IN THE CASE OF:
BOARD DATE: 17 MARCH 2009
DOCKET NUMBER: AR20080016614
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 correction of his WD AGO Form 53-98 (Military Record and Report of Separation - Certificate of Service) to show award of the Silver Star, the Bronze Star Medal with "V" Device, and a second award of the Purple Heart (correctly known as the Purple Heart with First Oak Leaf Cluster). He also requests that item 3 (AUS [Army of the United States] Grade) on his WD AGO Form 53-98 be changed to captain.
2. The applicant states that these items were omitted from his WD AGO Form 53-98.
3. The applicant provides a copy of his WD AGO Form 53-98; a medical document, dated 11 February 1945; a copy of his Officer's and Warrant Officer's Qualification Card; recommendations for the Silver Star and the Bronze Star Medal with "V" Device; a certificate, dated 27 June 1945; and a recommendation for the Purple Heart with First Oak Leaf Cluster in support of his 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 applicant requested correction of his records to show award of the Silver Star and the Bronze Star Medal with "V Device. There are no orders or other evidence authorizing these decorations to the applicant. In the absence of a proper award authority for these decorations, the applicant may request award of the Silver Star and the Bronze Star Medal with "V" Device under the provisions of section 1130 of Title 10, U.S. Code. The applicant has been notified by separate correspondence of the procedures for applying for these decorations under section 1130 and, as a result, they will not be discussed further in this Record of Proceedings.
3. The applicants 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 in 1973. It is believed that the applicants 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.
4. The applicant's WD AGO Form 53-98 shows he entered active duty on 17 July 1943. He served as a tank unit commander in the European theater of operations from 19 October 1944 through 2 November 1945 and was released from active duty on 10 January 1946 in the rank of first lieutenant.
5. The applicants WD AGO Form 53-98 shows the Purple Heart with First Oak Leaf Cluster as an authorized award. Therefore, this portion of his request will not be discussed further in this Record of Proceedings.
6. The applicant provided a copy of his WD AGO Form 53-98 which shows the entry, "CAPT" [captain] in item 3. However, the entry is in a bold type font different from the remainder of the form.
7. Item 14 (Grade Appointments and Promotions) on the applicants Officer's and Warrant Officer's Qualification Record shows that he was promoted to first lieutenant on 14 September 1944. The captain section is blank.
8. There are no promotion orders in the available records which show the applicant was promoted to captain prior to his release from active duty on 10 January 1946.
DISCUSSION AND CONCLUSIONS:
There is no evidence of record which shows that the applicant was promoted to captain prior to his release from active duty and as such no evidence to confirm the entry in item 3 of his WD AGO Form 53-98.
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.
___________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) AR20080016614
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ARMY BOARD FOR CORRECTION OF MILITARY RECORDS
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ABCMR Record of Proceedings (cont) AR20080016614
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ARMY BOARD FOR CORRECTION OF MILITARY RECORDS
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