BOARD DATE: 27 October 2009
DOCKET NUMBER: AR20090014316
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, correction of his WD AGO Form 53-55 (Enlisted Record and Report of Separation Honorable Discharge) to show the rank/grade of staff sergeant (SSG)/E-6 instead of private first class (PFC)/E-3.
2. The applicant states, in effect, that he was a staff sergeant at the time of his separation from the Army and he would like his WD AGO Form 53-55 corrected to show this rank.
3. The applicant provides a copy of his WD AGO Form 53-55 and a Form 55a (Clinical Record Brief) in support of his 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 applicant's entire military record is not available to the Board for review. A fire destroyed approximately 18 million service members records at the National Personnel Records Center (NPRC) in 1973. It is believed that a majority of the applicant's records were lost or destroyed in that fire. However, there were sufficient documents on file for the Board to conduct a fair and impartial review of this case. This case is being considered using the applicant's WD AGO 53-55 and several medical and dental documents for the period between 30 March 1943 and 25 November 1945 contained in his reconstructed record.
3. The applicant enlisted in the Regular Army on 14 November 1940. His WD AGO Form 53-55 for the period ending 20 December 1945 that he provided shows in item 3 (Grade) the entry PFC. Item 38 (Highest Grade Held) of the same document shows that the highest grade he attained during his tenure in the Army was PFC.
4. The applicant provided a Form 55A which shows that on 17 March 1943 he was admitted into the hospital and the grade reflected on this document is staff sergeant.
5. The applicant's reconstructed records contain several medical and dental documents which reflect his rank as either PFC or SSG. The most recent document, dated 25 November 1945, shows his rank as PFC.
6. The applicant's available records contain no orders which show that he was ever promoted to the rank of SSG or to any other rank above PFC.
7. Army Regulation 15-185 (Army Board for Correction of Military Records) prescribes the policies and procedures for correction of military records by the Secretary of the Army, acting through the ABCMR. The regulation provides that the ABCMR begins its consideration of each case with the presumption of administrative regularity. The applicant has the burden of proving an error or injustice by a preponderance of the evidence.
DISCUSSION AND CONCLUSIONS:
1. The applicant's contention that his WD AGO Form 53-55 should be corrected to show the rank of staff sergeant instead of private first class was carefully considered.
2. The clinical record brief provided by the applicant and the medical and dental documents contained in his reconstructed record differ in regard to the rank he held during his tenure in the Army. However, the medical document prepared
less than 30 days before the applicant separated from the Army shows the rank of private first class. There is a possibility that he was an acting (rather than having been promoted to) staff sergeant. However, although the sincerity of the applicant's contention that he held the rank of staff sergeant when he separated from the Army is not in question, there is an insufficient evidentiary basis to grant the requested relief and administrative regularity must be presumed in this case.
3. In order to justify correction of a military record the applicant must, or it must otherwise satisfactorily appear, that the record is in error or unjust. The applicant has failed to submit evidence that would satisfy that requirement.
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.
ABCMR Record of Proceedings (cont) AR20090014316
3
ARMY BOARD FOR CORRECTION OF MILITARY RECORDS
RECORD OF PROCEEDINGS
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