IN THE CASE OF:	  

		BOARD DATE:	  30 June 2009

		DOCKET NUMBER:  AR20090001710 


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 the records of his deceased father, a former service member (FSM), be corrected to show the FSM retired in the rank of captain (CPT).

2.  The applicant states, in effect, that the FSM was assigned as the company commander of Company H, 73rd Infantry Regiment and he performed those duties until the date of surrender of all Visayan Mindanao Forces in 1942.  The applicant also states that the FSM retired on 31 January 1948, after 34 years of active service.  However, he was not granted the retired rank of CPT, the highest rank he was able to attain.  

3.  The applicant provides the following documents in support of the application:   Self-Authored Letter; Standard Form 192 (Report of the Death of an American Citizen); Certificate of Naturalization; Certificate Birth; WD AGO Form 53-55 (Enlisted Record and Report of Separation – Honorable Discharge ), dated 
30 April 1942; WD AGO Form 53-98 (Military Record and Report of Separation – Certificate of Service), dated 31 January 1948; DD Form 215 (Correction to the DD Form 214), dated 22 February 2001; Affidavits, dated 29 January 1948 and 
20 August 1963; Certificate (Statement), dated 3 July 1946; Final Statement; Bronze Star Medal Certificate; Purple Heart Certificate; Headquarters, 
Visayan-Mindanao Force in the Field Operations Special Orders Number 26, dated 1 May 1948; Headquarters, 73rd Infantry Regiment Special Orders Number 38, dated 28 April 1942; Certificate of Surrender, dated 27 May 1942; Headquarters, United States Army Forces in the Far East Letter, dated 9 April 1945; 

Department of Army Office of the Adjutant General Letter, dated 8 March 1949; 10th General Hospital Clinical Abstract, dated 29 September 1948; Disposition Board Proceedings for Officers (WD AGO Form 8-118); DD Form 1300 (Report of Casualty), dated 24 October 1966; Adjutant General Office Retirement Pay Letter, dated 24 February 1949; and Army of the United States Appointment Certificate.

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 FSM’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 (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 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 the FSM’s WD AGO Form 53-55, WD AGO Form 53-98, Pay and Allowance Account, United States Forces in the Philippines Special Orders Number 26, dated 1 May 1948, and Special Orders Number 38, dated 
28 April 1942, which were provided by the applicant.

3.  The FSM's WD AGO Form 53-55 shows he served in the Regular Army, in an enlisted status, from 17 December 1938 through 30 April 1942, at which time he was honorably discharged in order to accept a commission.  It further shows he was assigned to Company H, 73rd Infantry (Philippine Scouts) and that he attained the rank of sergeant.  Item 33 (Decorations and Citations), as amended in a DD Form 215 (Correction to DD Form 214) issued on 22 February 2001, shows that during this period of active duty covered by this document, he earned the Purple Heart, Army Good Conduct Medal, American Campaign Medal, American Defense Service Medal with 1 bronze service star, Distinguished Unit Badge with 2 Oak Leaf Clusters, Asiatic-Pacific Theatre Medal with 1 bronze service star, and Philippine Liberation Ribbon with 1 bronze service star.
4.  United States Forces in the Philippines Special Orders Number 26, dated 
1 May 1942, authorized the FSM’s appointment in the an Army of the United States (AUS) as a second lieutenant (2LT) in the Philippine Scouts (PS) under the provisions of Special Order Number 85, dated 15 April 1942.

5.  A WD AGO Form 53-98 issued to the FSM upon his honorable release from active duty (REFRAD) on 31 January 1948, shows the FSM served on active duty in a commissioned officer status for 5 years, 9 months, and 16 days.  Item 3 (AUS Grade) shows he held the rank of 2LT on the date of his REFRAD.  It also shows the FSM served in special 0660 (Truck Officer) and that his organization at the time of his separation was the 52nd Transportation Medium Port.  Item 29 (Decorations and Citations) shows he earned the following awards:  American Defense Service Medal with 1 bronze service star, Philippine Liberation Ribbon with 1 bronze service star, Combat Infantryman Badge, Philippine Independence Ribbon, and World War II Victory Medal.  

6.  United States Forces in the Philippines Special Orders Number 38, dated 
28 April 1942, shows that while holding the rank of 2LT, the FSM was assigned as the commanding officer of Company H, 73rd Infantry Regiment.  

7.  A Certificate of Surrender, dated 27 May 1942, confirms the FSM held the rank of 2LT on the date he was ordered to surrender to Japanese forces, and a Headquarters, United States Army Forces, Far East letter, dated 9 April 1945, shows he held the rank of 2LT when he was returned to military control on 
1 March 1945.  

8.  The applicant provides an Affidavit provided by the Battalion Commander, a lieutenant colonel, of II Corps, a recognized Guerilla organization, dated 
29 January 1948.  This individual states he inducted and commissioned the FSM as a first lieutenant (1LT) on 1 December 1943.  He further states he promoted the FSM to the rank of CPT on 1 August 1944, as the company commander of Camp O and that the FSM was subsequently promoted to major on 1 November 1944.

9.  The applicant provides a Pay and Allowance Account, dated 2 February 1948, which shows the FSM received his final separation payment as a 2LT the rank he held on the date of separation.  


10.  Technical Manual 12-235, in effect at the time, prescribed the policy and procedure for the preparation and distribution of separation documents during the period the applicant served.  It stated, in pertinent part, that the rank held on the date of separation would be entered in Item 3 and that the highest grade held while serving on active duty would be entered in Item 38 of the separation document.  

DISCUSSION AND CONCLUSIONS:

1.  The applicant's contention that the FSM’s record should be corrected to reflect the highest rank he held was captain was carefully considered.  However, there is insufficient evidence to support this claim.

2.  Notwithstanding any rank the FSM may have attained while a member of a Guerilla organization, the available evidence confirms he held the rank of 2LT at the time of his REFRAD, and  that this was the highest rank he attained while a member of the AUS serving on active duty, as specifically evidenced by the FSM’s WD AGO Form 53-98, his final pay document, and all other official orders and certificates on file.  

3.  Absent any evidence that the FSM was recommended for or promoted above the rank of 2LT by proper authority while serving  on active duty in the AUS, it would not be appropriate or serve the interest of all those who served during World War II and who faced similar circumstances.  Therefore, there is an insufficient evidentiary basis to support granting the requested relief.  

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 FSM’s record is in error or unjust.  The applicant has failed to submit evidence that would satisfy this requirement.

5.  The applicant and all others concerned should know that this action in no way diminishes the sacrifices the FSM made in service to our Nation.  The applicant and all Americans should be justifiably proud of the FSM's 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)                                         AR20090001710



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ABCMR Record of Proceedings (cont)                                         AR20090001710



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