IN THE CASE OF:	  

		BOARD DATE:	       6 January 2009

		DOCKET NUMBER:  AR20080015244 


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 a letter to the Secretary of the Army:

	a.  Reconsideration of his previous request for administrative corrections to his WD AGO Form 53-55 (Enlisted Record and Report of Separation - Honorable Discharge), as follows:

		(1)  Change Item 5 (Component) to show “Infantry” instead of “AUS” (for Army of the United States);

		(2)  Change Item 6 (Organization) to show he was assigned to Company L, 135th Infantry Regiment, instead of Medical Detachment, 135th Infantry Regiment (shown as MED DET 135TH INF);

		(3)  Change Item 30 (Military Occupational Specialty (MOS) and Number) to show he held an infantry MOS instead of MOS 657 (Litter Bearer); and

		(4)  Since he was promised a promotion, change Item 3 (Grade).

	b.  Legal sanctions be taken against two Directors of the Army Board for Correction of Military Records (ABCMR) for violations of the ABCMR’s governing regulation, Army Regulation (AR) 15-185, by failing to “Ensure the applicant receives a full and fair opportunity to be heard” and by failing to “Certify the written record of proceedings in pro forma and formal hearings as being true and correct.”

	c.  He be granted a formal hearing before the ABCMR.

2.  The applicant states he has been very patient in the face of the incompetence exhibited by some members of the ABCMR staff in his attempt to correct his World War II (WWII) military record.  His simple case has been made extremely complicated and blown out of proportion because some members of the ABCMR staff repeatedly ignored requests for information and correction of gross mistakes in personnel records.  He adds that he has been given the run-around between agencies, departments, and directorates.

3.  The applicant provided a copy of a self-authored letter, dated 16 August 2008, addressed to the Secretary of the Army and a copy of a self-authored letter, dated 22 June 2008, addressed to his member of congress in support of his application:

CONSIDERATION OF EVIDENCE:

1.  Incorporated herein by reference are military records which were summarized in the previous consideration of the applicant's case by the Army Board for Correction of Military Records (ABCMR) in Docket Numbers AR20060009189, dated 22 February 2007 and AR20080001082, dated 3 June 2008.

2.  As stated in his original Record of Proceedings (ROP), AR20060009189, dated 22 February 2007, the applicant’s complete WWII military records are not available for review and are presumed to be among the 18 million service members’ records destroyed in a fire at the National Personnel Records Center in 1973.  His case was processed using limited copies of documents which he provided, key among which was his WD AGO Form 53-55.

3.  The applicant submitted new argument in two self-authored letters – one dated 22 June 2008 and addressed to his United States Senator, and the other dated 16 August 2008 and addressed to the Secretary of the Army.  The letters express his overall dissatisfaction with the way his case had been handled.  He states that two ABCMR hearings have resulted in incomprehensible corrections, to include sending him two "extra” Bronze Star Medals, four “additional” campaign service stars, an Army of Occupation Medal with Germany Clasp when he was never in Germany, and a Bronze Star Certificate showing his rank as “T/Sergeant” when he was actually a “T/Corporal.”  He adds these corrections were not requested and did not address his basic issues.  The letters are considered new evidence and as such warrant consideration by the Board.


4.  The applicant’s request that the Secretary of the Army prefer charges against two former Directors of the ABCMR for not ensuring that he received a full and fair opportunity to be heard and not certifying the records of proceedings in his case is without merit.  By regulation, the Director, ABCMR is tasked to manage the ABCMR’s day–to–day operations.  It is the Chair of a given ABCMR panel who is charged with “presiding over the panel; conducting a hearing (if required) or a records review; maintaining order; ensuring the applicant receives a full and fair opportunity to be heard; and certifying the written record of proceedings in pro forma and formal hearings as being true and correct.”  These things were accomplished in the applicant’s earlier cases; the ROPs were reviewed by all panel members, votes were recorded, and the Chair signed the ROPs certifying them.  The applicant’s disagreement with the results does not invalidate them or bring into question the process by which those results were achieved.  The applicant was previously advised if he was not satisfied, he had the option of seeking relief in a civil court of appropriate jurisdiction.  He still has that option; the subject of preferring charges is without merit and will not be discussed further in this ROP. 

5.  With respect to the applicant’s request for a personal appearance, paragraph 2-11, AR 15-185, states, “Applicants do not have a right to a hearing before the ABCMR.  The Director or the ABCMR [panel] may grant a formal hearing whenever justice requires.”  It has previously been established that a formal hearing in this matter is unnecessary.  As a result, the request for a personal hearing will not be discussed further in this ROP.

6.  The applicant's WD AGO Form 53-55 shows he was inducted into the Army of the United States on 19 March 1943 and entered active duty in New York City, New York, on 26 March 1943.  This form also shows that, at the time of his separation, the applicant held MOS 657, Litter Bearer, and was assigned to the Medical Detachment, 135th Infantry.  

7.  The applicant's WD AGO Form 53-55 shows he arrived in the European-African-Middle Easters (EAME) Theater of Operation on 6 November 1944 and departed on 15 December 1945.  He completed 1 year, 6 months, and 21 days of continental service and 1 year, 2 months, and 15 days of foreign service.  He was honorably separated on 31 December 1945.

8.  Item 3 (Grade) of the applicant’s WD AGO Form 53-55 shows the entry “T/5” indicating that at the time of separation, his grade was that of a Technician 5th Grade. 



9.  Item 4 (Arm or Service) of the applicant's WD AGO Form 53-55 shows the entry "MD" (Medical).

10.  Item 5 (Component) of the applicant's WD AGO Form 53-55 shows the entry "AUS" (Army of the United States). 

11.  Item 31 (Military Qualifications and Date) of the applicant’s WD AGO Form 53-55 shows he was awarded the Combat Medical Badge.  

12.  Item 32 (Battles and Campaigns) of the applicant's WD AGO Form 53-55 shows he participated in the North Apennines and the Po Valley campaigns during WWII.

13.  Item 33 (Decorations and Citations) of the applicant's WD AGO Form 53-55 shows he was awarded the American Service Medal, the Good Conduct Medal, the World War II Victory Medal, and the European-African-Middle Eastern Campaign Medal.  It is also noted here that based on his award of the Combat Medical Badge and as required by regulatory guidance, the applicant was previously awarded the Bronze Star Medal on 20 May 1994.  Furthermore, based on his participation in two campaigns during his service in WWII, the applicant was also awarded two bronze service stars to be affixed to his already-awarded European-African-Middle Eastern Campaign Medal.

14.  Item 35 (Highest Grade Held) of the applicant’s WD AGO Form 53-55 shows the entry “Tec 5” indicating that Technician 5th Grade was the highest grade the applicant held during his military service.  

15.  The applicant’s reconstructed records do not contain orders assigning or attaching him to Company L, 135th Infantry.  

16.  The applicant’s reconstructed records do not contain any general or special orders, memorandums, endorsements, or letter orders that show he was promoted or appointed beyond the grade of Technician 5th Grade or that he was offered an appointment. 

17.  Army Regulation 15-185 (Army Board for Correction of Military Records) states in pertinent part that the ABCMR is not an investigative body and that it will decide cases based on the evidence of record.  Paragraph 2-9 of the regulation states, in pertinent part, that the applicant has the burden of proving an error or injustice by preponderance of the evidence.


18.  Special Regulation 615-25-15, in effect at the time, provides guidance and shows that MOS 657 was classified as “Litter Bearer.”  This same regulation did not list an MOS classification code for “Medic.”  However, during WWII, MOS 657 encompassed all enlisted medical specialties, including first-aid man (medic), ambulance driver, litter bearer, etc.

19.  War Department Technical Manual 12-235 (Discharge and Release from Active Duty), dated 1 January 1945, and in effect at the time of the applicant’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 instructions for completion of Item 6 (Organization) provided for entry of the unit designation for the last tactical or administrative unit, or similar element to which the Soldier was assigned, rather than the element of which he was a part while moving to a disposition center, reception station, or separation center.

20.  War Department Technical Manual 12-235 did not have line by line instructions for completion of the WD AGO Form 53-55.  The superseding edition had line by line instructions, but item 30 (Military Occupational Specialty and No.) and some others were omitted because they were assumed to be self-explanatory.

21.  The Enlisted Grade Structure in the Army has changed several times since 1942.  During the period 1 September 1942 through 1 August 1948, the Army used the following enlisted grade structure:

	Grade 1		Master Sergeant
	Grade 2		Technical Sergeant
	Grade 3		Staff Sergeant and Technician 3rd Grade
	Grade 4		Sergeant and Technician 4th Grade
	Grade 5		Corporal and Technician 5th Grade
	Grade 6		Private First Class
	Grade 7		Private

22.  The following is a brief history of Army components.  In the 1920s and 1930s, "career" Soldiers were known as the Regular Army, or RA, with the "Enlisted Reserve Corps" and "Officer Reserve Corps" augmented to fill vacancies when needed.  In 1941, the Army of the United States, or AUS, was founded to fight the Second World War.  The RA, AUS, the National Guard, and 
Officer/Enlisted Reserve Corps (ORC and ERC) existed simultaneously.  After World War II, the ORC and ERC were combined into the United States Army Reserve (USAR).

DISCUSSION AND CONCLUSIONS:

1.  The applicant’s contention and argument that his WD AGO Form 53-55 contains various administrative errors have been carefully considered; however, none of the applicant's raised issues was found to have merit.  

2.  The “Component” listed in Item 5 of the WD AGO Form 53-55 referred to the status of a Soldier as either RA (Regular Army) or AUS (Army of the United States).  AUS Soldiers were inductees or draftees, while RA Soldiers were enlistees.  Clearly, the applicant was inducted, or “drafted” in the US Army, thus his component is correctly shown as AUS.

3.  The ABCMR begins consideration of each case with the presumption of administrative regularity; that is, the Board presumes that, in the absence of evidence to the contrary, the record is correct.  It is the applicant’s burden to prove, by a preponderance of the evidence, that an error or injustice exists.  WWII was a chaotic period in the history of the US Armed Forces.  During that period, many Soldiers were moved from one particular MOS and assigned to perform duties in a second MOS which may have been experiencing a critical shortage.  The applicant’s claim that he was, first and foremost, an infantryman is not being disputed; however, the record clearly shows he was a member of the MD arm or service at the time of separation.  This is further supported by the fact that his records reflect a medical MOS of 657, which included First-Aid Man (Combat Medic), Hospital Orderly, Litter Bearer, and Ambulance Driver – and by the fact that he was awarded the coveted Combat Medical Badge.

4.  With respect to his unit of assignment, the applicant’s memoirs and/or recollection of events that took place over 60 years ago are noted; however, there is no evidence in the available records and the applicant did not submit any substantiating evidence in the form of an assignment, attachment, or operational control order that shows he was assigned, attached, or under the operational control of L Company, 135th Infantry.  In the absence of such evidence, it is presumed that the entry that at the time of his separation, the applicant was assigned to the Medical Detachment, 135th Infantry, is correct.

5.  With respect to the applicant’s promised promotion, it is noted that prior to his assignment as a combat medic, he held the rank of Private First Class (Grade 6). As a combat medic, he held the rank of Tech 5 (Grade 5).  It therefore appears 
that he received his promised promotion upon his becoming a combat medic.  It must be presumed that the grade of Technician 5th Grade, which is correctly shown on his WD AGO Form 53-55, was the "promised promotion." 

6.  With respect to the previous corrections made by the Board, and criticized by the applicant as “incomprehensible,” it is noted that the applicant sought to change his branch from “MD” to “INF (for Infantry).”  The Board interpreted this as an “in effect” request for award of the Combat Infantryman Badge.  This prompted the Board to look at all of the applicant’s awards and decorations to ensure he received everything to which he was entitled.  

7.  Nevertheless, the applicant and all others concerned should know that this action in no way diminishes the sacrifices made by the applicant 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 to amend the decision of the ABCMR set forth in Docket Number AR20060009189, dated 22 February 2007 or AR20080001082, dated 3 June 2008.


															XXX
      ______________________
               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)                                         AR20080015244



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ABCMR Record of Proceedings (cont)                                         AR20080015244



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