IN THE CASE OF:
BOARD DATE: 12 February 2009
DOCKET NUMBER: AR20080013902
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 the record of his deceased father, a former service member (FSM), be corrected to show he held the rank of second lieutenant (2LT).
2. The applicant states, in effect, that his father was promoted to 2LT in the field on 30 March 1945; however, he never received this promotion. He states that as the FSM's son, he would like to see this promotion put through.
3. The applicant provides his birth certificate and a third-party statement in support of the 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 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 FSMs military record is 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 FSMs records were lost or destroyed in that fire. However, there were sufficient documents on file 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 from the NPRC file: Certification of Military Service (NA Form 13038); Master Index Cards; War Department Letter, dated 2 August 1945; Unit Commander Letter, dated 4 May 1945; Purple Heart Certificate; and American Battle Monument Commission Document.
3. The NA Form 13038 on file confirms the FSM served on active duty from
27 March 1943 through 31 March 1945, and that his service was terminated due to his death. It further confirms that he held the rank of staff sergeant on the date of his death. This information is also supported by Master Index Cards in the NPRC file.
4. The NPRC file contains a letter of sympathy from the FSM's unit commander to the FSM's wife, dated 4 May 1945. This letter indicates the FSM was placed in command of his platoon upon the death of his platoon leader and that while serving in this position, the FSM was killed in action on 31 March 1945. The unit commander also indicated that he had planned to give the FSM a battlefield commission based on his performance as the platoon leader, but that all he could give him now was praise and worldly honors. The unit commander addressed the FSM as a staff sergeant in the letter.
5. A War Department letter from The Acting Adjutant General to the FSM's wife, dated 2 August 1945, confirms the FSM was awarded the Silver Star for his gallantry in action in Germany on 31 March 1945, and the Bronze Star Medal for his meritorious achievement in connection with military operations against the enemy on 26 February 1945. This letter lists the FSM's rank as staff sergeant.
6. A Purple Heart Certificate on file, dated 5 June 1945, confirms the FSM was awarded the Purple Heart for wounds he received in action which resulted in his death, while serving as a staff sergeant, on 31 March 1945.
7. An American Battle Monument Commission document on file confirms the FSM was serving as a staff sergeant with the 80th Tank Battalion, 8th Armored Division when he was killed in action on 31 March 1945, and that he was buried in the Netherlands American Cemetery, Margraten, Netherlands.
8. The applicant provides a third-party letter from an individual who served with the FSM during World War II. This individual indicates the FSM's promotion to 2LT came through four days after he was killed.
DISCUSSION AND CONCLUSIONS:
1. The applicant's contention that the records of his deceased father should be corrected to show he was promoted to 2LT prior to his death was carefully considered. However, the evidence confirms that the FSM held the rank of staff sergeant when he was killed in action on 31 March 1945, as evidenced by all the documents remaining on file. This is further confirmed by his unit commander in his 4 May 1945 letter, which confirms the FSM was not promoted to 2LT prior to his death.
2. Although the FSM's service was truly heroic and ultimately resulted in his giving the ultimate sacrifice, absent any evidence that confirms he was actually promoted prior to being killed in action, there is an insufficient evidentiary basis to support granting the requested relief.
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) AR20080013902
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