RECORD OF PROCEEDINGS
IN THE CASE OF:
BOARD DATE: 15 April 2008
DOCKET NUMBER: AR20070015630
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, that item 6 (Organization) on his WD AGO Form 53-98 (Military Record and Report of Separation) be corrected to show the
1st Battalion, 18th Infantry of the 1st Infantry Division.
2. The applicant states that his last six months of service was with the
18th Infantry of the 1st Infantry Division. He contends the identification card he provided with his application is from his service at Nuremberg during the trials. He also states that he was a member of the 1st Battalion, 18th Infantry of the
1st Infantry Division and that his job was security of cell blocks and the walls and gates surrounding the prison.
3. The applicant provides a War Department identification card; a copy of his WD AGO Form 53-98; a copy of his Enlisted Record; and a letter, dated 24 October 2007, from a Member of Congress.
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. Having prior enlisted service, the applicant was commissioned and entered active duty on 28 April 1945. His WD AGO Form 53-98 shows he served in the European Theater of Operations from 28 April 1945 through 7 July 1946 and was released from active duty on 24 August 1946 in the rank of first lieutenant.
4. Item 6 (Organization) on the applicant's WD AGO Form 53-98 shows the entry, "COMPANY D 385TH INFANTRY 76TH DIVISION.
5. In support of his claim, the applicant provided a War Department identification card. However, this card does not show that he was assigned to the
1st Battalion, 18th Infantry of the 1st Infantry Division.
6. There is no evidence in the available record which shows the applicant was assigned to the 1st Battalion, 18th Infantry of the 1st Infantry Division.
7. Department of the Army Technical Manual TM 12-236 (Preparation of Separation Forms) established the policies and procedures for completion and distribution of the WD AGO Form 53-98 (Military Record and Report of Separation) during World War II. This regulation states the last unit or similar element, to which an individual was assigned, rather than the element of which he was a part while moving to a separation activity, will be entered in item 6 of the WD AGO Form 53-98.
DISCUSSION AND CONCLUSIONS:
There is no evidence in the available record which shows the applicant was assigned to the 1st Battalion, 18th Infantry of the 1st Infantry Division during World War II. Regrettably, there is insufficient evidence on which to amend item
6 on his WD AGO Form 53-98.
BOARD VOTE:
________ ________ ________ GRANT FULL RELIEF
________ ________ ________ GRANT PARTIAL RELIEF
________ ________ ________ GRANT FORMAL HEARING
PM_____ __JH____ __KJ____ 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.
___ PM_ ____
CHAIRPERSON
ABCMR Record of Proceedings (cont) AR20070015630
4
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BOARD FOR CORRECTION OF MILITARY RECORDS
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