IN THE CASE OF:
BOARD DATE: 30 March 2010
DOCKET NUMBER: AR20090016039
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 correction of Item 3 (Grade) of his WD AGO Form
53-55 (Enlisted Record and Report of Separation - Honorable Discharge) and WD AGO Form 100 (Separation Qualification Record) to show his grade as Sgt [sergeant].
2. The applicant states that on his last day of duty he was wrongly informed of a formation location and he was reduced from Sgt to Pvt [private]. A demotion order was never published nor was the demotion justified or deserved. His pay was not reduced nor did he disrespect his superiors. At the time of his discharge he did not care about the grade shown, he just wanted to go home. He is requesting the Board change his grade back to his deserved grade for his burial headstone.
3. In support of his application, the applicant provides copies of his WD AGO Form 53-55, WD AGO Form 100, and a character reference letter.
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 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 applicants records were lost or destroyed in that fire. However, there were sufficient documents remaining in a reconstructed record, and documentation submitted by the applicant, for the Board to conduct a fair and impartial review of this case.
3. The applicant's available military records show that he was inducted into the Army of the United States and entered active service on 7 November 1942. He completed training as an automobile mechanic. He served overseas in the European Theater of Operations from 10 December 1944 until his return to the continental United States on 31 July 1945.
4. The applicant was honorably discharged from active duty on 17 October 1945. Item 3 of his WD AGO Form 53-55 shows his grade as Pvt. Item 38 (Highest Grade Held) is blank.
5. The applicants WD AGO Form 100, Item 3, shows his grade as Pvt. Item 11 (Grade) shows he served in the grade of Pvt for 4 months, in the grade of Tec 4 for at total of 21 months, and in the grade of Sgt for 9 months. There are no inclusive dates listed for these periods of service.
DISCUSSION AND CONCLUSIONS:
1. The applicant's contention that Item 3 of his WD AGO Form 53-55 and WD AGO Form 100 should be corrected to show his grade as Sgt has been noted. The evidence shows he served in the grade of Pvt for 4 months and in the grade of Sgt for 9 months; however, there is no evidence of record showing that Sgt was the highest grade he held at the time of his discharge. There is no evidence in the available record and none was provided by the applicant to support the requested relief. Therefore, it is concluded that Items 3 of his WD AGO Form
53-55 and WD AGO Form 100 are correct in properly showing his rank as Pvt.
2. Based on the evidence of record, the highest grade the applicant satisfactorily held during his period of service was that of Sgt. Therefore, it would be appropriate to amend Item 38 of his WD AGO Form 53-55 to show the grade of Sgt.
3. In view of the foregoing, the applicant's records should be corrected as recommended below.
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 amending Item 38 of the applicants WD AGO Form 53-55 to show the grade of Sgt was the highest grade satisfactorily held and providing him a corrected separation document that includes this amendment.
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 correction of Items 3 of the applicants WD AGO Form 53-55 and WD AGO Form 100 to show the grade/rank of Sgt.
___________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) AR20090016039
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ARMY BOARD FOR CORRECTION OF MILITARY RECORDS
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ABCMR Record of Proceedings (cont) AR20090016039
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ARMY BOARD FOR CORRECTION OF MILITARY RECORDS
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