IN THE CASE OF:
BOARD DATE: 12 January 2010
DOCKET NUMBER: AR20090010706
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, in effect, that the record of her deceased husband, a former service member (FSM), be corrected to show his rank at discharge as technician five (TEC 5).
2. The applicant states, in effect, the FSM was reduced to private first class for being unable to perform his duties and was later granted service connection for multiple sclerosis (MS), which was the underlying reason for the FSM's reduction.
3. The applicant provides the FSM's WD AGO Form 53-55 (Enlisted Report of Separation - Honorable Discharge), death certificate, recreational orders, and Board of Veterans Appeals packet 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 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 FSM's record shows he was inducted into the Army and entered active duty on 12 December 1941. His WD AGO Form 53-55 shows he served in the European theater of operations from 12 July 1942 through 27 August 1945, and that he participated in the Algerian-French Moroccan, Tunisian, Sicilian, Naples-Foggia, and Rome-Arno campaigns of World War II. It also shows he earned the following awards during his active duty tenure: the European-African-Middle Eastern Campaign Medal with one silver service star, six overseas service bars, one service stripe, and the Army Good Conduct Medal.
3. The FSM's WD AGO Form 24 (Service Record) shows he was promoted to TEC 5 on 12 September 1942, reduced to private (PVT) without prejudice at his own request on 10 February 1945, and advanced back to private first class (PFC) on 2 April 1945.
4. On 17 September 1945, the FSM was honorably discharged in the rank of PFC by reason of convenience of the government. The WD AGO Form 53-55 he was issued at the time shows he completed a total of 3 years, 9 months, and 6 days of active military service and item 38 (Highest Grade Held) shows the highest grade he held while serving on active duty was TEC 5.
5. The applicant provides a Board of Veterans Appeals packet on the FSM, dated 12 May 1964. The findings of fact contained in this document indicate the FSM did not demonstrate any manifestations of MS in service and that his separation medical examination in September 1945 was negative for pertinent abnormality.
DISCUSSION AND CONCLUSIONS:
1. The applicant's contention that the FSM's record should be corrected to show he held the rank of TEC 5 on the date of his discharge because the underlying reason for his reduction was that he was unable to perform his duties due to MS was carefully considered. However, there is insufficient evidence to support this claim.
2. The evidence of record confirms the FSM was reduced from TEC 5 to PVT without prejudice at his own request on 10 February 1945 and that he was advanced to PFC, which is the grade he held upon his discharge, on 2 April 1945. There is no indication that the FSM's reduction from TEC 5 to PVT was based on his suffering from MS, or that he suffered from MS or any other disabling condition prior to his discharge on 17 September 1945. As a result, it would not be appropriate or serve the interest of all those who served during World War II and who faced similar circumstances to grant the requested relief in this case.
3. The applicant and all others concerned should know this action related to the FSM's rank at discharge in no way diminishes the sacrifices made by him in service to our Nation. The applicant and all Americans should be justifiably proud of the FSM's 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.
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