IN THE CASE OF:	  

		BOARD DATE: 	        16 July 2009

		DOCKET NUMBER:  AR20090004565 


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) to remove his lost time and reinstate his rank to that of sergeant and/or acting staff sergeant.

2.  The applicant states, in effect, that in his opinion and the opinion of others, the Provost Marshal showed very poor judgment in his decision to reduce him to a private.  He adds that he was told that only his company commander could reduce him.  He also adds that when the President requested Congress to pass a law that allowed members to rejoin the military, not many people knew of this law.  He drove to Fort Dix, NJ to rejoin the Army, but he refused to rejoin as a private, he insisted on receiving his rank of sergeant.  A few days later he drove home.  He further states that as the author of a book, he has enclosed some pages of this book that prove he was broken for being absent without leave (AWOL) from the hospital because he did not want to go to the replacement center.

3.  The applicant provides an undated self-authored letter; copies of two letters, dated 15 July 1992 and 21 April 1994, from the U.S. Army Reserve Personnel Center, St. Louis, MO; a copy of a letter, dated 21 July 1992, addressed to the Army Board for Correction of Military Records (ABCMR); extracts of a book titled “Soldier’s Story” by General Omar N. Bradley; extracts of a self-authored book titled “Greetings from the President”; and a copy of a letter, dated 20 October 1985, from his former platoon leader and currently retired colonel.


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, there were sufficient documents remaining in a reconstructed record for the Board to conduct a fair and impartial review of this case.

3.  The applicant's WD AGO Form 53-55 shows he was inducted into the Army of the United States on 2 April 1943 and he entered active duty in New York, NY, on 9 April 1943.  His WD AGO Form 53-55 also shows that at the time of separation, the applicant held military occupational specialty 745 (Rifleman) and he was assigned to Company C, 30th Infantry Regiment. 

4.  The applicant's WD AGO Form 53-55 shows he departed the United States on 4 October 1943 and arrived in the European-African-Middle Eastern Theater of Operation (EAMETO) on 15 October 1943.  He then departed the EAMETO on 6 April 1945 and arrived in the United States on 16 April 1945.

5.  The applicant's WD AGO Form 53-55 shows he completed 1 year, 4 months, and 14 days of continental service and 1 year, 6 months, and 13 days of foreign service. 

6.  The applicant's WD AGO Form 53-55 shows he was honorably separated on 28 February 1946.  Item 3 (Grade) of this form shows his grade at the time of separation was private first class (PFC) and item 38 (Highest Grade Held) of this form shows the highest grade he held during his military service was PFC. 

7.  Item 55 (Remarks) of the applicant's WD AGO Form 53-55 shows he had 4 days of lost time under the Articles of War.
8.  The applicant’s WD AGO Form 100 (Separation Qualification Record), dated 28 February 1946, shows he held the grade of private for a period of 4 months during basic combat training and the grade of PFC for a period of 22 months during the remainder of his service.  Additionally, this form shows his grade at the time of separation was that of a PFC.

9.  The applicant’s reconstructed record contains a copy of his Honorable Discharge Certificate that shows his rank at the time of discharge was that of PFC.

10.  In his, undated, self-authored letter, the applicant states that he was demoted to PFC and feels this action was not justified.  He was sent to the hospital at the time, which was 60 miles away from his unit.   He attempted to get back to his unit, but after getting half way there he was picked up by military police.  As far as strength of character, leadership, and integrity goes, he was put in charge twice (at the time as a private) by the company commander who felt that he (the applicant) would be the best one to move the company if that company were to go to the line at a moment’s notice while the commander was away.  He adds that two company morning reports, dated 21 October 1944 and 12 December 1944, list his name.  The October report shows him as a “sergeant Code A” and the December report shows him as a “PFC Code T.”  He is unsure what these codes mean; however, all he knows is that he was in charge for four days while the company commander was away.  He took his responsibility proudly and did what was best for his men who all respected him and missed him when he was wounded by a mine.  He was a good Soldier and always asked to be a sergeant, staff sergeant, and even a technical sergeant.  He was also requested to accept a battlefield commission by his company commander who received the Medal of Honor the same day he and the applicant went to the hospital.  He concludes that it hurts him to be demoted to private by an officer who did not understand what he did was wrong and appeals to this Board to restore his rank to that of staff sergeant.   

11.  The applicant submitted extracts of a book titled “Soldier’s Story” by General Omar N. Bradley, which essentially describes how the war in the European theater was fought and why it was fought that way; and extracts of a self-authored book titled “Greetings from the President”; which essentially chronicles the applicant’s memoirs of the war when Allied Forces invaded France and his role as a rifleman in C Company, 1st Battalion, 30th Regiment, 3rd Infantry Division.




12.  War Department Technical Manual 12-236 (Preparation of Separation Forms) provides that the appropriate separation form will be prepared for all enlisted personnel separated from the service by reason of discharge, retirement, or release from active duty or transfer to a Reserve Component.  This manual states that item 3 shows the grade held by the enlisted member at the time of separation and item 38 shows the highest grade held by the enlisted member during current period of active duty.  Additionally, item 55 is used for completion of entries specified in War Department Directives.  For time lost under Article of War 107, only the total number of days is shown; inclusive dates are not required.

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends that his WD AGO Form 53-55 should be corrected by removing his lost time and reinstating his rank as that of sergeant/and or acting staff sergeant.  

2.  With respect to the applicant's rank, the applicant's sincerity, integrity, and strength of character are not in question.  However, there is insufficient evidence to support granting his request.  The applicant’s reconstructed records show he held the rank of PVT for a period of 4 months during basic training and the rank of PFC for the remainder of his military service.  The applicant may have performed duties as an acting sergeant for a specific period of time or function; however, there is no indication or evidence that he was promoted and/or appointed to the rank of SGT or that he held a higher grade than that shown on his WD AGO Form 53-55.  Absent evidence to the contrary, the entries in item
3 and item 38 of his WD AGO Form 53-55 appear to be correct.

3.  With respect to the applicant's lost time, the applicant’s reconstructed record is void of the facts and circumstances that led to the period of lost time shown on his WD AGO Form 53-55.  However, by the applicant’s own admission, he left the hospital and was picked up by military police.  It appears that for a period of 
4 days, his chain of command did not know his whereabouts and reported him in an AWOL status.  Absent evidence to the contrary, it must be presumed that the entry on the applicant’s WD AGO Form 53-55 is correct.

4.  The code "T" that is associated with his rank stands for a temporary appointment/promotion to a specific rank, a code of "P" stands for a permanent appointment/promotion, and a code of "A" stands for an acting rank/grade.




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.




      _______ _ 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)                                         AR20090004320



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ABCMR Record of Proceedings (cont)                                         AR20090004565



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