IN THE CASE OF:	  

		BOARD DATE:	  30 October 2008

		DOCKET NUMBER:  AR20080011833 


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, that her deceased spouse, a former service member (FSM), be promoted to the next higher grade based on having been a Prisoner of War (POW) during World War II.  She further requests that she receive any back pay and arrears due based on the FSM’s promotion. 

2.  The applicant states, in effect, that her spouse was held as a POW from 
8 November 1944 until 4 June 1945, while holding the rank of staff sergeant (S/Sgt).  She believes the FSM should have been promoted to the next higher grade after being released as a POW.  She also states that is has recently become public knowledge that POW's have been promoted to the next higher grade and as a result, the FSM should be promoted in the interest of justice, and she should receive any back pay due based on this promotion.  

3.  The applicant provides the following documents in support of her application: Certificate of Death; Former POW Medical History (VA Form 10-0048), dated 
9 June 1987; and Enlisted Record and Report of Separation (WD AGO 53-55).

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 are not available to the Board for review.  A fire destroyed approximately 18 million service members’ records at the National Personnel Records Center (NPRC) 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.  This case is being considered using reconstructed records, which primarily consist of the FSM’s WD AGO Form 
53-55 and Discharge Certificate, which were submitted by the applicant, and miscellaneous documents that are in the FSM’s NPRC file.  

3.  The FSM’s WD AGO Form 53-55 shows he was inducted into the Army of the United States (AUS) and entered active duty on 10 September 1941.  Item 3 (Grade) shows he held the rank of S/Sgt on the date of his separation, and Item 38 (Highest Grade Held) confirms S/Sgt was the highest rank he attained and held while serving on active duty.  The separation document also confirms he was separated on 28 September 1945, after completing a total of 4 years and 
19 days of active military service.  The applicant authenticated the WD AGO Form 53-55 in Item 56 (Signature of Person Being Separated) on the date of his separation.  

4.  The FSM’s Honorable Discharge Certificate also shows he was honorably discharged in the rank of S/Sgt on 28 September 1945.

5.  The NPRC file contains a routing slip, dated 8 May 1989, which states the FSM was a POW from 8 November 1944 through 12 May 1945.  

6.  The NPRC file also contains an Authorization for Issuance of Awards 
(DA Form 1577), dated 30 November 1989, which authorized the issuance of the POW Medal to the FSM.  

7.  Military Personnel Message, dated 212259Z September 1945, Subject:  POW Promotions directed that Soldier's who were POWs for 18 months or longer, under honorable conditions, would receive a promotion of one grade if not previously promoted after their return to military control. 

8.  An Office of The Adjutant General (OTAG) Letter, dated 24 September 1945 (War Department 383.6 Promotion 21 September 1945), provided a special POW promotion policy.  It states, in pertinent part, that upon their return to military control all enlisted personnel below the grade of master sergeant who were in the status of POW, evader or escapee, for a period of 18 months or longer and provided the circumstances surrounding their loss to the Army of the United States was honorable, would be considered for promotion of one grade.  Regulations with respect to time in position, time in grade, and position vacancy were waived to the extent necessary to effectuate the forgoing.  

DISCUSSION AND CONCLUSIONS:

1.  The applicant's contention that her spouse, a FSM, should be promoted to the next higher rank based on having been a POW was carefully considered.  However, the special World War II POW promotion policy provided only for the promotion of returning POWs who had been held as a POW for 18 months or longer.  The evidence of record confirms the FSM was a POW from 8 November 1944 through 12 May 1945, a period of approximately 6 months.  As a result, it does not appear the FSM qualify for an automatic promotion under the special World War II POW promotion policy.  Therefore, it would not be appropriate or serve the interest of all those who served during World War II and who faced similar circumstances to grant the requested relief in this case.   

2.  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.

3.  The applicant and all others concerned should know that this action in no way diminishes the sacrifices made by the FSM in service to our Nation.  The applicant and all Americans should be justifiably proud of the FSM’s 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)                                         AR20080011833



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ABCMR Record of Proceedings (cont)                                         AR20080011833



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