IN THE CASE OF:
BOARD DATE: 2 June 2009
DOCKET NUMBER: AR20090002296
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, via an application submitted by his daughter, that his records be corrected to show that he was promoted to the rank of private first class.
2. In the statement submitted by the applicants daughter, she noted that her father entered the United States Army in March 1944, completed training, and was sent to France where he was seriously wounded on 26 September 1945. She noted that his separation document, discharge certificate, and Western Union Telegram all indicated that he was a private, but her father believed he should have received a promotion to private first class.
3. The applicants daughter provided a copy of her fathers WD AGO Form 53-55 (Enlisted Record and Report of Separation), a copy of his honorable discharge certificate, and a copy of the Western Union Telegram notifying his family that he had been wounded.
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 for review. A fire destroyed approximately 18 million service members records at the National Personnel Records Center in 1973. It is believed that the applicants records were lost or destroyed in that fire. However, there were sufficient documents remaining in a reconstructed record to conduct a fair and impartial review of this case.
3. The applicants separation document indicates he was inducted into the Army of the United States and entered active duty on 21 March 1944. He arrived in the European-African-Middle Eastern Theater of Operations on 3 September 1944.
4. The Western Union Telegram, submitted by the applicants daughter, indicates that he was seriously wounded in action as a result of hostile action on 26 September 1944. That telegram indicates the applicant was serving in the rank of private at the time.
5. The applicant returned to the United States in 22 December 1944 and on
26 June 1945 was honorably discharged. Item 3 (Grade) of the applicant's WD AGO Form 53-55 shows he held the rank of private on the date of his separation, and Item 38 (Highest Grade Held) shows that this was the highest grade he held while serving on active duty. The applicant authenticated this document with his signature in Item 56 (Signature of Person Being Separated) on the date of his separation.
6. There are no available orders or other documents showing the applicant was ever recommended for or promoted to a grade higher than private during his active duty tenure.
7. Technical Manual 12-235 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.
DISCUSSION AND CONCLUSIONS:
1. The applicants contention that he should have been promoted during his tenure of service is understandable, unfortunately there is no evidence which indicates the applicant was ever recommended for or promoted above the rank of private.
2. The applicant's military records were not available for review; however, there is a properly constituted separation document on file that confirms he held the rank of private on the date of his separation, and that this was the highest rank he attained while serving on active duty. Absent any evidence indicating the applicant was recommended for or promoted to a grade higher than private by proper authority while serving on active duty, regrettably there is an insufficient evidentiary basis to support granting the requested relief.
3. The applicant and all others concerned should know that this action in no way diminishes the sacrifices he made 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) AR20090002296
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