, the Distinguished Unit Badge (now known as the
Presidential Unit Citation), and the World War II Victory Medal.

4.  Item 3 (Grade) shows he held the rank of PVT on the date of his
separation and Item 28 (Highest Grade Held) shows that PVT was the highest
grade he attained and held while serving on active duty.  The applicant
authenticated the WD AGO Form 53-55 with his signature in Item 56
(Signature of Person Being Separated) on the date of his separation, which
was 9 November 1945.

5.  Item 40 (Reason and Authority for Separation) of the applicant's WD AGO
Form 53-55 shows he was separated under the provisions of Army Regulation
615-365, by reason of Demobilization.  Item 55 (Remarks) confirms he
accrued no lost time while serving on active duty.

6.  A WD Form 372A pertaining to the applicant that remains on file at the
NPRC confirms that he held the rank of PVT on the date of his separation,
and that his final pay was based on that rank.  The applicant authenticated
this document with his signature during his separation processing.

7.  The applicant's Honorable Discharge Certificate also shows he held the
rank of PVT on the date of his separation.

8.  War Department Technical Manual 12-235 (Discharge and Release from
Active Duty) provided the primary procedures for separation processing.  It
also provided guidance on the preparation of the WD AGO Form 53-55.  It
provided, in pertinent part, that the rank held on the date of separation
would be entered in Item 3 and that the highest rank a member held while
serving on active duty would be entered in Item 28.  There were no
automatic provisions for entering a higher grade based on completion of a
specified period of overseas service.

9.  Army Regulation 600-8-22 (Military Awards) provides the Army's awards
policy.  Chapter 4 contains the policy for awarding the AGCM.  It states,
in pertinent part, that the AGCM is awarded to individuals who distinguish
themselves by their conduct, efficiency and fidelity during a qualifying
period of active duty enlisted service.  This period is 3 years; however,
for the first award only, 1 year served entirely during the period 7
December 1941 to 2 March 1946 is a qualifying period.  Although there is no
automatic entitlement to the AGCM, disqualification must be justified.

DISCUSSION AND CONCLUSIONS:

1.  The applicant's contention that he should have been promoted to PFC
because he had completed over 1 year of overseas service was carefully
considered.  However, the available evidence confirms the applicant held
the rank of PVT on the date of his separation, and that his was the highest
rank he attained and held while serving on active duty, as evidenced by
entries in Item 3 and Item 28 of his WD AGO Form 53-55 and on his WD Form
372A, both of which he authenticated with his signature.

2.  In effect, the applicant's signature on his WD AGO Form 53-55 and his
WD AGO Form 372A was his verification that the information contained on
those documents, to include his current rank and the highest rank he held,
was correct at the time they were prepared and issued.  Further, there were
no automatic provisions for granting a higher grade based on the completion
of any period of active duty or overseas service.  Therefore, absent any
evidence that he was ever promoted to PFC by proper authority while serving
on active duty, there is an insufficient evidentiary basis to support
granting this portion of the requested relief.

3.  Although there is a presumption of regularity that the information
contained in the records, in this case the applicant's WD AGO Form 53-55 is
correct and the burden of proving otherwise rests with the applicant.
However, in this case, there are equity considerations that should be
applied to the applicant's request for the AGCM.
4.  Given the applicant's military records were likely burned in a fire at
the NPRC in 1973, it is impossible to conclude with certainty that the
applicant was not disqualified from receiving the AGCM by one of his unit
commanders.  However, given he completed almost two years of combat service
in the ETO, which included his participation in four campaigns and the
assault landing at Normandy, and based on the fact that his separation
document gives no indication of misconduct that would have precluded him
from receiving the award, it is reasonable to accept his claim that he was
never in trouble during his military service.  As a result, it would be
appropriate and serve the interest of equity and justice to award his the
AGCM for his qualifying honorable active duty service from 26 June 1943
through 9 November 1945, and to add this award to his separation document
at this time.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF

___WDP_  __JLP  __  __DWS_  GRANT PARTIAL RELIEF

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

1.  The Board determined that the evidence presented was sufficient to
warrant a recommendation for partial relief.  As a result, the Board
recommends that all Department of the Army records of the individual
concerned be corrected by awarding him the Army Good Conduct Medal, for his
qualifying honorable active duty service from 26 June 1943 through 9
November 1945; and by providing him a correction to his separation document
that includes this award.

2.  The Board further determined that the evidence presented is
insufficient to warrant a portion of the requested relief.  As a result,
the Board recommends denial of so much of the application that pertains to
changing his rank to private first class.




                                  _____William D. Powers____
                                             CHAIRPERSON
                                    INDEX

|CASE ID                 |AR20070010969                           |
|SUFFIX                  |                                        |
|RECON                   |                                        |
|DATE BOARDED            |2007/12/DD                              |
|TYPE OF DISCHARGE       |HD                                      |
|DATE OF DISCHARGE       |1945/11/09                              |
|DISCHARGE AUTHORITY     |AR 615-365                              |
|DISCHARGE REASON        |Demobilization                          |
|BOARD DECISION          |GRANT PARTIAL                           |
|REVIEW AUTHORITY        |                                        |
|ISSUES         1.       |129.0400                                |
|2.                      |107.0000                                |
|3.                      |                                        |
|4.                      |                                        |
|5.                      |                                        |
|6.                      |                                        |


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