IN THE CASE OF:	  

		BOARD DATE:	  31 March 2009

		DOCKET NUMBER:  AR20080019236 


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 his record be corrected to show his separation rank as first lieutenant (1LT).

2.  The applicant states, in effect, he has several documents that show his rank as 1LT and would like his record corrected to show he held that rank upon his separation.  

3.  The applicant provides 1951 and 1954 discharge certificates and a 1954 Headquarters Second Army letter 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 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 complete military record is not available to the Board for review.  A fire destroyed approximately 18 million service members’ records at the National Personnel Records Center (NPRC) in 1973.  It is believed that the FSM's records were lost or destroyed in that fire.  However, there were sufficient documents remaining in a NPRC reconstructed record for the Board to conduct a fair and impartial review of this case.  This case is being considered using reconstructed records that primarily consist of partially legible separation documents from 1945 and 1946, NA Form 13038 (Certification of Military Service), WD Form 384 (Officers' Pay, Allowance, and Mileage Voucher), various other documents remaining in the NPRC file, and the documents provided by the applicant.

3.  The available evidence shows the applicant served on active duty in an enlisted status for 3 years, 5 months and 6 days from 20 December 1941 through 25 May 1945.  The partially legible separation document for this period that remains in the NPRC file shows he held the rank of master sergeant on the date of his separation from this period of active duty service.

4.  A Certification of Military Service and partially legible separation document remaining in the NPRC file show that he served on active duty in an officer status for 1 year, 5 months, and 6 days from 26 May 1945 through 8 October 1946 and that he held the rank of second lieutenant (2LT) on the date of his release from active duty (REFRAD).

5.  The NPRC file also contains the WD Form 384 prepared during his final separation processing which confirms he received his final separation pay in 1946 as a 2LT.  The separation orders on file which were issued at Fort Meade, Maryland, on 27 August 1946 also show his rank as 2LT.

6.  The applicant provides honorable discharge certificates from the Army of the United States, dated 21 March 1951 and 27 December 1954, which list his rank as 1LT.  He also provides a letter issued by Headquarters Second Army, dated 27 December 1954, subject:  Discharge as a Reserve Officer, which lists the applicant's rank as 1LT.

7.  Army Regulation 635-5 (Separation Documents) prescribes the separation documents that must be prepared for Soldiers on retirement, discharge, release from active duty service, or control of the Active Army.  It also establishes standardized policy for preparing and distributing separation documents.

8.  The current version of the separation documents regulation and the version in effect at the time of the applicant's REFRAD in 1946 both provided for entering information that was applicable at the time of separation.  There were and are no provisions that provide for correcting or reissuing a separation document to incorporate accomplishments or achievements completed as a member of the Reserve subsequent to the period of active duty service covered by the original separation document.

DISCUSSION AND CONCLUSIONS:

1.  The applicant's contention that his record should be corrected to show his separation rank as 1LT was carefully considered.  However, there is no evidence that his rank is incorrectly documented on any of his existing active duty or Reserve documents remaining in his NPRC file.

2.  The evidence confirms the applicant held the rank of 2LT on the date of his last separation from active duty on 8 October 1946, as evidenced by an NA Form 13038 and WD Form 384 remaining in the NPRC file.  As a result, it appears the 2LT rank entry on his final active duty separation document accurately documents the rank he held on the date he was REFRAD.  Therefore, there is an insufficient evidentiary basis to support a change to his separation document at this time.

3.  The evidence also shows that the applicant was promoted to 1LT as a Reserve officer subsequent to his REFRAD and that his Reserve officer discharge certificates from 1951 and 1957 accurately reflect this rank.  As a result, there appears to be no error in the rank documented in the remaining active duty and Reserve documents remaining on file in his record.

4.  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:

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.



      __________x_______________
                 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)                                         AR20080019236



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ABCMR Record of Proceedings (cont)                                         AR20080019236



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