IN THE CASE OF:	

		BOARD DATE:	  30 April 2009

		DOCKET NUMBER:  AR20080019909 


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 53-55 (Honorable Discharge), with the period ending 2 July 1946, to show he served with the 80th Infantry Division.

2.  The applicant states that his WD AGO Form 53-55 shows his organization as the 1st Infantry Division instead of the 80th Infantry Division.  The applicant states that the error needs to be corrected because he fought with the 80th Infantry Division from the Battle of the Bulge until the end on the World War II.  
  
3.  The applicant provides his WD AGO Form 53-55 and an Army of the United States Honorable Discharge Certificate, dated 2 July 1946.

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 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 applicant’s records were lost or destroyed in that fire.  However, this case is being considered using reconstructed records, which primarily consist of his WD AGO Form 53-55 and a Army of the United States Honorable Discharge Certificate.

3.  The applicant's WD AGO Form 53-55 shows:

	a.  he was inducted and entered active duty on 19 August 1944;

   b.  he arrived in the European Theater of Operations (ETO) on 17 January 1945;

   c.  he fought in the Ardennes-Alsace, Rhineland, and Central Europe Campaigns;

   d.  he was awarded the Good Conduct Medal, European-African-Middle Eastern Campaign Medal, World War II Victory Medal, Army of Occupation Medal with Germany Clasp, Combat Infantryman Badge, and Marksman Marksmanship Qualification Badge with Rifle Bar (M-1);

	e.  he departed the ETO on 17 June 1946;

   f.  he was honorably discharged on 2 July 1946; and

   g.  his organization in Item 6 is listed as "Co I 26th Inf Regt" for Company I, 26th Infantry Regiment (a regiment which was assigned to the 1st Infantry Division).

4  There is no evidence in the available records that shows the applicant was assigned or attached to the 80th Infantry Division, nor has the applicant provided specific information indicating the company and regiment of the 80th Infantry Division to which he was assigned.

5.  Department of the Army Pamphlet 672-1 (Unit Citation and Campaign Participation Credit Register), which list the awards received by units in World War II, shows the following:

	a.  the 1st Infantry Division received campaign participation credit for Tunisia, Sicily, Normandy, Northern France, Rhineland, and Central Europe;

	b.  the 80th Infantry Division received campaign participation credit for Ardennes-Alsace, Northern France, Rhineland, and Central Europe.

	c.  the 26th Infantry Regiment (of the 1st infantry Division) received campaign participation credit for Algeria-French Morocco (with arrowhead) and Ardennes-Alsace, in addition to the campaigns credited to the 1st Infantry Division.

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends that his WD AGO Form 53-55 should be corrected to show he served 80th Infantry Division.  At the time of his discharge, his WD AGO Form 53-55 showed he was assigned to I Company, 26th Infantry Regiment.  However, it does not show a division of assignment, neither  the 1st Infantry Division nor the 80th Infantry Division.

2.  Lacking concrete evidence on which to base a correction, the Board looked at campaign credit received by the applicant, by the 1st Infantry Division, by the 80th Infantry Division, and by the 26th Infantry Regiment.  When viewed only by division of assignment, the applicant’s campaign participation credit fit that of the 80th Division because he and the 80th Division received credit for the Ardennes-Alsace Campaign, and the 1st Infantry Division did not.  However, the applicant’s WD AGO Form 53-55 shows he was assigned to the 26th Infantry Regiment and this subordinate unit of the 1st Infantry Division did receive credit for the Ardennes-Alsace Campaign.  Unfortunately, no conclusion may be drawn which would support the applicant’s request.

3.  The Board does not doubt the applicant’s contention he served with the 80th Infantry Division; however, there must be concrete evidence on which to base a correction to his military records.  The applicant’s records are presumed lost in the 1973 fire and he has failed to provide evidence – such as unit assignment or attachment orders, morning report entries, envelops from letters he may have written home, etc. – to substantiate his request.  Without such evidence, the Board must presume administrative regularity, that is what the Army did in his case is correct.

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.


5.  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 our Nation.  The applicant and all Americans should be justifiably proud of his service in arms.

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)                                         AR20080019909





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ABCMR Record of Proceedings (cont)                                         AR20080019909



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