IN THE CASE OF:	  

		BOARD DATE:	  3 February 2009

		DOCKET NUMBER:  AR20080012879 


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 WD AGO Form 53-55 (Enlisted Record and Report of Separation - Honorable Discharge) be corrected to show the highest grade he held while on active duty.

2.  The applicant has remained silent and has allowed his counsel to present his case.

3.  In support of his request, the applicant provided a copy of his WD AGO Form 53-55, medical reports, interview notes and a period photograph of himself with the caption, Rome, Italy 1943.

COUNSEL'S REQUEST, STATEMENT AND EVIDENCE:

1.  Counsel requests that the applicant's WD AGO Form 53-55 be corrected to show the applicant was serving in the rank of sergeant when he was discharged.

2.  Counsel states, in effect, that based on time in service, battles, campaigns, decorations and citations, and a field promotion to sergeant, he believes the applicant was a sergeant in the Army at the time he was discharged.  Additionally, he has a picture of the applicant prior to his discharge in Army uniform showing his Combat Infantryman Badge and his sergeant stripes.  The applicant participated in three battles/campaigns and was wounded in action resulting in the loss of his leg.


3.  Counsel provides those documents listed in paragraph three above in support of the applicant's case.

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 records were lost or destroyed in the National Personnel Records Center fire of 1973.  Information herein was obtained from reconstructed personnel records and from other official Army documents.

3.  The applicant's records show he enlisted in the Regular Army on 7 August 1942 and entered into active service on 6 April 1943.  He was honorably discharged with a certificate of disability in the rank of Private First Class, under the provisions of Army Regulation 615-361, on 10 August 1945.  At the time of his discharge, he had completed 3 years and 4 days net active service, with no lost time.

4.  Item 3 (Grade) of the applicant's WD AGO Form 53-55 shows he held the rank of "Pfc" (Private First Class) on the date of his discharge.

5.  Item 38 (Highest Grade Held) of the applicant's WD AGO Form 53-55 shows the highest recorded rank he held while he served on active duty was "Pfc."

6.  The WD AGO Form 53-55 shows the applicant affixed his thumb print to Item 54 and placed his signature in Item 56 (Signature of Person Being Separated) of the WD AGO Form 53-55 on the date he was discharged.

7.  A WD Form No. 371 (Final Payment Roll) on file in the applicant's reconstructed service record shows that on 10 August 1945 he received a total of $148.55.  The Final Payment Roll lists the applicant as a Private First Class and he was paid due entitlements at that rate.

8.  The applicant submitted a copy of a Medical Form 55 C-1 (Special Examination or Additional Data) which was prepared at the Percy Jones General Hospital, Fort Custer, Michigan.  This form shows scars and an amputated left leg - injuries the applicant sustained in combat.  The form when completed identified the applicant to be in the rank of "Pfc."

9.  The photograph the applicant submitted, an unofficial photograph, shows an individual he alleges to be of himself.  The photograph shows a caption which states the photograph was taken in Rome, Italy, in 1943.  The individual in the photograph is wearing the chevrons of a sergeant.

10.  The applicant submitted a copy of his Honorable Discharge Certificate.  The discharge certificate shows his name, his service number, his rank (Private First Class) and that he was Infantry unassigned on the date he was honorably discharged.

11.  The applicant nor counsel submitted documentary evidence to show he was promoted or that he received a field promotion to the rank of sergeant either prior to or at the time of his discharge.

12.  War Department Technical Manual 12-236, in effect at the time of the FSM's separation, provided guidance and instructions for the preparation of the forms to be given to Soldiers on their separation from active duty.  Chapter 3, of this technical manual, provided guidance on the appropriate form to be prepared for enlisted personnel at the time they were discharged, released from active duty, or retired.  The instruction for the completion of Item 3 was to enter the individual's grade held at the time of separation.  The instruction for the completion of  Item 38 was to enter the highest grade in which an individual served during his current period of active duty.

DISCUSSION AND CONCLUSIONS:

1.  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 has failed to submit evidence that would satisfy this requirement.

2.  Neither the applicant nor his counsel submitted documentary evidence to show that he was promoted or that he received a field promotion to sergeant while he served on active duty.

3.  A Medical Form 55 C-1 which was prepared at the Percy Jones General Hospital, Fort Custer, at the time he was receiving medical treatment for his wounds identified the applicant to be in the rank of "Pfc."
4.  The evidence shows the highest verifiable rank and pay grade the applicant attained while he served on active duty was Private First Class.  The applicant was serving in this rank on the date of his honorable discharge.

5.  On the date of his discharge, the applicant affixed his thumb print in the appropriate space and signed his WD AGO Form 53-55 attesting to the correctness and completeness of the information recorded thereon.  There is no evidence the applicant disputed or disagreed with the information recorded on his discharge documents at the time of his discharge or after.

6.  The Final Payment Roll on file in the applicant's reconstructed service record shows that he was paid his final pay as a Private First Class and he was paid due entitlements at that rate.  The applicant signed the final payment roll signifying he received the correct pay.

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

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)                                         AR20080012879





3


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1

ABCMR Record of Proceedings (cont)                                         AR20080012879



2


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1