IN THE CASE OF:	  

		BOARD DATE:	  6 NOVEMBER 2008

		DOCKET NUMBER:  AR20080010421 


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 first lieutenant. 

2.  The applicant states, in effect, that he was recommended for promotion to first lieutenant and his promotion is reflected by the awards he earned on the battlefield.  He also states he was a second lieutenant, infantry.  He served as a platoon leader while attacking a German position in Northern Italy.  He further states, in effect, that his separation document should explain why he should be promoted.

3.  In support of his application, the applicant provides copies of his WD AGO Form 53-98 (Military Record and Report of Separation – Certificate of Service), a completed Standard Form 180 (Request Pertaining to Military Records), and a completed VA Form 21-4138 (Department of Veterans Affairs – Statement in Support of Claim). 

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 show he was commissioned into the Army of the United States, as a second lieutenant, effective 22 April 1943, with prior enlisted service.  He was wounded in action near Casanova, Italy, on 15 July 1944.  

3.  The applicant's records contain Headquarters, 91st Infantry Division General Orders Number 27, dated 9 September 1944, awarding him the Silver Star for gallantry in action on 15 July 1944, near Casanova, Italy.  This award is not shown on his WD AGO Form 53-98.  

4.  A Request for Certification of Position Vacancy memorandum, dated 23 January 1945, requested certification of a position vacancy in the grade of second lieutenant pertaining to the applicant.  At that time, he was attached unassigned to the Detachment of Patients, Thayer General Hospital.  On 26 January 1945, it was determined that his assignment was not essential.

5.  On 1 February 1945, an Army Retiring Board convened and found the applicant incapacitated for full field duty and not incapacitated for limited service, but no position vacancy existed.  The board recommended the applicant be retired from military service; however, the Office of The Surgeon General did not concur with the board's findings.  The Surgeon General's office recommended he be placed on six months limited duty at a fixed installation in a warm climate where he could receive adequate medical attention and at the expiration of that time be reexamined and reevaluated at a general hospital to determine his physical status for military duty.  It was further recommended the applicant's records be returned to the board for reconsideration of its findings.

6.  The applicant was discharged from active duty, as a second lieutenant, effective 21 February 1945, by reason of physical disability.  On 30 April 1945, the applicant was notified of his entitlement to retired pay as a second lieutenant effective 22 February 1945.

7.  Entries on the applicant's WD AGO Form 53-98, Item 29 (Decorations and Citations) lists the following award:  the Purple Heart.  Item 43 (Remarks) lists the following award:  the Lapel Button.



8.  There is no evidence of record to show the applicant was considered and/or recommended for promotion to first lieutenant prior to his discharge.

9.  On 13 March 1945, an Army Retiring Board reconvened and found the applicant incapacitated for full field duty and limited service and recommended he be retired from military service.  The applicant concurred with the board's recommendation.  

10.  In a memorandum, dated 28 November 1945, in response to the applicant's inquiry, he was advised of the award of the Silver Star to him and that the award would be presented to him.

11.  The applicant's record contain an AGO Form 0987 (Information for Processing Former Physically Disabled Members of the Army), dated 7 September 1950, that shows his highest grade satisfactorily held during his career was that of second lieutenant.  

DISCUSSION AND CONCLUSIONS:

1.  In view of the circumstances in this case, the applicant is not entitled to promotion to first lieutenant.  He has not shown error, injustice, or inequity for the relief he now requests.

2.  The applicant contends that he was recommended for promotion to first lieutenant.  The evidence of record shows the applicant was appointed as a second lieutenant effective 22 April 1943.  His highest grade satisfactorily held during his career was that of second lieutenant.  There is no evidence he was promoted to first lieutenant prior to his discharge on 21 February 1945.  Without evidence to the contrary, the applicant is not entitled to an automatic promotion to first lieutenant based on his award of the Purple Heart and the Silver Star.

3.  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 applicant has failed to submit evidence that would satisfy this requirement.

4.  In view of the foregoing, there is no basis for granting the applicant's request.

5.  The applicant should know that this action in no way diminishes the sacrifices he made in service to the United States.  The applicant should be justifiably proud of his service in arms.


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)                                         AR20080010421



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ABCMR Record of Proceedings (cont)                                         AR20080010421


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