IN THE CASE OF:
BOARD DATE: 28 APRIL 2009
DOCKET NUMBER: AR20090001072
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 show that he was discharged in the rank of staff sergeant/pay grade E-6.
2. The applicant states that his records are in error because he was a staff sergeant as evidenced by the documents that he submits in support of his application.
3. The applicant provides in support of his application a copy of his Honorable Discharge Certificate, dated 15 February 1946; a copy of his WD AGO Form
53-55 (Enlisted Record and Report of Separation); a copy of a notification for Appointment of Special Investigator, dated 3 November 1945; a copy of a Duty Roster, dated 17 November 1945; and an Oregon Department of Veterans Affairs transmittal letter, dated 4 December 2008.
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. This case is being considered using the documents submitted by the applicant and a copy of his Final Payment-Work Sheet.
3. On 1 April 1943, the applicant was inducted into the Army of the United States in Camden, New Jersey. He was awarded military occupational specialty (MOS) 405 (Chaplains Assistant).
4. The notification that the applicant submitted in support of his application shows that on 3 November 1945, the applicant was appointed Special Investigator for the Office of the Provost Marshal until 1 January 1946, unless sooner rescinded. In the notification the applicant was referred to as staff sergeant and the notification was signed by the Cavalry Provost Marshal.
5. The Duty Roster, dated 17 November 1945, that the applicant provided shows he was referred to as the provost sergeant and his rank is reflected as staff sergeant. The Duty Roster was signed by his first sergeant.
6. A review of the applicant's Final Payment-Work Sheet shows that, on 15 February 1946, he was being paid in the rank and pay grade of technician fifth grade.
7. The applicant was honorably discharged on 15 February 1946, under the provisions of Army Regulation 615-365, for the convenience of the government due to demobilization. The WD AGO Form 53-55 that he was furnished at the time of his discharge shows his grade as technician fifth grade and his Honorable Discharge Certificate shows his grade as technician fifth grade.
8. A review of the enlisted grade structure shows that from 1 September 1942 and prior to 1 August 1948, a staff sergeant was a grade 3 and a technician fifth grade was a grade 5.
DISCUSSION AND CONCLUSIONS:
1. The applicant contends that his records are in error as he was a staff sergeant at the time of his discharge.
2. His contentions have been considered. The documents that he submitted in support of his application have also been considered. However, the documents are not sufficient to support his request.
3. While the applicant may have served in the rank of staff sergeant at some point while he was in the Army, his Final Payment-Work Sheet shows that at the time of his discharge he was serving in grade 5 and his rank was technician fifth grade. His WD AGO Form 53-55 and his Honorable Discharge were properly prepared to reflect the grade and rank in which he was serving at the time of discharge.
4. In order to justify correction of a military record the applicant must show, 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. In view of the foregoing, there is no basis for granting the applicant's request.
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.
_______ _ 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) AR20090001072
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ABCMR Record of Proceedings (cont) AR20090001072
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