IN THE CASE OF:	  

		BOARD DATE:	  22 October 2009

		DOCKET NUMBER:  AR20090015053 


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 and his elected representatives request that the applicant's brother's military records be corrected in one of the following manners:

	a.  showing he was given a dishonorable discharge; 

	b.  rescinding his court-martial sentence;

	c.  releasing him from service with whatever kind of discharge is deemed appropriate;

	d.  changing his absent without leave (AWOL) status and showing that he was presumed dead; or

	e.  changing his AWOL status and showing he was missing in action (MIA).

2.  The applicant states that his brother was sentenced to a dishonorable discharge but his discharge was suspended to allow him to serve in combat.  While assigned to an infantry unit in Germany during World War II, his brother was declared AWOL on the very day his unit was engaged in heavy combat, a battle which resulted in 13 men in MIA status.  The applicant believes that his brother died in that battle and that he was improperly listed as AWOL.  

3.  The applicant states that he also fought in the European Theater of Operations (ETO) and his parents asked him to check on his brother when he 
(brother) stopped writing to them.  After Germany surrendered, the applicant was given permission to look for his brother.  He was told by his brother's unit commander that the unit had more than a 100 percent turnover due to casualties. The applicant finally located the unit clerk who remembered the applicant's brother.  The clerk stated that after an attack on the fortifications at Aachen, Germany, the applicant's brother was one of the Soldiers missing.  

4.  The applicant adds that his brother was classified as AWOL on a date which was later changed when the applicant's mother showed the Federal Bureau of Investigation (FBI) letters from the applicant's brother postmarked after he was declared AWOL.  The applicant contends that this fact, along with the fact that the company clerk knew nothing about his brother other than that he was missing after the attack on Aachen, Germany, leads him to believe that his brother was killed in action during that battle and his records should reflect that he died at that time.

5.  The applicant chronicles the unsuccessful attempts his family made to bring closure to his brother's case, and states that the family cannot have any legal closure without a certificate of death issued by the Army.

6.  The applicant provides correspondence from his elected representatives; correspondence from the National Personnel Records Center (NPRC); an After Action Report for the 38th Infantry Regiment; a report of casualties for the 38th Infantry Regiment; and a letter from the FBI, dated 11 June 2008, which states that they have no records on the applicant's brother.

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 brother's military records were totally lost or destroyed in the National Personnel Records Center fire of 1973.  There are no available military records on the applicant's brother.  The information contained in these proceedings was derived from the documents provided by the applicant.

3.  In a letter from the NPRC, dated 4 August 1994, it was stated "We have conducted a search of alternate records sources and determined that on April 3, 1945, [the applicant's brother] was transferred from Headquarters, 1306th Engineer GS Regiment, to Company A, 2nd Infantry Regiment, located in Iserlohn, Germany.  He subsequently went AWOL from that unit on April 23, 1945.  On November 23, 1948, the Department of the Army informed the Veterans Administration (VA), that 'no report of his return to military control from this AWOL has been received.'  This information was again verified to the VA on October 30, 1956.  Alternate sources also indicate that [the applicant's brother] was tried for violation of the 58th Article of War, as having absented himself without leave from August 1, 1944 to September 22, 1944, and was sentenced to be dishonorably discharged, to forfeit all pay and allowances due or to become due, and to be confined at hard labor for ten years.  The sentence was suspended to afford combat service, and [the applicant's brother] was restored to duty."

4.  In World War II the unit to which the applicant's brother was assigned in October 1944, the 2nd Infantry Regiment, fought as part of the Fifth Infantry Division in Patton's famous Third Army, leading the way in the breakout from the beaches of Normandy in operation Cobra.  The unit spearheaded the attack into (former) Czechoslovakia and was located near the town of Voltray when the word came to cease all forward movement at 0831 hours on 7 May 1945. (GLOBALSECURITY.ORG)

5.  The actual attack on Aachen, Germany occurred from 13 to 21 October 1944.  Because of continued efforts to stave off German counterattacks and to close the encirclement of Aachen, the 1st Infantry Division could only afford to give the task of taking the city to its 26th Infantry Regiment..  On 21 October, men of the 26th Infantry Regiment took the western edge of central Aachen; that day also marked the surrender of the last German garrison in the Hotel Quellenhof, ending the battle for the city.  (WIKIPEDIA.ORG)

6.  The list of service personnel not recovered following World War II (MIA List) does not contain the applicant's brother's name.

7.  In the processing of this case documents were provided by the Defense Prisoner of War/Missing Personnel Office, Suitland, Maryland.  In those records it was shown that the applicant's brother was absent without leave (AWOL) from 20 to 23 November 1942; 30 May 1943; 12 to 23 June 1943; 11 to 30 November 1943; and 1 August to 22 September 1944.  The applicant's brother was reported AWOL from his station at Iserlohn, Germany on 23 April 1945 when he was not present at the time his organization moved after its rest period.  He was conversant with the Polish and Russian languages and was known to frequent a nearby Polish displaced persons camp.  The investigator stated that the applicant's brother was known to have said that he wanted to go to Poland, and that he may have attempted to satisfy that desire by mingling with the people in the Polish displaced persons camp.  The investigator continued that the applicant's brother may still be alive evading military authorities and unwilling to communicate with his relatives, or he may have been killed by men at the Polish displaced persons camp.  In either case, he was AWOL.  In statements taken from members of the applicant's brother's unit during the investigation, it was stated that there were no casualties at the time the applicant's brother was declared AWOL since the unit was on a rest period and not fighting at the time.  The applicant's brother was provided a copy of this documentation and given the opportunity to respond.  He did not respond by the suspense date imposed to do so.  

DISCUSSION AND CONCLUSIONS:

1.  The applicant's primary argument is that the unit clerk for his brother's unit stated that his brother was part of the unit's assault on Aachen, Germany, and he was one of the Soldiers who were missing after the battle.

2.  In this regard, the applicant's brother's unit, the 2nd Infantry Regiment, part of the Fifth Infantry Division, was not involved in the assault of the city of Aachen, Germany.  The attack was made by the 26th Infantry Regiment, which was part of the 1st Infantry Division.   In addition, the assault on the city of Aachen, Germany occurred in October 1944, and his brother was declared AWOL on 23 April 1945.

3.  Further, information provided by the Defense Prisoner of War/Missing Personnel Office shows that the applicant's brother was reported AWOL from his station at Iserlohn, Germany on 23 April 1945 when he was not present at the time his organization moved after its rest period.  The applicant's brother could not have been killed in action since the applicant's brother's unit was not in combat at the time.

4.  As such, the applicant has not submitted any evidence which would indicate that his brother was not properly declared AWOL.

5.  In view of the foregoing, there is no basis to correct the applicant's brother's records to show he was given a dishonorable discharge since his discharge was never ordered to be executed.  There is no basis for rescinding his brother's court-martial sentence since there is no presented evidence or argument which would show that his sentence was improper or unjust.  There is no basis to release the applicant's brother from service with any kind of discharge since there is insufficient evidence to show he was returned to military control after his second period of AWOL.  Lastly, there is no basis to change his brother's AWOL status and show that he was MIA and presumed dead since there is no evidence or argument which would support such a presumption.

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.



      ___________XXX__________
               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)                                         AR20090015053



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ABCMR Record of Proceedings (cont)                                         AR20090015053



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