BOARD DATE:	  15 April 2010

		DOCKET NUMBER:  AR20090017360 


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 he enlisted on 18 May 1943 not 10 November 1945.

2.  The applicant states, in effect, that he entered active duty on 18 May 1943 at Fort Sam Houston, TX.  He was furloughed on 9 May 1947 after serving in Europe.  He states he cannot get Veteran medical benefits because his discharge paper shows he enlisted on 10 November 1945. 

3.  The applicant provides the following documents:

	a.  WD AGO Form 53-55 with a separation date of 9 May 1947;

	b.  Veterans Administration (VA) Insurance Form 350 (Application for National Service Life Insurance), dated 18 May 1943;

	c. VA Insurance Form 360 (VA National Service Life Insurance) showing insurance effective dates of 19 May 1943 and 19 February 1945; and

	d.  WD AGO Form 29-6 (Authorization of Class B Allotment for Purchase of War Savings Bonds), dated July 1943.


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 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 to conduct a fair and impartial review of this case, including the applicant's WD AGO Form 53-55 and documents provided by the applicant.

3.  A search of the records at the National Archives and Records Administration revealed a copy of the applicant's WD Form 370 (Final Pay Statement).  This statement shows the applicant was inducted into the Army of the United States on 11 May 1943 in Houston, TX and he served in an active duty status over
2 years until he was discharged in Paris, France on 9 November 1945 for immediate enlistment in the Regular Army.  A first lieutenant, Infantry, certified this form showing it was the applicant's final pay statement for his induction period.  The applicant's WD AGO Form 53-55 for this period of service is not available for review.

4.  The applicant's WD AGO Form 53-55 shows he enlisted in the Regular Army on 10 November 1945 in Paris, France while serving in the European-African-Middle Eastern Theater of Operations.  He departed this theater of operations on 30 August 1946 and returned to the United States on 10 September 1946.  He was stationed at Camp Hood, TX until he was honorably discharged, due to the expiration of his term service on 9 May 1947.  The highest grade he held was staff sergeant.  Additionally, this form shows the following:

	a.  Item 25 (Place of Entry into Service) shows the entry Headquarters, AGRC [Army Graves Registration Command] Depot, APO 887, U.S. Army;

	b.  Item 39 (Prior Service) of the applicant's WD AGO Form 53-55 shows the entry "United States Army 2 years, 5 months, [and] 29 days;" and  

	c.  Item 43 (Longevity for Pay Purposes) shows the entry 3 years, 11 months, and 29 days.  

5.  Army Regulation 615-365, in effect at the time, governed the discharge of enlisted Soldiers for the convenience of the Government under one of seven categories:

	a.  to accept a commission or appointment as an officer or warrant officer or as a service academy cadet;

	b.  to permit immediate reenlistment in the Regular Army for 3 years or more (members currently serving in the Regular Army); 

	c.  when to do so was based upon the individual’s importance to national health, safety, or interest; and

	d.  to permit immediate reenlistment in the Regular Army for 3 years or more (members currently serving in the Army of the United States).

6.  Army Regulation 615-365 stated that, unless otherwise directed, an Honorable Discharge or a General Discharge Certificate would be issued upon separation from the active Army.

7.  War Department Technical Manual (TM) 12-235 (Enlisted Personnel - Discharge and Release from Active Duty), dated January 1945, provided uniform procedures in discharging or releasing personnel from active duty.  The instructions for completing the WD AGO Form 53-55 states this form is completed from the Service Record, Soldier's Qualification Card, Immunization Register, and information ascertained by interview with the Soldier.  

8.  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 contends that his WD AGO 53-55, with a separation date of 9 May 1947, is incorrect because it does not show he entered the Army on 11 May 1943.  He needs this form corrected so he can get Veterans medical benefits.   

2.  The WD AGO Form 53-55 the applicant provided shows he entered the Regular Army on 10 November 1945 in Paris, France while serving in the European-African-Middle Eastern Theater of Operations.  He returned to the United States on 10 September 1946 and completed his remaining service obligation.  He was separated on 9 May 1947 at Camp Hood, TX.  This form does show he had prior service.  It shows he had previously served for 2 years, 5 months, and 29 days.  

3.  Additionally, the applicant's WD Form 370 (Final Pay Statement) shows his date of induction as 11 May 1943 and that he was discharged for the purpose of an immediate enlistment in the Regular Army in Paris, France on 9 November 1945.  

4.  While there is no WD AGO Form 53-55 available for the Board's review for the applicant's first period of service, an assumption of administratively regularity is presumed.  Therefore, it is presumed that upon his discharge from his first period of military service, he was issued a WD AGO Form 53-55.  

5.  In 1973 a fire destroyed personnel records at the National Personnel Records Center and it is presumed the applicant's records for his dates of service from 11 May 1943 to 9 November 1945 were destroyed.  

6.  As such, the WD AGO Form 53-55 issued to the applicant on 9 May 1947 is correct as published.  The Board cannot correct a record that is administratively correct.  However, the Board can assist the applicant by providing a Statement of Service showing he was inducted into the Army of the United States on 11 May 1943 and he was honorably discharged on 9 November 1945. 









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 issuing the applicant a Statement of Military Service showing he was inducted on 11 May 1943 and honorably discharged on 9 November 1945.  

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 adjusting his properly issued WD AGO Form 53-55 to show he entered military service on 18 May 1943.



      _______ _   _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)                                         AR20090017360



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ABCMR Record of Proceedings (cont)                                         AR20090017360



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