RECORD OF PROCEEDINGS


	IN THE CASE OF:	  


	BOARD DATE:	  22 April 2008
	DOCKET NUMBER:  AR20080002444 


	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, his grade on his WD AGO 53-55 Form (Enlisted Record and Report of Separation, Honorable Discharge) with a date 
of separation of 2 October 1946 be changed to read first lieutenant.  

2.  The applicant states, in effect, he should have been separated in the grade of first lieutenant.

3.  The applicant provides a copy of his WD AGO Form 100 (Separation Qualification Record) and a personal statement, dated 5 January 2008, in support of his application.

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 complete military service records are not available 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.  This case is being considered 
using reconstructed records that primarily consist of the applicant's WD AGO
Form 53-55, WD AGO Form 100 (submitted by the applicant), a War Department Form No. 371 (Final Payment - Work Sheet), and a letter from the commander of the 1st Battalion, dated 2 September 1946.

3.  The applicant's WD AGO Form 53-55 shows he was inducted and entered active service on 18 October 1944.  He successfully completed basic combat and advanced individual training and was awarded the military occupational specialty 320 (interpreter).


4.  The applicant served in Japan from 20 March 1946 to 3 September 1946.

5.  On 2 October 1946, the applicant was released from active duty.  Item 3 (Grade) of his WD AGO Form 53-55 shows his grade as technician 5th class/grade 5 with a date of rank of 1 September 1946.

6.  The applicant's WD AGO Form 100 shows he entered active service on 
18 October 1944, as a technician 5th class, and he was separated on 
20 October 1946.  This form also shows the applicant was assigned duties as an interpreter for 7 months.  According to the Summary of Military Occupations the applicant performed duties in Japan as a language interpreter with the regional intelligence section acting in the capacity of an officer doing investigation and intelligence work.

7.  There are no orders in the available records promoting the applicant to first lieutenant.

8.  A War Department Form 372 shows the applicant's final payment on his date of discharge, 2 October 1946, he was a technician 5th class.

9.  A letter, dated 2 September 1946, from the commander of the 1st Battalion was written as a letter of recommendation.  Most of the letter is unreadable.  However, in the second paragraph of the letter the commander writes the applicant, while acting as an officer, has been going out on patrols and has shown exceptional skill in the performance of his duties.  The following statement within the letter is legible:  "Due to an overstrength in the Table of Organization, Tec 5 M., although doing the job of an officer and non-commissioned officer, was not able to advance in rank past Technician Fifth Grade."

10.  In the applicant's personnel statement, dated 5 January 2008, he indicates that he was the commander of the Reserve Officer Training Corps (ROTC) at City College of New York.  He also stated that while assigned to "study Japanese in the ASTP (interpreted to mean the Army Specialized Training Program)" he was immediately made company commander of the entire unit.  He further states that he was ordered to wear first lieutenant bars while he was assigned in Japan and he was assured he would be discharged as a first lieutenant.  

11.  Technical Manual 12-235 (Discharge Procedures and Preparation of Separation Forms), in effect at the time, provides that the grade held at time of separation and date of rank or appointment be entered in Item 3 (Grade) of the WD AGO Form 53-55.

12.  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 he should have been separated as a first lieutenant.

2.  Positions held as a student in ROTC and while in specialized training do not constitute commissions as an officer in the Army.  Therefore, while the applicant may have been the cadet commander of his ROTC unit and the class leader (commander) during his specialized training, there is no evidence to show he actually received a commission.

3.  The applicant's WD AGO Form 100 and War Department Form 372 show the applicant's grade on the date of his separation as technician 5th class.

4.  The applicant's WD AGO Form 100 and the letter from his commander both indicate that he performed duties that would normally have been assigned to an officer or non-commissioned officer.  However, the performance of the duties of a higher grade does not constitute a promotion to that grade.  In addition, the letter from his commander specifically states the applicant was unable to advance in rank past technician 5th class.

5.  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. 

6.  There are no orders in the available records promoting the applicant to first lieutenant.  Therefore, without any evidence to the contrary, it must be presumed the entry on the applicant's WD AGO Form 53-55 showing his grade as a technician 5th class at the time of his separation is correct.

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


BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

__x__  __x__x  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

1.  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.  The Board wants the applicant and all others concerned to know that this action in no way diminishes the sacrifices made by the applicant in service to our Nation.  The applicant and all Americans should be justifiably proud of his service in arms.




      _____x___
                 CHAIRPERSON

ABCMR Record of Proceedings (cont)                                         AR20080002444



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DEPARTMENT OF THE ARMY
BOARD FOR CORRECTION OF MILITARY RECORDS
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