IN THE CASE OF:	  

		BOARD DATE:	  29 January 2009

		DOCKET NUMBER:  AR20080012699 


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, correction of his WD AGO Form 55 (Honorable Discharge from the Army of the United States - Enlisted Record), dated 24 April 1942, as follows:

   a.  change his last name from "Lxxxxxw" to "Lxxxxxu"; and

	b.  change his grade at the time of his separation from "private" to "private first class, specialist third class."

2.  The applicant states, in effect, that his grade at the time of his separation was "private first class, specialist third class."  The applicant also states that his last name is misspelled on his discharge document.  He concludes that the last letter of his last name is "u" not "w."

3.  The applicant provides copies of his WD AGO Form 55 and a photograph as documentary evidence 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 last name appears as "Lxxxxxw" in three separate entries on his WD AGO Form 55 and his grade appears as "Private" in two separate entries. The applicant authenticated this form by placing his signature in the space labeled "Signature of Soldier" and signed his last name as "Lxxxxxw."

3.  Item 1 (NAME (Last, First, Middle) and Item 11b (Typed or Printed Name) of DD Form 2567 (Pearl Harbor Commemorative Medal Application/Information), dated 24 September 1991, shows the applicant's last name as "Lxxxxxw."  The applicant authenticated this form by placing his signature in Item 11e (Signature) and signed his last name as "Lxxxxxw."

4.  The applicant provides a copy of an undated photograph of two men wearing what appear to be Army uniforms.  One of the men's insignia of rank is one chevron and the other man's insignia of rank is two chevrons.  Neither man is wearing a nametag and the photo does not include a caption.

5.  According to information pertaining to insignia of rank found on the Institute of Heraldry Internet website (www.tioh.hqda.pentagon.mil/), at the time of the applicant's discharge, one chevron represented the rank of private first class/grade 6.  Additionally, this website shows that two chevrons represented the rank or corporal/grade 5.  Finally, this website shows that the title of grade "specialist third class" was not established until 1 July 1955 and at that time, it was associated with the grade of corporal.  The title of grade "private first class specialist third class" does not appear anywhere in the history of enlisted ranks posted on the Institute of Heraldry Internet website.

DISCUSSION AND CONCLUSIONS:

1.  The applicant's contentions that his WD AGO Form 55 should be corrected to show his last name as "Lxxxxxu" and his grade at the time of his separation as "private first class specialist third class" were carefully considered and determined to lack merit.

2.  The evidence of record shows that when the applicant was discharged his last name appeared as "Lxxxxxw" in three separate entries on his WD AGO 55 and when he authenticated this document, he signed his last name as "Lxxxxxw."  Evidence also shows the applicant used the same last name when he applied for issuance of the Pearl Harbor Commemorative Medal.  Furthermore, the applicant did not provide an documentary evidence that his last name is actually "Lxxxxxu."
There is also no indication that he used the requested name during his military service.

3.  Although the applicant provides a photograph of two men, there is no way to determine who the men are.  Assuming the applicant is the man he indicated in the photo, it would appear that he held the grade of private first class at some time during his period of service.  However, it does not serve as evidence of his grade at the time of his separation.

4.  Evidence shows that the title of grade "specialist third class" was not established until 13 years after the applicant was discharged, and at that time, it was associated with the grade of corporal.  The title of grade "private first class specialist third class" does not appear anywhere in the history of enlisted ranks posted on the Institute of Heraldry Internet website.

5.  The Army has an interest in maintaining the accuracy of its records for historical purposes.  The information in those records must reflect the conditions and circumstances that existed at the time the records were created.  In the absence of compelling information to the contrary, there is no basis for changing the applicant’s last name or grade at the time of his separation in this case.  

6.  In order to justify correction of a military record the applicant must show or it must otherwise satisfactorily appear, that the record is in error or unjust.  The applicant did not submit any evidence that would satisfy this requirement.  This action in no way diminishes the sacrifices made by the applicant in service to our Nation.  The applicant and all Americans 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)                                         AR20080012699





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ABCMR Record of Proceedings (cont)                                         AR20080012699



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