IN THE CASE OF:
BOARD DATE: 31 July 2008
DOCKET NUMBER: AR20080005990
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 requests correction of his records to show his rank/grade as General (GEN)/O-10 instead of private first class (PFC)/E-3.
2. The applicant states that on 15 December 1944, the Army Chief of Staff, General George C. Marshall, Jr., re-vetted him to a four-star general on that date.
3. The applicant provides the following additional documentary evidence in support of his application:
a. WD AGO Form 53-55 (Enlisted Record and Report of Separation), dated 12 November 1945.
b. Headquarters, 45th Infantry Division, General Orders Number 199, dated 3 June 1945, awarding the applicant the Purple Heart.
c. Disability Pension Adjudication Letter, dated 8 February 1946.
d. Honorable Discharge Certificate, dated 12 November 1945.
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 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.
3. The applicant's WD AGO Form 53-55 shows he was inducted in the Army of the United States on 10 January 1944 and entered active duty in Houston, Texas, on 31 January 1944 in military occupational specialty (MOS) 745 (Rifleman). He was assigned to Company E, 180th Infantry Regiment.
4. The Applicant's WD AGO Form 53-55 further shows he served in the European-African-Middle Eastern (EAME) Theater during World War II (WWII) from 1 April 1945 to 8 September 1945. He completed 1 year, 4 months, and 9 days of continental service and 5 months and 24 days of foreign service. He was honorably separated on 12 November 1945.
5. Item 3 (Grade) of the applicant's WD AGO Form 53-55 shows he was separated in the rank of private first class (PFC) and Item 38 (Highest Grade Held) of this form shows the entry "PFC."
6. Headquarters, 45th Infantry Division, General Orders Number 199, dated 3 June 1945, show the applicant was awarded the Purple Heart for wounds received as a result of enemy action on 30 April 1945.
7. The applicant's Honorable Discharge Certificate, dated 12 November 1945, shows his rank as PFC.
8. The applicant's disability pension adjudication letter, dated 8 February 1946 shows his rank as "PFC."
9. There is no indication in the applicant's reconstructed records that shows he was commissioned or appointed as a commissioned officer, or promoted to any officer grade.
10. The applicant's reconstructed record is void of a copy of General Order Number 33. Furthermore, the applicant did not submit a copy of this order.
DISCUSSION AND CONCLUSIONS:
The available evidence of record shows that the highest grade held by the applicant during his military service was PFC. There is no evidence in the available record and the applicant did not submit substantiating evidence that shows he was nominated for or promoted to General Officer during his service in WWII. Therefore, there is insufficient evidence to grant the applicant the requested relief.
BOARD VOTE:
________ ________ ________ GRANT FULL RELIEF
________ ________ ________ GRANT PARTIAL RELIEF
________ ________ ________ GRANT FORMAL HEARING
__xxx___ __xxx___ __xxx___ 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.
XXX
_______________________
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) AR20080005990
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ABCMR Record of Proceedings (cont) AR20080005990
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