RECORD OF PROCEEDINGS


	IN THE CASE OF:  


	BOARD DATE:	  22 April 2008
	DOCKET NUMBER:  AR20070015356 


	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.




Director



Analyst
      The following members, a quorum, were present:




Chairperson



Member



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, correction of his rank on his discharge document.

2.  The applicant states, in effect, that he is a World War II veteran who served in the Army Air Corps training program as an aviation cadet from September 1943 to 30 November 1945.  The applicant also states that he completed the course in early August 1945 and the war ended shortly thereafter, in mid-August 1945. The applicant adds a decision was made to deny him a commission, he was demoted from the rank of aviation cadet, and discharged as a private.  The applicant adds that it was not until a few years ago that he located a classmate that was in the aviation cadet program with him and he learned that the classmate received his commission prior to being discharged.

3.  The applicant provides a self-authored statement; copies of War Department (WD) Adjutant General Office (AGO) Form 53-55 (Enlisted Record and Report of Separation - Honorable Discharge), with an effective date of 30 November 1945; WD Form 5S (Individual Flight Record Student) for the months of July and August 1945; Affidavit of Dean A. D___, dated 11 October 2007; and WD AGO Form 53-98 (Military Record and Report of Separation - Certificate of Service), with an effective date of 7 January 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 service records are not available to the Board for review.  A fire at the National Personnel Records Center (NPRC), Military Personnel Records, St. Louis, Missouri, destroyed approximately 18 million service members' records in 1973 and it is believed that the applicant's records were lost or destroyed in that fire.  However, there are sufficient records available for the Board to conduct a fair and impartial review of this case.

3.  The applicant's WD AGO Form 53-55 shows he was inducted on 27 August 1943 and entered active duty in the Army of the United States on 17 September 1943.  Item 3 (Grade) of the WD AGO Form 53-55 contains the entry “Pvt” (Private) and Item 4 (Arm of Service) contains the entry “Air Corps.”  Item 30 (Military Occupational Specialty and No.) contains the entry "Basic, 521"; Item
38 (Highest Grade Held) contains the entry “A/C”; and Item 41 (Service Schools Attended) contains the entry “None.”  This document also shows the authority and reason for the applicant’s discharge was Army Regulation 615-365 (Convenience of the Government) and Letter, WD, GAP 220.8, dated
22 September 1945 (Demobilization).

4.  The applicant’s military service records contain an Army of the United States, Honorable Discharge Certificate that shows he was honorably discharged from the military service of the United States of America, in the rank of private, effective 30 November 1945.

5. The applicant’s military service records contain a WD Form 372A (Final Payment - Work Sheet), Voucher Number 11962-7, for the month of November 1945.  This document shows the authority and reason for the applicant’s discharge was Army Regulation 615-365 (Convenience of the Government) and Letter, WD GAP 220.8, dated 22 September 1945 (Demobilization), and the applicant’s grade was recorded as “Pvt” (i.e., Private).

6. The applicant’s military service records contain a WD Form 372A (Final Payment - Work Sheet), Voucher Number 12147-6, Supplemental for the month of November 1945.  This document shows the authority and reason for the applicant’s discharge was Army Regulation 615-365 (Convenience of the Government) and Letter, WD GAP 220.8, dated 22 September 1945 (Demobilization), and the applicant’s grade was recorded as “A/C” (i.e., Aviation Cadet).  The “Remarks” section of this document shows that, in accordance with WD Circular 45 (1944), the applicant was due the difference in pay between Aviation Cadet and Private (from 1 November 1945 to 30 November 1945) in the amount of $25.00, the result of an error (not paid) on Voucher Number 11962-7.

7.  In support of his application, the applicant provides the following documents:

     a.  WD AGO Form 53-55 (Enlisted Record and Report of Separation - Honorable Discharge), with an effective date of 30 November 1945, which was previously introduced and considered in this Record of Proceedings;

     b.  WD Form 5S (Individual Flight Record Student) for the months of July and August 1945.  This document shows, in pertinent part, that the applicant’s rank was “A/C” (i.e., Aviation Cadet);

     c.  Affidavit of Dean A. D___, dated 11 October 2007.  This document shows, in pertinent part, that he met the applicant at Napier Field, Alabama, and became close friends studying, flying, and recreating together.  Mr. D___ also states, “[t]he war ended in early August 1945, at that time we had not fully completed the advanced school training.  However, our training continued.  That shortly before graduation we were informed that we would not graduate unless we extended our enlistment to June 30 1947.”  Mr. D___ adds that the day prior to graduation they were informed they “had to enlist for the post-war Air Force with an unlimited date”, but he “now believes [the unlimited date] was merely an attempt to persuade [the aviation cadets] to leave the air force.”  Mr. D___ states he did enlist for the post-war Air Force and graduated, was able to fly enough for flight pay, and applied for discharge on 2 January 1946 under the new regulations.  Mr. D___ concludes by stating “[h]ad [the applicant] not been misdirected into refusing an extended enlistment, he would have only served an additional
38 days prior to discharge and would have received his wings and commission.”  Mr. D___ also urges correction of the applicant’s records to show he was commissioned in October 1945;

     d.  WD AGO Form 53-98 (Military Record and Report of Separation - Certificate of Service), with an effective date of 7 January 1946, that shows Dean A. D___ entered active duty in the Army of the United States on 16 October 1945.  Item 3 (Grade) of the WD AGO Form 53-98 contains the entry “F/O”
(i.e., Flight Officer) and Item 4 (Arm of Service) contains the entry “AC” (i.e., Air Corps).  Item 27 (Military Occupational Specialty and No.) contains the entry "1054" and Item 31 (Service Schools Attended) contains the entry “Pre-Max Field, Alabama; Prim[ary], Lakeland, Florida; Basic Spence Field, Georgia; Adv[ance] Napier Field, Alabama.”  This document also shows the authority and reason for the applicant’s discharge was TT 31E4209, Headquarters, Army Air Forces, AAFETTC, 18 October 1945, RR 1-5, Paragraph 6, Section II,
WD Circular 290 (1945); and

     e.  Army of the United States, Certificate of Service that shows Dean A. D___ honorably served in active Federal Service in the Army of the United States from 16 October 1945 to 7 January 1946 and was honorably discharged, in the rank of flight officer, effective 7 January 1946.

8.  War Department Technical Manual (TM) 12-235 (Enlisted Personnel - Discharge and Release from Active Duty), dated January 1945, provided uniform procedures in discharging or releasing personnel from active duty.  The instructions for completing the Report of Separation (WD AGO Form 53-55) states that the form is completed from the Service Record, Soldier's Qualification Card, Immunization Register, and information ascertained by interview with the dischargee.  The instructions for completing Item 3 (Grade) state to enter the grade held at time of separation and the instructions for Item 38 (Highest Grade Held) state to enter the highest grade held during current period of active duty.

9.  Army Regulation 15-185 (Army Board for Correction of Military Records) prescribes the policies and procedures for correction of military records by the Secretary of the Army, acting through the ABCMR.  The regulation provides that the ABCMR begins its consideration of each case with the presumption of administrative regularity.  The applicant has the burden of proving an error or injustice by a preponderance of the evidence.

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends, in effect, that his discharge document should be corrected to show he was appointed as a commissioned officer in the Army of the United States and discharged in the grade of second lieutenant because he completed the required aviator training in August 1945, but was discharged in the grade of private.

2.  The preponderance of the evidence of record, which includes the applicant’s supplemental final payment voucher, the applicant’s statement, and the Affidavit of Mr. Dean E. D___, indicates that the highest grade the applicant held was Aviation Cadet and that this grade is recorded in Item 38 of his WD AGO Form 53-55.  The evidence of record also shows that the applicant held the grade of Aviation Cadet through 30 November 1945 and that he was paid in the grade of Aviation Cadet through 30 November 1945, the date of his discharge.  Therefore, the applicant is entitled to correction of Item 3 of his WD AGO Form 53-55.

3.  The applicant’s WD AGO form 53-55 fails to show that the applicant completed the requisite aviator training to qualify for appointment as a commissioned officer in the Air Corps, Air Force of the Army of the United States. In fact, the affidavit of Mr. D___, which the applicant provides in support of his claim, indicates that the applicant refused to extend his enlistment a period of time sufficient to complete his aviator training and qualify for appointment as a commissioned officer in the Air Corps, Air Force of the Army of the United States. Therefore, the applicant is not entitled to correction of his records to show that he was appointed and served as a commissioned officer in the Army of the United States.
BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

x____  x_____  x___  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:

	a.  deleting from Item 3 (Grade) of his WD AGO Form 53-55 the entry private (i.e., “Pvt”); and

	b.  adding to Item 3 (Grade) of his WD AGO Form 53-55 the entry aviation cadet (i.e., "A/C).”

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 appointment as a commissioned officer in the grade of second lieutenant.  




      ______x_____
                CHAIRPERSON

ABCMR Record of Proceedings (cont)                                         AR20070015356



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DEPARTMENT OF THE ARMY
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