IN THE CASE OF:	  

	BOARD DATE:	  

	DOCKET NUMBER:  AR20080007445 


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, as the son of the deceased former service member (FSM) requests, in effect, that the FSM’s NA Form 13038 (Certificate of Military Service) be corrected to show his rank as 2nd Lieutenant or 1st Lieutenant.

2.  The applicant states, in effect, that the FSM’s WD AGO Form 100 (Separation Qualification Record) shows his grade as 2nd Lieutenant with #’s (sic MOS [Military Occupational Specialty]) as 1542, Infantry Unit Commander, 5621, Club Officer, and 0632, Packing and Crating Officer.  The applicant believes that there was a time in 1946 that an individual would be awarded an upgrade of one rank at the time of discharge.  He assumed that the FSM would have been awarded the rank of 1st Lieutenant and he feels that his father, the FSM, is one of the many heroes of WWII and would like to pass the corrected information on to their families.

3.  In support of his request, the applicant provides a copy of the FSM’s NA Form 13038, a copy of the FSM's WD AGO Form 100, a copy of his WD AGO Form 53-98 (Military Record and Report of Separation, Certificate of Service), a copy of the FSM’s Battlefield Promotion letter, and a copy of the FSM's Death Certificate in support of his request.






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 FSM's military records were lost or destroyed in the National Personnel Records Center fire of 1973.  Records available to the Board were obtained from alternate sources.  The FSM’s Certificate of Military Service, dated 21 March 2007, shows he was inducted on 4 September 1942 and was honorably separated on 2 March 1945, as a technical sergeant.

3.  The FSM’s WD AGO Form 53-98 shows that he was commissioned as a 2nd Lieutenant, while serving in the ETO (European Theaters of Operations) on 3 March 1945.  

4. The applicant provided a copy of a letter, from Headquarters, 291st Infantry, Subject:  Publicity, dated 4 March 1945.  The letter states that the FSM was awarded a battlefield appointment effective 3 March 1945 for his outstanding performance in actual combat. 

5.  The FSM continued to serve until he was released from active duty on 12 March 1946, in the rank of 2nd Lieutenant.

6.  The FSM died on 5 November 2003.

7.  The FSM's narrative efficiency rating is unavailable for review by the Board.

8.  A Joint Resolution, Public Law 77-252, dated 22 September 1941, provided that, "during the present emergency, temporary appointments as officers of the Army of the United States could be made without appointing such persons as officers in any particular component of the Army of the United States."  It further provided that such appointments could be vacated at any time by the President, and if not sooner vacated, would continue "during the present emergency and 6 months thereafter."
9.  On 31 October 1945, the War Department announced a new promotion policy for officers being released from active duty as the result of the demobilization after WWII.  This guidance was modified on 13 December 1945, and was published as War Department Circular 10, dated 11 January 1946.  These documents, in pertinent part, provided for the terminal leave promotions of certain officers to the next higher rank (from 1LT through colonel).  Officers were required to have held their prior rank a specified period of time.  In the case of promotions from 1LT to captain, the period was 18 months.  However, the circular also provided that officers would be given 50 percent credit for all time spent in the lower rank overseas.  The officer's narrative efficiency ratings would be converted to a numerical rating as follows:

	    NARRATIVE RATING    POINTS
	    Superior                          50
	    Excellent                         40
	    Very Satisfactory            30
	    Satisfactory                     20
	    Unsatisfactory                 10

10.  Numerical ratings would be converted to a narrative rating, then an efficiency index score (points).  (Note: Ratings between 3.5 and 5.49 were converted to an excellent narrative rating.)  To be promoted, the officer's combined efficiency index was required to be 40 points or higher for all rated periods while on active duty.  For officers already released from active duty, their cases would be referred to the War Department for resolution.  Promotions would be effective the date the officer departed on terminal leave.

DISCUSSION AND CONCLUSIONS:

1.  The evidence of record shows the FSM's first period of service from 4 September 1942 to 2 March 1945 was served in an enlisted status.  The FSM's Certificate of Military Service, dated 21 March 2007, shows he was separated as a technical sergeant.  

2.  On the day of the FSM's release from active duty, his WD AGO Form 100 was available for use in preparation of his WD AGO Form 53-98.  The preponderance of the evidence shows the FSM received a battlefield appointment effective 3 March 1945 and was released from active duty on 12 March 1946, as a 2nd Lieutenant.  There is insufficient evidence in the available records to show that the FSM was promoted to the rank of 1st Lieutenant prior to his separation from active duty.  


3.  The applicant believes that the FSM's Certificate of Military Service should show his rank as 2nd Lieutenant or 1st Lieutenant; however, this Certificate of Military Service was prepared to document his enlisted service before receiving his battlefield appointment.  The FSM's rank on his Certificate of Military Service is correct as currently constituted.  

4.  The applicant also believes, in effect, that his father, the FSM, should have been awarded the rank of 1st Lieutenant prior to his separation date. The FSM's records are unavailable for review, and the applicant has provided no evidence, to show that the FSM was considered or recommended for promotion to 1st Lieutenant prior to his separation from active duty.  

5.  At the time of the FSM's separation, he had 1 year and 9 months time in grade as a 2nd Lieutenant.  The FSM's narrative efficiency rating is not available and all available records show he was separated from active duty in that rank.  It appears that the FSM was separated with no promotion consideration and did not meet the standards.  There is no indication in the available records to show that a calculation was prepared prior to his separation date or that his case was referred to the War Department for resolution.

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

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)                                         AR20080007445



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ABCMR Record of Proceedings (cont)                                         AR20080007445



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