IN THE CASE OF:	  

		BOARD DATE:	  5 August 2008

		DOCKET NUMBER:  AR20080006899 


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, in effect, promotion to sergeant (SGT).

2.  The applicant states, in effect, that his recommendation for promotion to SGT was submitted, but promotions were suspended.  He further states he was separated in the rank of corporal (CPL), and that his recommendation for promotion to SGT should now be honored.

3.  The applicant provides a self-authored statement; Army Technical Services Caravan #16 Letter, Subject: Recommendation for Promotion, dated 31 October 1946; 23 November 1945 and 23 April 1947 separation documents (WD AGO Forms 53-55); and 2 April 1950 Army of the United States Discharge Certificate [discharge from the United States Army Reserve (USAR)].

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 his 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 applicant's separation documents (WD AGO Forms 53-55 and 
WD AGO Form 100), and the supporting documents provided by the applicant. 

3.  The reconstructed record shows that the applicant was initially inducted into the Army of the United States on 14 October 1944, and continued to serve until he was honorably discharged on 23 November 1945, for the purpose of enlisting into the Regular Army (RA).  The WD AGO Form 53-55 issued at that time shows he separated in the rank of private first class (PFC) and that he completed 1 year, 1 month, and 10 days active military service.

4.  On 24 November 1945, the applicant enlisted in the RA and entered active duty.  He continued to serve until he was honorably discharged on 23 April 1947, for the final time. The WD AGO Form 53-55 issued at that time shows that he was trained in, awarded, and served in military occupational specialty (MOS) 405 (Clerk Typist). 

5.  The final WD AGO Form 53-55 further shows he served in the European Theater of Operations (ETO) from 27 March 1945 through 3 December 1945, and that he earned the World War II Victory Medal.  

6.  Item 3 (Grade) of the applicant’s WD AGO Form 53-55 contains the entry “CPL-16 May 1946,” which indicates he was promoted to the rank of corporal on 16 May 1946.  Item 38 (Highest Grade Held) also contains the entry “CPL,” which indicates this was also the highest rank he held while serving on active duty.  The applicant authenticated this document with his signature in Item 56 (Signature of Person Being Separated).

7.  The reconstructed record contains a Separation Qualified Record (WD AGO Form 100) prepared on the applicant during his final separation processing.  It contains the entry “CPL" in the grade block.  The military occupation assignments portion of the form contains entries indicating that the highest grade he performed duties in was CPL.

8.  The applicant provides an Army Technical Services letter, dated 31 October 1946, Subject:  Recommendation for Promotion.  This letter shows that, while on temporary duty (TDY), his TDY commander recommended to the applicant’s parent unit commander that the applicant be promoted to SGT based on his accomplishments while TDY.

9.  There is no indication in the available documents on file in the applicant's reconstructed record that shows he was ever recommended for promotion by his parent unit commander, or promoted to the rank of SGT during his tenure on active duty.  

10.  The applicant also provides a discharge certificate which shows he was honorably discharged from the Army of the United States while in USAR status in the rank of CPL on 2 April 1950.

11.  Technical Manual 12-235, prescribed the policy and procedure for the preparation and distribution of separation documents during the period in question, and contained item by item entry instructions.  These instructions indicated that the grade a member held on the date of separation would be entered in Item 3 and the highest grade he held during the active duty period covered by the report would be entered in Item 38.  

DISCUSSION AND CONCLUSIONS:

1.  The applicant’s contention that he should be promoted to the rank of SGT and the supporting documents he submitted were carefully considered.  However, 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 evidence provided in this case does not satisfy this regulatory burden of proof. 

2.  The evidence submitted by the applicant confirms that he was recommended for promotion from CPL to SGT by a TDY commander on 31 October 1946. However, there is no evidence to confirm this recommendation was acted upon by the applicant's parent unit commander, or that the applicant was ever promoted to SGT by proper authority while on active duty.  

3.  The available evidence includes a properly constituted WD AGO Form 53-55 that was issued to the applicant upon his final separation from active duty on
23 April 1947, which confirms he held the rank of CPL on the date of his separation, and that this was the highest rank he attained while serving on active duty.  The applicant authenticated this separation document with his signature, 


which in effect, was his verification that the information contained on the
WD AGO Form 53-55, to include his current rank and highest grade held entries, was correct at the time the document was prepared and issued.  

4.  Notwithstanding the promotion recommendation of his TDY commander, absent any evidence showing he was properly recommended for promotion by his parent unit commander, or that he was ever promoted to SGT by proper authority while serving on active duty, there is an insufficient evidentiary basis to support granting the requested relief. 

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)                                         AR20080006899



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ABCMR Record of Proceedings (cont)                                         AR20080006899


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