IN THE CASE OF:	  

		BOARD DATE:	  23 December 2008

		DOCKET NUMBER:  AR20080014430 


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, promotion from corporal (CPL) to technical sergeant (TSGT). 

2.  The applicant states, in effect, at the end of the war with Germany he had only 82 points and as a result was transferred from the 938th Field Artillery Battalion back to the United States, and was assigned to the 746th Field Artillery Battalion and placed in charge of the personnel section.  He claims that prior to his reassignment to the 746th Field Artillery Battalion he was promoted to TSGT; however, his promotion orders did not catch up with him prior to his discharge.

3.  The applicant provides the following documents in support of his application:  Self-Authored Statement; Separation Document (WD AGO Form 53-55); Department of Veterans Affairs (VA) Statement in Support of his Claim (VA Form 21-4138); Authorization for Issuance of Awards (DA Form 1577), Army Review Boards Agency letters, dated 3 June 2008 and 18 July 2008; and Army Board for Correction of Military Records letter, dated 11 February 2008.


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, which primarily consist of the applicant's WD AGO 
Form 53, and other documents remaining in the NPRC file and those provided by the applicant.   

3.  The applicant's WD AGO Form 53-55 shows he was inducted into the Army on 5 February 1943 and that he entered active duty on 12 February 1943.  Item  3 (Grade) shows he held the rank of CPL on the date of his separation and Item 38 (Highest Grade Held) confirms CPL was the highest rank he attained and held while serving on active duty.  The separation document also confirms he was separated on 29 October 1945, after completing a total of 2 years, 8 months, and 25 days of active military service.  The applicant authenticated the WD AGO Form 53 in Item 56 (Signature of Person Being Separated) on the date of his separation.  

4.  The applicant's Honorable Discharge Certificate also shows he was honorably discharged in the rank of CPL on 29 October 1945.

5.  There are no available orders or other documents remaining in the NPRC file that show the applicant was ever recommended for or promoted to a grade higher than CPL during his active duty tenure.  


6.  Technical Manual 12-235 prescribed the policy and procedure for the preparation and distribution of separation documents during the period the applicant served.  It stated, in pertinent part, that the rank held on the date of separation would be entered in Item 3 of the WD AGO Form 53-55 and that the highest grade held by a service member while serving on active duty would be entered in entered in Item 38.  

DISCUSSION AND CONCLUSIONS:

1.  The applicant’s contention that he was promoted to the rank of TSGT was carefully considered.  However, there is insufficient evidence to support this claim. 

2.  The applicant's military records were not available for review, however, there is a properly constituted separation document on file that confirms he held the rank of CPL on the date of his separation, and that this was the highest rank he attained while serving on active duty.  The applicant authenticated this document with his signature on the date of his separation.  In effect, his signature was his verification that the information on the WD AGO Form 53, to include the grade and highest grade held entries, was correct at the time the separation document was prepared and issued.  Absent any documentary evidence in the NPRC file or provided by the applicant that shows he was ever recommended, selected and promoted to a grade higher than CPL 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.

4.  The applicant and all others concerned should 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)                                         AR20080014430



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ABCMR Record of Proceedings (cont)                                         AR20080014430



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