IN THE CASE OF:
BOARD DATE: 05 FEBRUARY 2009
DOCKET NUMBER: AR20080016722
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 he be issued an Honorable Discharge Certificate that reflects his rank as a staff sergeant.
2. The applicant states, in effect, that he was provided a replacement for his Honorable Discharge Certificate and he has noticed that his rank was incorrectly reflected as a sergeant instead of a staff sergeant.
3. The applicant provides a copy of his replacement Honorable Discharge Certificate, a copy of his Enlisted Record and Report of Separation Honorable Discharge (WD AGO Form 53), and a copy of his birth certificate.
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 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.
3. The applicant enlisted in the Regular Army on 21 November 1946 and entered active duty at Fort Hayes, Ohio. He completed his training as an administrative clerk and departed for the European Theater of Operations (ETO) on 24 February 1947.
4. He departed the ETO on 24 July 1949 and was transferred to Camp Kilmer, New Jersey, where he was honorably discharged in grade three on 15 August 1949. His WD AGO Form 53 shows that grade three was the highest grade he attained.
5. On 10 August 1953, the applicant was issued a DD Form 303A by The Adjutant General of the Army to replace a Certificate in Lieu of a Lost or Destroyed Certificate. That form reflects that he was discharged in the rank of sergeant.
6. The enlisted grade structure of the Army during the period of 1 September 1942 to 31 July 1948 provided that personnel serving in the pay grade of Grade Three were serving either in the rank of staff sergeant or technician third grade (T3). Effective 1 August 1948, the grade structure was changed to reflect that personnel serving in grade three were serving in the rank of sergeant. The ranks of staff sergeant and technician grades were eliminated.
DISCUSSION AND CONCLUSIONS:
1. While the sincerity of the applicant's contention that he served as a staff sergeant is not in doubt, at the time of the applicant's discharge, the rank of staff sergeant no longer existed.
2. The rank of staff sergeant ceased to exist on 31 July 1948 and the applicant was discharged on 15 August 1949. Accordingly, he was discharged in the rank that properly represented his grade (grade three) at the time.
3. While the absence of records and the passage of time (50+ years) make it difficult at best to determine what happened in his case, it must be presumed, in the absence of evidence to the contrary, that what the Army did at the time was correct. Therefore, in the absence of evidence to show that his records are in error, there appears to be no basis to grant his request.
BOARD VOTE:
________ ________ ________ GRANT FULL RELIEF
________ ________ ________ GRANT PARTIAL RELIEF
________ ________ ________ GRANT FORMAL HEARING
____X____ ___X_____ ___X_____ DENY APPLICATION
BOARD DETERMINATION/RECOMMENDATION:
1. 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.
2. The Board wants the applicant and all others concerned to know that this action in no way diminishes the sacrifices made by the applicant in service to the United States. The applicant and all Americans should be justifiably proud of his service in arms.
_______ _ 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) AR20080016722
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ABCMR Record of Proceedings (cont) AR20080016722
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