IN THE CASE OF:
BOARD DATE: 19 FEBRUARY 2009
DOCKET NUMBER: AR20080018709
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 his records be corrected to reflect that he was promoted to the rank of "Motor Sergeant."
2. The applicant states that before and after graduating from motor sergeant's school in Germany, he was told that he would attain the rank of motor sergeant. However, he was never promoted to the rank of motor sergeant and when he inquired about it, he was told that it would be taken care of.
3. The applicant provides a copy of his Separation Qualification Record (DA Form 493), a copy of his report of separation (DD Form 214), a copy of his Honorable Discharge Certificate, and a copy of his diploma from the Motor Sergeant's Course.
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 was born on 19 October 1929 and was inducted in the Army of the United States in New York City, New York on 18 January 1951. He completed his training and was transferred to Germany.
4. The available records show that he served as a driver for 10 months, he was advanced to the temporary rank of private first class (PFC) on 11 December 1951, and he was assigned to Headquarters Company, 2nd Battalion, 169th Infantry Regiment. He was appointed to the rank of acting corporal on 26 April 1952.
5. He completed the Motor Sergeant's Course for military occupational specialty (MOS) 1014 on 20 June 1952 and was assigned as the battalion motor sergeant for 6 months.
6. On 24 December 1952, he was honorably released from active duty at Camp Kilmer, New Jersey in the rank of PFC. He had served 1 year, 11 months, and 6 days of total active service and was transferred to the United States Army Reserve (USAR) to fulfill his statutory service obligation. He was honorably discharged from the USAR in the rank of PFC on 8 January 1957.
DISCUSSION AND CONCLUSIONS:
1. While the sincerity of the applicant's claim that he was told that he would be promoted to the rank of motor sergeant is not in doubt, in actuality, motor sergeant was not a rank; it was an MOS title and a duty position.
2. The applicant's highest paying rank was that of a PFC and he actually served as an acting corporal. Accordingly, he had to attain, or be promoted to the rank of corporal before he could be promoted to the rank of sergeant.
3. Although his available records reflect that he performed the duties of a battalion motor sergeant, that in itself did not automatically confer a promotion to the rank of sergeant or higher, nor did it negate the regulatory requirements to be promoted in sequence to the next higher grade.
4. Therefore, in the absence of evidence to show that he was properly recommended for promotion and that his promotion was not processed to completion or that a promotion order was published and he was not promoted, there appears to be no basis to grant his request.
5. 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 that requirement.
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) AR20080018709
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ABCMR Record of Proceedings (cont) AR20080018709
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