IN THE CASE OF:	  

		BOARD DATE:	  13 August 2009

		DOCKET NUMBER:  AR20090003316 


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 (Enlisted Record and Report of Separation - Honorable Discharge) with the period ending 22 June 1945 by showing his rank as staff sergeant (S/Sgt, Grade 3).

2.  The applicant states that his Army Separation Qualification Record shows that he was “upgraded” to the rank of S/Sgt and that he supervised a squad of riflemen in combat, an assignment which a sergeant (Sgt, Grade 4) would not have been given.  He further states that he actually wore the rank of technical sergeant (T/Sgt, Grade 2) and first lieutenant (1st Lt, or O-2) on the battlefield.  The applicant states that he earned the rank and was paid as a S/Sgt when he returned to the United States.

3.  The applicant indicates that he enclosed an Army Separation Qualification Record; however, the document is not available.

4.  The applicant provides his WD AGO Form 53-55; numerous medical treatment records, with dates from November 1944 through June 1945; a Purple Heart Certificate; a Bronze Star Medal Certificate; a Certificate of Military Service, with the period ending 22 June 1945; a DD Form 215 (Correction to DD Form 214, Certificate of Release or Discharge from Active Duty), dated 7 November 2008; and a Veterans Affairs Form 21-4138 (Statement of Support), dated 5 January 2009. 


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, with the period ending 22 June 1945, his medical treatment records, and a WD AGO Form 371 (Final Payment Roll), dated 23 June 1945.

3.  The applicant's WD AGO Form 53-55 shows he was inducted on 5 March 1943 and entered active duty on 12 March 1943.  The applicant arrived in the European Theater of Operations and was assigned to A Company, 137th Infantry on 29 June 1944.  On 12 November 1944, he was wounded in combat and entered the Army medical system.  The applicant departed the European Theater of Operations on 13 December 1945. He was eventually assigned to the Detachment of Patients, U.S. Army Hospital, Camp Pickett, Virginia.

4.  The applicant provided numerous medical treatment records, with dates from November 1944 through June 1945; that show his rank as S/Sgt.

5.  The applicant was honorably discharged with a certificate of disability on 22 June 1945.  Item 3 (Grade) of his WD AGO Form 53-55, with the period ending 22 June 1945 shows the entry "Sgt."  Item 38 (Highest Grade Held) shows the highest grade held by the applicant was Sgt.

6.  The applicant's Certificate of Military Service, created on 30 June 2005 for the period ending 22 June 1945, shows his rank as Sgt.


7.  A WD Form 371 (Final Payment Roll), dated 23 June 1945, shows the following:

SERGEANT

Trfd [Transferred] in gr[ade] fr[om] DOP [Detachment of Patients] Oliver GH [General Hospital] Augusta Ga to Pats [Patients] Det[achment] 1318th SCU [Service Command Unit] Conv[alesence] Hosp[ital] Cp [Camp] Pickett Va 10 Mar 45. . . .Due US [United States Government] Diff[erence] in pay of Sgt w/FSP [Foreign Service Pay] and pay as S/Sgt w/FSP fr 1 Oct 44 to 22 Dec 44 incl[usive] & diff in pay of Sgt w/o FSP & pay of S/Sgt w/o FSP fr 23 Dec 44 to 28 Feb 45 incl.  Sol[dier] erron[eously] pd [paid] as S/Sgt for mos [months] of Oct 44; Nov 44; Dec 44; Jan 45; & Feb 45.

In effect, the US Government collected back the difference between his pay as a S/Sgt and the pay of a Sgt with and without Foreign Service Pay because he was not entitled to the higher pay rate as he was actually a Sgt, not a S/Sgt.  The higher pay was an error.

8.  There are no orders available that show the applicant was ever promoted to the rank of S/Sgt.

DISCUSSION AND CONCLUSIONS:

1. The applicant contends that his rank on his WD AGO Form 53-55 should be corrected to show the rank of S/Sgt.  The medical treatment records he provided show his rank as S/Sgt.  The Board does not dispute that the applicant wore the rank and performed the duties as a S/Sgt in combat.  However, there are no orders that show he was actually promoted to the rank of S/Sgt.  Many times the exigencies of war dictated that Soldiers had to fill in and perform the duties of the next high rank or position.  For example, a squad leader may have had to perform the duties of a platoon sergeant.  Commanders would often authorize the wearing of a higher rank insignia without actually promoting the Soldier to the higher rank.  Such Soldiers were commonly known as “Acting” Corporals, Sergeants, Staff Sergeants, etc.

2.  The applicant's WD AGO Form 53-55 and his Certificate of Military Service both show that he was discharged at the rank of Sgt.  Furthermore, his 
WD AGO Form 371 indicates he owed the U.S. Government the difference in pay between Sgt and S/Sgt when he received his final pay because he had been 

erroneously paid as a S/Sgt for the several months from October 1944 through February 1945.  Pay records, in the absence of personnel records, are often the best available source of information concerning a Soldier’s rank.

3.  It appears that the Army found the applicant was not officially promoted to S/Sgt and made the adjustment to his pay before his discharge.  Regrettably, lacking evidence confirming that the applicant was promoted to S/Sgt, there is insufficient evidence to correct his WD AGO Form 53-55 to show his rank as S/Sgt.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

___X___  ___X____  ___X____  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

1.  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.

2.  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.  He is a combat infantryman; he holds the Purple Heart, the Bronze Star Medal, and the Combat Infantryman Badge.  The applicant served his country honorably and well; he is a true American hero.



      _______ _   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)                                         AR20090003316





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ABCMR Record of Proceedings (cont)                                         AR20090003316



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