IN THE CASE OF:	  

		BOARD DATE:	        21 August 2008

		DOCKET NUMBER:  AR20080007447 


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 grade as that of a sergeant (Sgt) instead of private first class (Pfc) and the issuance of a new certificate awarding him the Bronze Star Medal in his correct grade.  

2.  The applicant states that his unit was ordered to secure an Austrian village during World War II (WWII) and that in doing so he liberated a woman’s watch.  However, one of the unit officers ordered him to return the watch to its owner.  Although he returned the watch, within a few days, he was “busted” from Sgt to Pfc and he was reassigned to another outfit.  He further adds that he thinks the penalty was unjust as the watch was returned and he believes the officer who busted him was “sleeping” with the owner of the watch and his actions were simply to impress the woman to his advantage in their illicit relationship.      

3.  The applicant provides a copy of his WD AGO Form 53-55 (Enlisted Record and Report of Separation, Honorable Discharge) and an illegible copy of certificate, showing award of the Bronze Star Medal, 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 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 4 January 1943 and entered active duty on 11 January 1943 in Millvale, Pennsylvania.  He was trained in military occupational specialty (MOS) 274 (Technical Writer).  This form also shows that he was assigned to Company C, 222nd Infantry at the time of his separation.

4.  The applicant's WD AGO Form 53-55 further shows he served in the European-African-Middle Eastern (EAME) Theater during the period 9 December 1944 through 28 February 1946.  He completed 1 year, 10 months, and 19 days of continental service and 1 year, 3 months, and 14 days of foreign service.  He was honorably separated on 13 March 1946.

5.  Item 3 (Grade) of the applicant’s WD AGO Form 53-5 shows the entry “Pfc.”

6.  Item 31 (Military Qualification/Date) of the applicant’s WD AGO Form 53-55 shows he was awarded the Expert Infantryman Badge and Combat Infantryman Badge.  

7.  Item 33 (Decorations and Citations) of the applicant's AGO Form 53-55 shows the applicant was awarded the Good Conduct Medal, the American Theater Ribbon, World War II Victory Medal, and the European-African-Middle Eastern Campaign Medal.  Item 33 does not show award of the Bronze Star Medal.

8.  Item 38 (Highest Grade Held) of the applicant’s WD AGO Form 53-55 shows the entry “Sgt.” 

9.  The applicant's Honorable Discharge Certificate, dated 13 March 1946, shows the applicant’s grade as “Private First Class.”

10.  The applicant’s WD Form 272A (Final Payment-Worksheet), dated 13 March 1946, shows his grade upon separation as “PFC.”

11.  The facts and circumstances surrounding the applicant’s reduction in grade are not available for review with this case.

12.  The applicant submitted an illegible copy of a certificate showing award of the Bronze Star Medal.  

13.  Army Regulation 635-5 (Separation Documents), currently in effect, establishes the standardized policy for preparing and distributing the DD Form 214 (or WD AGO Form 53-55 during WWII).  The regulation directs, in pertinent part, that the purpose of the separation document is to provide the individual with documentary evidence of their military service.  It is important that information entered on the form should be complete and accurate.  The DD Form 214 is a summary of a Soldier's most recent period of continuous active duty to include attendance at basic and advanced training.  It also states, in pertinent part, that the DD Form 214 will be prepared for all personnel at the time of their retirement, discharge, or release from active duty.  The active duty grade or rank and pay grade at the time of separation and the effective date of promotion to the current pay grade (from the most recent promotion or reduction order) are entered in the appropriate blocks on the separation document.

DISCUSSION AND CONCLUSIONS:

1.  The applicant’s record is void of the authority for his reduction from Sgt to Pfc. It is unclear if he was reduced under Article 15 under the Uniform Code of Military Justice, as a result of a Special or General Court-Martial, or other authority for reduction.  Nevertheless, the applicant’s WD AGO Form 53-55 shows his grade as “PFC” at time of separation.  In the absence of evidence to the contrary, it is presumed that the applicant’s WD AGO Form 53-55 is administratively correct and reflects the correct grade upon his separation from the Army. 

2.  The applicant did not submit any substantiating evidence that shows he was unjustly reduced.  The reduction took place over 52 years ago and the Board is not privy to the decision taken by the applicant’s chain of command at the time.  In the absence of conclusive documentary evidence, there is insufficient evidence to correct the applicant’s grade or issue him a new certificate showing award of the Bronze Star Medal in the requested grade.



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.



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      _______ _   _______   ___
               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)                                         AR20080007447



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ABCMR Record of Proceedings (cont)                                         AR20080007447



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