IN THE CASE OF:	  

		BOARD DATE:	    23 February 2010

		DOCKET NUMBER:  AR20090015260 


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 that his WD AGO Form 53-55 (Enlisted Record and Report of Separation) be corrected to show his rank as sergeant instead of corporal.  He also requests, in effect, back pay and allowances.  

2.  The applicant states that he was discharged on 11 October 1945 but his promotion to sergeant was a few months later.  He contends that based on his status as a prisoner of war (POW) during World War II he was promoted to sergeant.  He would like his WD AGO Form 53-55 corrected and an adjustment in pay.   

3.  The applicant provides a copy of his WD AGO Form 53-55; a letter, dated 
9 April 1946, from The Adjutant General's Office, Records Administration Center in St. Louis, Missouri; and a letter, dated 28 September 1945, from the Army Service Forces, Headquarters Fourth Service Command, Atlanta, Georgia 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 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 military records are not available to the Board for review.  A fire destroyed approximately 18 million service members’ records at the National Personnel Records Center in 1973.  It is believed that the applicant’s records were lost or destroyed in that fire.  However, there were sufficient documents remaining in a reconstructed record for the Board to conduct a fair and impartial review of this case.  

3.  The applicant was inducted into the Army of the United States on 1 December 1942.  He served as a rifleman in the European Theater of Operations from 
20 October 1943 until approximately 1 July 1945 and was honorably discharged on 21 October 1945.

4.  Item 3 (Grade) on the applicant’s WD AGO Form 53-55 shows the entry "Cpl" [corporal].  Item 38 (Highest Grade Held) on his WD AGO Form 53-55 shows the entry "Cpl."  

5.  Records show the applicant was a POW from 18 December 1944 to 8 May 1945.

6.  In support of his claim, the applicant provided a letter, dated 28 September 1945, which states that he was temporarily appointed to sergeant effective 
28 September 1945.  This letter also states that the original of this letter will be furnished to the applicant as special orders will not be issued.

7.  The applicant also provided a letter, dated 9 April 1946, from The Adjutant General's Office, Records Administration Center in St. Louis, Missouri.  The letter stated, in pertinent part, that he was promoted to sergeant based on his status as a POW, that his records were amended to show his grade at discharge was sergeant, and that any correspondence pertaining to an adjustment in pay due to this promotion in grade should be directed to the Army Service Forces, Office of the Fiscal Director, Central Field Fiscal Office, Army Central Adjustment Office in St. Louis, Missouri.  

8.  There is no evidence of record which shows the applicant was not paid for an adjustment in pay due to his promotion to sergeant. 

9.  Title 31, U.S. Code, section 3702, also known as the barring statute, prohibits the payment of a claim against the Government unless the claim has been received by the Comptroller General within 6 years after the claim accrues. Among the important public policy considerations behind statutes of limitations, including the 6-year limitation for filing claims contained in this section of Title 
31, U.S. Code, is relieving the government of the need to retain, access, and review old records for the purpose of settling stale claims, which are often difficult to prove or disprove.

DISCUSSION AND CONCLUSIONS:

1.  The letter provided by the applicant which states that he was temporarily appointed to sergeant effective 28 September 1945 is accepted as sufficient evidence on which to amend items 3 and 38 on his WD AGO Form 53-55. 

2.  The applicant's contention that he was not paid for his promotion to sergeant was considered.  However, the 9 April 1946 letter he provided stated that any correspondence pertaining to an adjustment in pay due to his promotion should have been directed to The Adjutant General's Office, Records Administration Center in St. Louis, Missouri.  There is no evidence of record which shows the applicant was not paid for his promotion to sergeant.  Therefore, there is an insufficient basis for granting the applicant's request at this time.   

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

___X___  ___X____  ___X____  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

1.  The Board determined that the evidence presented was sufficient to warrant a recommendation for partial relief.  As a result, the Board recommends that all Department of the Army records of the individual concerned be corrected by:

	a.  deleting the entries in item 3 and 38 on his WD AGO Form 53-55; and

	b.  adding the entry "Sgt" [sergeant] in items 3 and 38 on his WD AGO Form 53-55.


2.  The Board further determined that the evidence presented is insufficient to warrant a portion of the requested relief.  As a result, the Board recommends denial of so much of the application that pertains to back pay and allowances due to his promotion to sergeant.  



      _________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)                                         AR20090015260



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ABCMR Record of Proceedings (cont)                                         AR20090015260



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