IN THE CASE OF:	  

		BOARD DATE:	  15 October 2008

		DOCKET NUMBER:  AR20080004618 


THE BOARD CONSIDERED THE FOLLOWING EVIDENCE:

1.  Application for correction of military records (with supporting documents provided, if any).

2.  Military Personnel Records and advisory opinions (if any).


THE APPLICANT'S REQUEST, STATEMENT, AND EVIDENCE:

1.  The applicant, the son of a former service member (FSM) requests, in effect, that his father's records be corrected to show that he was discharged from the Army in the rank of lieutenant.

2.  The applicant states, in effect, that his father, a FSM, was discharged as a lieutenant.  His father wrote his records down just before he passed away in March 2007 and he had no reason to lie.  His father served his country well; so, he requests that this be given to him so this can be put on his gravestone.

3.  In support of his request, the applicant submitted a copy of an undated, hand-written record authored by his father, the FSM, before he passed away; a copy of the FSM's death certificate; a copy of his [the applicant's] birth certificate to prove that he is an "applicant with a proper interest"; and a copy of a durable power of attorney completed by his mother appointing him her true and lawful Attorney-in-Fact since she is alive and would normally have been the "applicant with a proper interest" in this case.

CONSIDERATION OF EVIDENCE:

1.  The FSM's military records were lost or destroyed in the National Personnel Records Center fire of 1973.  Information herein was obtained from reconstructed personnel records and from other official Army documents.

2.  The Electronics Army Serial Number Merged File (Enlistment Records), Archival Database (AAD), maintained by The National Archives, shows the FSM enlisted in the Army, in Abilene, Texas, on 7 April 1942, for the duration of the War or other emergency, plus six months, subject to the discretion of the President or otherwise, according to law.

3.  War Department Forms 366 and 366a (Final Payroll) of Seventh Company, Officer Candidate School, Voucher No. 4139, show the FSM was honorably discharged, on 1 January 1943, in the rank of Corporal, to accept a commission in the Army of the United States.  At the time of his discharge from his enlisted status he was assigned to Seventh Company, Officer Candidate School, Fort Knox, Kentucky, and had completed 8 months and 26 days active duty service.  The FSM entered active duty as a Second Lieutenant on 2 January 1943.

4.  On 28 September 1943, the FSM, and another officer, were arraigned and placed on trial in Bizerte, Tunisia.  General Court-Martial Order Number 48, published by Headquarters, North African Theater of Operations, United States Army, on 6 December 1943, shows the FSM was charged with being drunk and disorderly while in uniform in a public place, to wit:  the public streets and Military Police Parking Lot, Bone, Algeria; and of being drunk while on duty as an officer in charge of an enlisted men's recreation trip on 4 August 1943.  The FSM was found guilty only of being drunk while on duty as an officer in charge of an enlisted men's recreation trip on 4 August 1943.  The FSM was sentenced to be dismissed from the service.  The sentence was adjudged on 28 September 1943 and was approved on 1 November 1943.  On the same date, the record of trial was forwarded for review pursuant to Article of War 48 by the Commander, Eastern Base Section, APO #763.

5.  A Memorandum of Opinion, Subject:  Application for Relief under Article of War 53, dated 18 October 1950, shows that after a board of review in a branch office of the Judge Advocate General, with the North African Theater of Operations, constituted under Article of War 50½, that had held the record of trial legally sufficient; the Commanding General, North African Theater of Operations, confirmed the sentence and ordered it executed.  The FSM ceased to be an officer of the Army at midnight on 3 January 1944.

6.  A War Department Form 336 (War Department, Pay and Allowance Account), shows the FSM was returned to the United States for the purpose of being dismissed from the Army of the United States and was so separated on 3 January 1944.  This form shows that the FSM's pay on his dismissal date was calculated based on his rank at the time; that of a Second Lieutenant.

7.  The FSM's reconstructed records do not contain a WD AGO Form 53-99 (Discharge from the Army of the United States, Military Record and Report of Separation).

8.  In his handwritten, self-authored notes, the FSM stated that he served in the United States Army Air Force in San Antonio, Texas, from 1935 to 1938.  He joined the Civilian Conservation Corps in 1939 and served for two years rising to the rank of First Sergeant.  He adds that he was drafted into the Army in 1941 and served three years and was discharged as a lieutenant.  No corroborating evidence was submitted and no evidence was found to support the FSM's notes.

9.  Training Manual 12-236 specifies the separation form to be issued to officers. Officers released from active duty and honorably discharged were provided a WD AGO Form 53-97.  Officers honorably released from active duty due to their having submitted an honorable resignation were provided a WD AGO Form 53-98.  Officers who were separated from the Army due to their resignation for the good of the service or who were dismissed from the Army were provided a WD AGO Form 
53-99.  Officers not entitled to a WD AGO Form 53-98 would not be furnished a certificate of service.

10.  Although not clear, it appears that the applicant is indirectly asking for the issuance of a headstone with the highest rank held by his father – that of lieutenant – inscribed thereon.  This issue is not within the purview of the Army and these issues are routinely handled by the Department of Veterans Affairs.

11.  Department of Veterans Affairs booklet, Federal Benefits for Veterans and Dependents, Chapter 7, states that veterans discharged from active duty under conditions other than dishonorable (emphasis added) and service members who die while on active duty may be eligible for burial and memorial benefits provided by the Department of Veterans Affairs.  To determine eligibility for memorial benefits, a copy of the veteran's discharge document that specifies the period of active duty and character of discharge, along with the deceased's death certificate and proof of relationship to the veteran (for eligible family members) are all that are usually needed to determine eligibility.

DISCUSSION AND CONCLUSIONS:

1.  The evidence in this case shows that the FSM was not discharged as he alleged.  He was dismissed from the Army as a result of sentence of a general court-martial.

2.  After the record of trial was reviewed and found to be legally sufficient, the Commanding General, North African Theater of Operations, confirmed the sentence and ordered it executed.  The FSM was dismissed and he ceased to be an officer of the Army at midnight on 3 January 1944.

3.  Based on the evidence, the applicant is not entitled to a correction of the FSM's record to show he was discharged as opposed to being dismissed from the Army.

4.  The evidence shows that the highest rank satisfactorily held by the applicant's father was that of Corporal.  This rank was achieved before he was honorably discharged to accept a commission as a Second Lieutenant on 2 January 1943.

5.  The applicant is advised to visit with a representative of the Department of Veterans Affairs to determine his father's eligibility for the issuance of a headstone showing the highest rank he served in.  These issues - the issuing of headstones and the rank inscribed thereon - are within the purview of the Department of Veterans Affairs and not within the purview of the Army.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

__x_____  ___x____  ___x____  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.



      __________x____________
               CHAIRPERSON
      
I certify that herein is recorded the true and complete record of the proceedings of the Army Board for Correction of Military Records in this case.
ABCMR Record of Proceedings (cont)                                         AR20080004618



3


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1

ABCMR Record of Proceedings (cont)                                         AR20080004618



2


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1