IN THE CASE OF:
BOARD DATE: 27 January 2009
DOCKET NUMBER: AR20080014559
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 that the unit listed on his discharge papers be corrected from 377th Infantry, 55th Division to 377th Infantry, 95th Division.
2. The applicant states that he would like this typographical error corrected for his family history.
3. The applicant provides a WD AGO Form 53-55, Enlisted Record and Report of Separation Honorable Discharge; a WD AGO Form 100, Separation Qualification Record; and a letter from the Commanding General, 9th U.S. Army dated 6 May 1945.
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 applicant's military records could not be located and are presumed to have been destroyed at the fire at the records repository at St. Louis, Missouri, in 1973. However, the documents provided by the applicant are sufficient for the Board to consider his request.
3. The applicant was inducted and entered active duty on 21 August 1944, was awarded the military occupational specialty of anti-tank gun crewman, served in the European Theater of Operations from 15 January to 20 June 1945, and was honorably discharged on 3 July 1946.
4. His WD AGO Form 53-55 shows his unit as Anti-Tank Company, 377th Infantry, 55th Division. The applicant's WD AGO Form 100 shows his unit as the 377th Infantry, 95th Division.
5. A search of United States Army units which served in World War II fails to reveal a 55th Division.
DISCUSSION AND CONCLUSIONS:
1. While there are no records to decisively show what the applicant's unit actually was (the two documents submitted have differing units), the fact that the United States Army did not have a 55th Division during World War II shows that the unit entered on the applicant's WD AGO Form 53-55 was in error.
2. There is no reason to doubt the applicant's contention that he was in the 95th Division, and his WD AGO Form 100 also lists the 95th Division. As such, the preponderance of available evidence supports the applicant's contention that he was in the 95th Division.
3. In view of the foregoing, it would be proper to correct the applicant's records as recommended below.
BOARD VOTE:
__X____ ___X____ ____X___ GRANT FULL RELIEF
________ ________ ________ GRANT PARTIAL RELIEF
________ ________ ________ GRANT FORMAL HEARING
________ ________ ________ DENY APPLICATION
BOARD DETERMINATION/RECOMMENDATION:
The Board determined that the evidence presented was sufficient to warrant a recommendation for relief. As a result, the Board recommends that all Department of the Army records of the individual concerned by correcting the applicant's unit listed on his WD AGO Form 53-55 from the 377th Infantry, 55th Division to the 377th Infantry, 95th Division.
_______ _ 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) AR20080014559
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ABCMR Record of Proceedings (cont) AR20080014559
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