RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:        12 July 2007
      DOCKET NUMBER:  AR20070001678


      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             |
|     |Ms. Deyon D. Battle               |     |Analyst              |

      The following members, a quorum, were present:

|     |Mr. James Anderholm               |     |Chairperson          |
|     |Mr. Jose Martinez                 |     |Member               |
|     |Mr. William Crain                 |     |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 that he
was promoted to the rank and pay grade of private first class (E-3) and
that he be awarded all back pay and allowances due him as a result of this
correction.

2.  The applicant states that he was wounded in a combat zone while serving
in A Company, 5th Regiment, 1st Cavalry Division during the Korean Conflict
on 7 October 1951 and therefore, he deserved to be promoted to private
first class.  He states that the Osaka, Japan Army Hospital has the records
and that the commander of the hospital in Teagu, Korea, told him that his
1st Cavalry Division records were lost.

3.  The applicant provides in support of his application a copy of a letter
addressed to his Representative in Congress dated 29 October 2006; a copy
of his Hospital Admission Card; a letter addressed to him from the 1st
Cavalry Division Association dated 5 March 2007; and a copy of a Request
Pertaining to Military Records dated 9 January 2007.

CONSIDERATION OF EVIDENCE:

1.  The applicant is requesting correction of an alleged error or injustice
which occurred on 20 November 1952.  The application submitted in this case
is dated 9 January 2007.

2.  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 allows the Army
Board for Correction of Military Records (ABCMR) to excuse failure to file
within the 3-year statute of limitations if the ABCMR determines that it
would be in the interest of justice to do so.  In this case, the ABCMR will
conduct a review of the merits of the case to determine if it would be in
the interest of justice to excuse the applicant’s failure to timely file.

3.  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.

4.  The applicant was inducted into the Army on 14 February 1951 and he
successfully completed his training as a light vehicle driver.

5.  The facts and circumstances pertaining to the applicant's separation
are not on file.  The Report of Separation (DD Form 214) indicates that the
applicant was released from active duty (REFRAD) on 20 November 1952, in
accordance with Special Regulation 615-363-5 and Department of the Army
Message 45184 dated 21 August 1951.

6.  The applicant's DD Form 214 also shows that he received a shell
fragment wound to his left thigh and hand on 7 October 1951; that he was
promoted to the rank and pay grade of private (E-2) on 14 June 1951; and
that at the time of his separation, he was serving in the temporary rank
and pay grade of private first class (E-3) with a date of appointment of
8 February 1952.

DISCUSSION AND CONCLUSIONS:

1.  The available evidence of record shows that at the time the applicant
was REFRAD he was serving in the rank of private first class.

2.  The applicant's contentions have been noted.  However, his DD Form 214
currently shows that he was promoted to the rank of private first class
with an appointment date of 8 February 1952.  Inasmuch as his records
already reflect this rank as private first class, there is no reason for
correcting his records and awarding him back pay and allowances.

3.  In view of the foregoing, there is no basis for granting the
applicant's request.

4.  Records show the applicant should have discovered the alleged error or
injustice now under consideration on 20 November 1952; therefore, the time
for the applicant to file a request for correction of any error or
injustice expired on 19 November 1955.  The applicant did not file within
the 3-year statute of limitations and has not provided a compelling
explanation or evidence to show that it would be in the interest of justice
to excuse failure to timely file in this case.




BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF

________  ________  ________  GRANT PARTIAL RELIEF

________  ________  ________  GRANT FORMAL HEARING

___JA___  ___JM    _  ___WC  _  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

1.  The Board determined that 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.

2.  As a result, the Board further determined that there is no evidence
provided which shows that it would be in the interest of justice to excuse
the applicant's failure to timely file this application within the 3-year
statute of limitations prescribed by law.  Therefore, there is insufficient
basis to waive the statute of limitations for timely filing or for
correction of the records of the individual concerned.




                                  ____ James Anderholm_______
                                            CHAIRPERSON



                                    INDEX

|CASE ID                 |AR20070001678                           |
|SUFFIX                  |                                        |
|RECON                   |                                        |
|DATE BOARDED            |20070712                                |
|TYPE OF DISCHARGE       |                                        |
|DATE OF DISCHARGE       |                                        |
|DISCHARGE AUTHORITY     |                                        |
|DISCHARGE REASON        |                                        |
|BOARD DECISION          |DENY                                    |
|REVIEW AUTHORITY        |                                        |
|ISSUES         1.  310  |131.0000/PROMOTION                      |
|2.                      |                                        |
|3.                      |                                        |
|4.                      |                                        |
|5.                      |                                        |
|6.                      |                                        |


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