IN THE CASE OF:	  

		BOARD DATE:	  18 August 2009

		DOCKET NUMBER:  AR20090004929 


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, the daughter of the former service member (FSM), requests correction of the rank shown on the FSM’s Certification of Military Service.

2.  The applicant states, in effect, the FSM passed away on 23 November 2008 and she would like to put the correct rank on the FSM’s headstone.  She adds the Certification of Military Service that was issued shows the FSM’s rank as corporal (CPL); however, the FSM retired in the rank of major (MAJ).

3.  The applicant provides a State of New Jersey Burlington County Surrogate’s Court, Certification of Administrator, dated 29 April 2009; Durable Power of Attorney for [FSM], dated 4 May 2002; Superior Court of New Jersey Judgment for Change of Name, dated 11 March 2005; letter from Doctor Paul S____, D.O., undated; her father's 1999 Certificate of Death; her mother's 2008 Certificate of Death; Headquarters, 54th Engineer Battalion (Combat), Letter Order 3-20, dated 19 March 1957; Standard Form 1044 (Schedule of Collections) for the period 1-30 April 1957; DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge) with an effective date of 31 August 1957; Office of the Adjutant General, Washington, DC, letter, dated 19 September 1957, subject:  Promotion as a Reserve Commissioned Officer of the Army under the Reserve Officer Personnel Action of 1954; Office of the Adjutant General, Reserve Components Personnel and Administration Center, St. Louis, MO, letter, dated November 1978; DD Form 2 (Retired), U.S. Uniformed Services Identification Card issued on 14 March 1995; Retiree Account Statement, dated 2 January 2008; National Personnel Records Center (NPRC) Military Personnel Records (MPR), St. Louis, MO, letter, dated 23 October 2008; and NA Form 13038 (Certification of Military Service), issued on 21 October 2008, in support of the application.

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 was inducted in an enlisted status into the U.S. Army on 22 October 1942 and was honorably discharged in the rank of CPL/pay grade E-3 on 25 May 1943 to accept appointment as a commissioned officer.

3.  The FSM was appointed as a commissioned officer in the U.S. Army in the rank of second lieutenant/pay grade O-1 and entered active duty on 26 May 1943.  He was promoted to the rank of captain (CPT)/pay grade O-3 on 17 October 1950.

4.  The FSM’s DD Form 214 shows he entered active duty for this period on 26 May 1943, was honorably released from active duty in the rank of CPT on 31 August 1957, and was transferred to the U.S. Army Reserve (USAR), New York Military District.  At the time he had completed 14 years, 3 months, and 5 days of net active service this period, and 7 months and 3 days of other service.

5.  Office of the Adjutant General, Washington, DC, letter, dated 19 September 1957, shows the FSM was promoted to the rank of MAJ/pay grade O-4 effective 16 October 1957.

6.  Office of the Adjutant General, U.S. Army Administration Center, St. Louis, MO, Letter Order USAR 03-139666, dated 26 March 1968, shows the FSM was removed from an active USAR status and transferred to the USAR Control Group (Retired) in the rank of MAJ effective 26 March 1968.

7.  Office of the Adjutant General, U.S. Army Reserve Components Personnel and Administration Center, St. Louis, MO, Orders 46,688, dated 4 June 1980, shows the FSM was retired and placed on the Army of the United States Retired List in the rank of MAJ effective 8 August 1980.

8.  In support of the application, the applicant provides the following documents:

	a.  a State of New Jersey Burlington County Surrogates Court, Certification of Administrator, dated 29 April 2009; Durable Power of Attorney for [FSM], dated 4 May 2002; Superior Court of New Jersey Judgment for Change of Name, dated 11 March 2005; letter from Doctor Paul S____, D.O., undated; and two New Jersey Department of Health and Senior Services Certificates of Death issued on 30 December 1999 and 2 December 2008.  These documents, in pertinent part, establish the applicant as the next of kin authorized to act on behalf of the FSM in this application;

	b.  Headquarters, 54th Engineer Battalion (Combat), Letter Order 3-20, dated 19 March 1957, and a Schedule of Collections, dated 5 April 1957, that show the FSM performed temporary duty at Bremerhaven, Germany, in April 1957 and his rank at that time was CPT;

	c.  an Office of the Adjutant General, Reserve Components Personnel and Administration Center, St. Louis, MO, letter, dated November 1978, that shows the FSM was notified of expanded eligibility requirements for coverage under the Survivor Benefit Plan and, in pertinent part, the FSM was addressed as MAJ;

	d.  a copy of the FSM’s U.S. Uniformed Services Identification Card (Retired) issued on 14 March 1995 that shows his rank was MAJ;

	e.  a Retiree Account Statement, dated 2 January 2008, that shows the FSM was receiving retired pay and his rank was "MAJ"; and

   f.  an NPRC MPR, St. Louis, MO, letter, dated 23 October 2008, along with the Certification of Military Service that the NPRC MPR issued on 21 October 2008 that documents the FSM’s enlisted service in the Army of the United States from 23 October 1942 to 25 May 1943 and that the highest rank he held was CPL.

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends, in effect, that a Certification of Military Service should be issued to show the FSM held the rank of MAJ.

2.  The NPRC MPR issued a Certification of Military Service that documents the FSM’s enlisted service in the Army of the United States from 23 October 1942 to 25 May 1943 and that he was honorably discharged in the rank of CPL.

3.  A DD Form 214 was issued that documents the FSM’s active duty service from 26 May 1943 to 31 August 1957 and that he was honorably released from active duty in the rank of CPT.

4.  The FSM transferred to the USAR on 1 September 1957, was promoted to the rank of MAJ effective 16 October 1957, and transferred to the USAR Control Group (Retired) in the rank of MAJ effective 26 March 1968.  However, there is no single official military document that captures this period of the FSM’s military service.  Therefore, considering the facts of this case, it is concluded that an appropriate document should be issued to document this period of the FSM’s military service and his rank at the time of transfer to the Retired Reserve.

BOARD VOTE:

___X___  ___X____  ___X____  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

The Board determined that the evidence presented was sufficient to warrant a recommendation for relief.  As a result, the Board recommends that all Department of the Army records of the individual concerned be corrected by issuing an appropriate document to show the FSM served as a member of the U.S. Army Reserve from 1 September 1957 to 25 March 1968, his service was terminated by honorable transfer to the Retired Reserve on 26 March 1968, and his last rank/grade was MAJ/O-4.



      __________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)                                         AR20090004929



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ABCMR Record of Proceedings (cont)                                         AR20090004929



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