RECORD OF PROCEEDINGS


	IN THE CASE OF:	  


	BOARD DATE:	  15 April 2008
	DOCKET NUMBER:  AR20070018494 


	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.










The following members, a quorum, were present:














	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.  Through a Member of Congress, the applicant requests, in effect, that his record and separation document (WD AGO Form 53-55) be corrected to show his rank as sergeant (SGT). 

2.  The applicant states, in effect, that his separation document incorrectly lists his rank as corporal (CPL), when in fact he was a SGT.  

3.  The applicant provides the following documents in support of his application:  Honorable Discharge Certificate; Rifleman Training Certificate; Noncommissioned Officer (NCO) Course Training Certificate; Identification and Pass Cards; Certification of Military Service (NA Form 13038); Separation Qualification Record (WD AGO Form 100); WD AGO Form 53-55; and Photograph Copies.  

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 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 WD AGO Form 53, WD AGO Form 100, and other documents submitted by the applicant.  


3.  The applicant's WD AGO Form 53 shows he enlisted in the Regular Army and entered active duty on 13 November 1945.  It also shows he served in the European Theater of Operations (ETO) from 25 March 1946 through 
14 December 1947.  Item 3 (Grade) shows he held the rank of CPL on the date of his separation and Item 38 (Highest Grade Held) confirms CPL was the highest rank he attained and held while serving on active duty.  The separation document confirms he was separated on 12 November 1948, after completing a total of 3 years of active military service.  On the date of his separation, the applicant authenticated the WD AGO Form 53 in Item 56 (Signature of Person Being Separated).  

4.  Item 3 (Grade) of the applicant's WD AGO Form 100 shows he held the rank of CPL on the date of his separation.  The Military Occupational Assignments portion of the separation qualification record shows he was serving in the rank of CPL at his last duty assignment to the 376th Airborne Field Artillery Battalion, 82nd Airborne Division and that he was performing duties as an Instructor at the Division Air Transportation School.  Previous assignments listed showed him serving in the rank of CPL as a Duty NCO; and serving in the rank of CPL as a light artillery gun crewman.  The WD AGO Form 100 provides no indication that he ever promoted to or held the permanent rank of SGT.

5.  Technical Manual 12-235, prescribed the policy and procedure for the preparation and distribution of separation documents during the period the applicant served.  It stated, in pertinent part, that the rank held on the date of separation would be entered in Item 3 and that the highest grade held while serving on active duty would be entered in Item 38.  Army regulations in effect at the time of the applicant's service provided for appointment of Acting NCOs.  Unit commanders could appoint qualified individuals as acting corporals and acting sergeants to fill unit vacancies.  Acting NCOs were not entitled to pay and allowances for such higher grades and that service would not be credited as time in a higher grade for promotion or date of rank purposes.  

DISCUSSION AND CONCLUSIONS:

1.  The applicant's contention that his separation document should be corrected to show he held the rank of SGT at the time of his separation was carefully considered.  However, the applicant's WD AGO Form 53 confirms he held the rank of CPL on the date of his separation, and that this was the highest rank he held while serving on active duty.  The applicant authenticated this document with his signature on the date of his separation.  In effect, his signature was his verification that the information on the WD AGO Form 53, to include the grade and highest grade held entries, was correct at the time the separation document was prepared and issued.  
2.  Further, the applicant's WD AGO Form 100 confirms he was serving as a CPL at his last duty assignment, and in all previous duty assignments he served in after recruit training.  The passes and identification cards provided by the applicant, while indicating he was a SGT, were locally issued documents, and given his separation documents confirm the highest grade he was ever promoted to or held on active duty was CPL, it is presumed these documents and photographs he provides were the result of his serving as an appointed Acting SGT in his unit for some period of time.  The governing regulation in effect at the time stipulated that appointment as an Acting SGT did not entitle the member to promotion to that grade, or to any associated pay and/or entitlement benefits.  As a result, it is concluded there is an insufficient evidentiary basis to support granting the requested relief.

3.  In order to justify correction of a military record the applicant must show to the satisfaction of the Board, or it must otherwise satisfactorily appear, that the record is in error or unjust.  The applicant has failed to submit evidence that would satisfy this requirement.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

__PHM__  __JGH __  __KSJ __  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.




_____PHM_____
          CHAIRPERSON