IN THE CASE OF:	  

		BOARD DATE:	        24 MARCH 2009

		DOCKET NUMBER:  AR20080018867 


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 DD Form 214 (Report of Separation from the Armed Forces of the United States) be corrected to show he was released from active duty (REFRAD) in the rank of corporal (CPL).

2.  The applicant states that he passed a noncommissioned officer course at Camp Breckenridge, Kentucky on 14 January 1952 and he was told that once he passed it, he would be promoted to the rank of CPL.

3.  The applicant provides a copy of his DD Form 214.

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 applicant’s 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 applicant’s 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 are not available for review.  A fire destroyed approximately 18 million service members’ records at the National Personnel Records Center in 1973.  It is believed that the applicant’s 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 27 September 1930 and was inducted in Lapeer, Michigan on 5 October 1951.  He completed his training as a light weapons infantryman and it appears that he passed his General Educational Development (GED) on 14 January 1952 and that he attended a leaders course at Camp Breckinridge, Kentucky from 7 March to 4 May 1952.  He was advanced to the rank of private first class (PFC) on 24 March 1952 and it also appears that he was transferred to Korea for assignment to Company A, 5th Infantry Regiment.  He served in Korea for 10 months and 21 days.

4.  On 4 July 1953, he was honorably REFRAD at Fort Sheridan, Illinois in the rank of PFC and was transferred to the Enlisted Reserve Corps (now known as United States Army Reserve (USAR)) to complete his 8-year statutory service obligation under the Uniform Military Training and Service Act.  He had served 1 year and 9 months of total active service.  He was honorably discharged from the USAR on 4 October 1959.

5.  A review of the available records fails to show any evidence that the applicant was ever promoted to the rank of CPL or that there was any requirement to promote him after completing the leaders course.

DISCUSSION AND CONCLUSIONS:

1.  While the sincerity of the applicant's claim that he was told that he would be promoted after completing the leader's course is not in doubt, there simply is no evidence in the available records to support his claim.

2.  It is also noted that the applicant completed the course before being transferred to Korea, where he served for over 10 months in the rank of PFC, before being returned to the United States for separation.

3.  It is difficult at best, given the fact that his records were destroyed in the 1973 fire at the National Personnel Records Center and the passage of time (57 years) to determine exactly what happened in the applicant's case.

4.  Therefore, absent evidence to show that he was unjustly denied a promotion to the rank of CPL, it must be presumed what the Army did at the time was proper and in accordance with the applicable regulations in effect at the time.

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 this 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 during the Korean War.  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)                                         AR20080018867



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ABCMR Record of Proceedings (cont)                                         AR20080018867



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