BOARD DATE:	  17 September 2009

		DOCKET NUMBER:  AR20090007137 


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, as the wife of the former service member (FSM), requests correction of her husband's DA Form 52-2 (Statement of Casualty), dated 
9 September 1966, to show the rank/grade of chief warrant officer three (CW3)/W-3. 

2.  The applicant states, in effect, that the FSM held the rank of CW3 when he died while on a mission.  She further states the DA Form 52-2 incorrectly lists the FSM's rank/grade as warrant officer one (WO1)/W-1.

3.  The applicant continues that she has been trying to correct the FSM's rank to CW3 for 43 years without success.  The applicant states that she recently received a corrected identification card (ID) from the Defense Enrollment Eligibility Reporting System (DEERS) that shows the FSM's correct rank as CW3. The applicant states she has a DA Form 52-2 and a certificate of service that shows the FSM's rank was CW3.  The FSM also wrote her a letter telling her of his promotion to CW3.

4.  The applicant provides, in support of her application:

	a.  a copy of the FSM's two DD Forms 214 for the periods ending 25 February 1965 and 23 May 1966;

	b.  a copy of the FSM's DA Form 24 (Service Record) covering his enlisted service;

	c.  a copy of the FSM's DA Form 20 (Enlisted Qualification Record) that he reviewed on 23 August 1965;

	d.  a copy of the FSM's DA Form 66 (Officer Qualification Record) that he audited on 24 May 1966;

	e.  a copy of the FSM's DA Form 52-2, dated 9 September 1966;

	f.  a copy of the FSM's Army of the United States Honorable Service Certificate, dated 27 August 1966;

	g.  a copy of the FSM's DD Form 1300 (Report of Casualty), dated 10 October 1966; and 

	h.  a copy of the applicant's United States Uniformed Services ID Card, with an expiration date of 31 July 2010.
	
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 had prior enlisted service in the Regular Army (RA); his enlisted service number was RA 13 ___ ___.  On 24 May 1966, the FSM accepted an appointment as a Reserve Warrant Officer of the Army at the rank/grade of WO1/W-1, Aviation, upon graduation from the Warrant Officer Candidate Course. His service number as warrant officer was W3 ___ ___.

3.  Item 12 (Appointments) of the FSM's DA Form 66, audited on 24 May 1966 shows his rank/grade as WO/W-1 and his date of appointment and rank as
24 May 1966.

4.  The FSM arrived in the Republic of Vietnam and he was assigned to 
A Company, 501st Assault Helicopter on 24 June 1966.  
5.  A DA Form 52-2, dated 9 September 1966 shows that the FSM died from severe burns as the pilot of an UH-1B utility helicopter that crashed and burned 
while on a mission.  Item 1 (Service Identification) of this form shows the FSM's service number as W3 ___ ___ and his grade or rate as warrant officer.  Item 5 (Social Security Number, Pay Grade, Length of Service for Pay, Basic Pay, Incentive Pay) show the FSM's pay grade as W-1.

6.  A DA Form 2173 (Statement of Medical Examination and Duty Status) dated 
3 September 1966 shows the FSM's service number as W 3______ and his rank/grade as WO/W-1.

7.  Headquarters, 1st Aviation Brigade, General Orders Number 324, dated 
16 September 1966, shows that the FSM was awarded the Bronze Star Medal (Posthumously) for meritorious service in connection with military operations against a hostile force.  His service number is shown as W3______ and his rank/grade shows as Warrant Officer/W-1.

8.  Headquarters, 1st Aviation Brigade, General Orders Number 986, dated 
22 March 1967, shows that the FSM was awarded the Air Medal for meritorious achievement while participating in aerial flight.  His rank and grade is shown as Warrant Officer/W-1.

9.  There are no orders in the FSMs service personnel records promoting him to CW3/W-3 while he was on active duty.

10.  A U.S. Army Honorable Service Certificate shows that the FSM died while in service of his country.  The standard name line on the certificate shows the FSM's rank as "warrant officer" and his service number as W3 ___ ___.

11. The applicant provided a U.S. Uniformed Services ID card, with an expiration date of 31 July 2010 that shows the sponsor's rank/grade as CW3/W-3.

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends that a mistake was made on the FSM's DA Form 
52-2 and his rank should be changed from WO1 to CW3.  Evidence of record shows that the FSM was appointed to the rank/grade of WO1/W-1 on 24 May 1966.  The applicant provided a United States Uniformed Services ID Card that 
shows the sponsor's rank and grade as CW3/W-3.  However, the ID card alone is insufficient evidence to verify that the applicant was promoted to the rank of CW3/W-3 prior to his death.  
2.  All documents contained in the FSM's available records show his rank/grade as warrant officer/W-1.  The applicant has not provided any evidence or supporting documents to show the FSM was promoted prior to his death.

3.  It appears that the applicant may have inadvertently thought the first two characters (W3) of the FSM's service number meant that he held the rank of CW3.  However, the available documents clearly show that the FSM's grade was W-1 at the time of his death.  It is also unclear what documentation was used by the ID card issuing facility to support issuing the applicant an ID card that shows the FSM's rank/grade as CW3/W-3.  Unfortunately, there is no evidence in the FSM's records and the applicant has not provided evidence (i.e., leave and earnings statement, promotion orders, etc.) to substantiate her contention.  Therefore, there is no basis for granting the applicant's requested relief.

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 FSM in service to our Nation.  The applicant and all Americans should be justifiably proud of the FSM's 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)                                         AR20090007137



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ABCMR Record of Proceedings (cont)                                         AR20090007137



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