IN THE CASE OF:
BOARD DATE: 25 September 2008
DOCKET NUMBER: AR20080012068
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 his record be corrected to show he received a battlefield commission.
2. The applicant states, in effect, that he was offered a battlefield commission by a general officer (GO); however, because he only had 43 days remaining on his current enlistment and was reluctant to reenlist, he was refused the commission. He also indicates that he worked hard, risked his life, and deserved to be a commissioned officer.
3. The applicant provides a Congressional Inquiry and Army response, and Department of Veterans Affairs (VA) medical records 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 applicants 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 applicants failure to timely file. In all other respects, there are insufficient bases to waive the statute of limitations for timely filing.
2. The applicants 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 applicants records were lost or destroyed in that fire. However, there were sufficient documents remaining in a reconstructed NPRC file for the Board to conduct a fair and impartial review of this case. This case is being considered using the applicants separation document (DD Form 214) and the documents he provided through his Member of Congress.
3. The applicants DD Form 214 shows he enlisted into the Regular Army (RA) and entered active duty on 17 January 1951. It also shows he continuously served for 2 years, 11 months, and 25 days until being honorably discharged on 12 January 1954.
4. The applicant's DD Form 214 shows he held the rank of sergeant first class (SFC), which he had attained on 15 April 1953, on the date of his separation. It also shows that he earned the following awards during his tenure on active duty: Parachutist Badge; Korean Service Medal with 2 bronze service stars; United Nations Service Medal; and National Defense Service Medal. The applicant authenticated the separation document with his signature in Item 48 (Signature of Person Being Separated) on the date of his discharge.
5. The NPRC is void of any documents indicating the applicant was ever appointed a commissioned officer either through a battlefield commission or otherwise.
DISCUSSION AND CONCLUSIONS:
1. The applicants contention that his rank should be corrected to show he was appointed a commissioned officer has been carefully considered. However, there is insufficient evidence to support this claim.
2. The available evidence provides no indication that the applicant was ever recommended for or appointed as a commissioned officer through a battlefield commission or otherwise. However, the evidence contains a properly constituted
DD Form 214 which confirms the applicant held the rank of SFC on the date of his separation from active duty, and the applicant authenticated this separation document with his signature on the date of his discharge. In effect, his signature was his verification that the information contained on the DD Form 214, to include his rank, was correct at the time the document was prepared and issued. This DD Form 214 carries with a presumption of Government regularity, and absent any documentary evidence confirming the applicant was appointed a commissioned officer by proper authority while serving on active duty, there is an insufficient evidentiary basis to support granting the requested relief.
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.
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.
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