IN THE CASE OF:	  

		BOARD DATE:	        20 November 2008

		DOCKET NUMBER:  AR20080012714 


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 Separation Qualification Record (WD AGO Form 100) be corrected to show his rank as captain (CPT) vice first lieutenant (1LT) as is currently listed.

2.  The applicant states, in effect, that he was promoted to CPT; however, his promotion orders cannot be located.  He further states that he requests that his military records be corrected to reflect his promotion to CPT.

3.  The applicant provides his WD AGO Form 100 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 (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 that include the following documents:  Officer and Warrant Officer Qualification Card (WD AGO Form 66); WD AGO Form 100; Military Record and Report of Separation Certificate of Service (WD AGO Form 53-98); Report of Entry on Active Duty; Officer's Adjusted Service Rating Form; and Army Service Forces First Service Command, War Department Separation Center, Special Orders Number 86, dated 5 December 1986.

3.  The applicant's records show he was appointed as a second lieutenant in the Army of the United States (AUS) and was ordered to active duty on 29 May 1943.

4.  Item 14 (Grade, Appointments, and Promotions) of the applicant's WD AGO Form 66 shows he was promoted to the rank of 1LT on 16 April 1945, and that this is the highest rank he attained while serving on active duty.  An Officer's Adjusted Service Rating Form in the NPRC file shows the applicant had an efficiency index of 33.6.

5.  The applicant’s NPRC file contains Army Service Forces First Service Command, War Department Separation Center, Special Orders Number 86, dated 5 December 1945, which directed the applicant’s release from active duty (REFRAD) on 26 January 1946 by reason of demobilization.  These orders listed his rank as 1LT.

6.  The applicant’s NPRC file is void of any orders or other documents that indicate he was ever promoted to CPT by proper authority prior to or in conjunction with his REFRAD.

7.  The applicant’s WD AGO Form 100 lists his rank as 1LT in item 3 (Grade) and in item 11 (Grade) of the Military Occupational Assignments portion of the form.  Item 3 (AUS Grade) of his WD AGO Form 53-98 also lists his rank as 1LT and he authenticated this document with his signature in item 44 (Signature of Officer Being Separated) on the date of his separation which was 26 January 1946.

8.  On 16 October 1945, the War Department announced a new promotion policy for officers being REFRAD as a result of demobilization after World War II.  This guidance was modified on 13 December 1945, and was published in War Department Circular 10, dated 11 January 1946.  This guidance provided for promoting 1LTs who had 18 months of time in grade and attained a minimum efficiency index of 40 or higher to CPT coincident with processing for REFRAD.

DISCUSSION AND CONCLUSIONS:

1.  The applicant's contention that he was promoted to CPT was carefully considered.  However, there is insufficient evidence to support this claim.

2.  By regulation, officers being REFRAD as a result of demobilization after World War II in the rank of 1LT who had completed 18 months of time in grade and attained a minimum efficiency index of 40 or higher would be promoted to CPT coincident with processing for their REFRAD.

3.  The applicant’s evidence confirms the applicant was promoted to 1LT on 16 April 1945 and that he was REFRAD on 26 January 1946, with a little more than 9 months of time in grade as a 1LT, as evidenced by entries on his WD AGO Form 66 and WD AGO Form 53-98.  Further, an Officer's Adjusted Service Rating Form on file shows he had an efficiency index of only 33.6.  As a result, he did not meet the War Department promotion criteria required to be promoted to CPT coincident with his REFRAD processing.  Therefore, absent any evidence that he was promoted to CPT by proper authority while serving on active duty, there is an insufficient evidentiary basis, and it would not be appropriate or in the interest of all those who served during World War II and faced similar circumstances to grant the requested relief in this case.

4.  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.

5.  The Board wants the applicant and all others concerned to know that this action in no way diminishes the sacrifices he made 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)                                         AR20080012714



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ABCMR Record of Proceedings (cont)                                         AR20080012714



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