RECORD OF PROCEEDINGS
IN THE CASE OF:
BOARD DATE: 24 January 2008
DOCKET NUMBER: AR20070011455
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. Gerald J. Purcell
Chairperson
Mr. Donald L. Lewy
Member
Mr. David W. Tucker
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 that his records be corrected to show he received a battlefield commission.
2. The applicant states that he was offered a battlefield commission in late November 1953, but because he had 43 days left in his first term of service and did not reenlist he was refused the commission. The battlefield commission was something he earned, something he worked very hard for and risked his life for. The General himself said that he had earned it. He and Major P___ appeared in person on 4/5 December 1953, before an Army board that considered his battlefield commission; however, he left 2 days earlier than was recommended in order to receive it. They said he had to serve 45 days to receive the commission.
3. The applicant provides his DD Form 214 (Report of Separation from the Armed Forces of the United States). He also provides numerous medical documents and Rating Decision documents from the Department of Veterans Affairs.
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 applicants 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 applicants failure to timely file. In all other respects, there are insufficient bases to waive the statute of limitations for timely filing.
2. The applicants 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 applicants 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.
3. The applicant enlisted in the Regular Army on 17 January 1951 for 3 years. He served in Korea for about 11 months and 4 days. He was promoted to the temporary rank of Sergeant First Class, Grade 6, on 15 April 1953. He was honorably discharged on 12 January 1954.
4. Army Regulation 140-105, dated 28 November 1952 stated that appointments were tendered with the expectation that the person appointed would be available for service in the event of emergency or mobilization. All applicants for appointment as Reserve commissioned officers of the Army, except graduates of the Reserve Officers Training Corps program and graduates of officer candidate schools, must have appeared before an examining board.
DISCUSSION AND CONCLUSIONS:
1. With the passage of over 50 years, the Board analyst was unable to discover the specific retention criteria that had to be met before offering a commission to an enlisted Soldier at the time in question or the specific statute, if any, that provided for battlefield commissions. However, as the applicant acknowledged, it appears there was a requirement that the Soldier have at least 45 days retainability. The applicant also acknowledged that he had only 43 days left in his term of service and did not reenlist.
2. The applicant contended that the battlefield commission was something he earned. However, a commission is not a reward for good performance of duty carried out in the past. When a commission is tendered, the Army expects the Soldier tendered that commission to commit him/herself to a certain performance of duty in the future. The applicant did not have that retainability and did not perform that duty. Therefore, there is insufficient evidence that would warrant granting the relief requested.
BOARD VOTE:
________ ________ ________ GRANT FULL RELIEF
________ ________ ________ GRANT PARTIAL RELIEF
________ ________ ________ GRANT FORMAL HEARING
__gjp___ __dll___ __dwt___ 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.
__Gerald J. Purcell___
CHAIRPERSON
INDEX
CASE ID
AR2000011455
SUFFIX
RECON
DATE BOARDED
20080124
TYPE OF DISCHARGE
DATE OF DISCHARGE
DISCHARGE AUTHORITY
DISCHARGE REASON
BOARD DECISION
DENY
REVIEW AUTHORITY
Ms. Mitrano
ISSUES 1.
102.00
2.
3.
4.
5.
6.
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