IN THE CASE OF:	  

		BOARD DATE:	  17 June 2010

		DOCKET NUMBER:  AR20090019709 


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 change of his grade on his WD AGO Form 53-55 (Enlisted Record and Report of Separation - Honorable Discharge) for the period ending 1 January 1946 from private (PV2)/E-2 to staff sergeant (SSG)/E-6.

2.  The applicant states he was doing a staff sergeant's job as a special vehicle operator while having the rank of private.  He states his commander didn't like him and wouldn't promote him.

3.  The applicant provides copies of:

* his WD AGO 53-55
* his Honorable Discharge Certificate
* a letter from the National Personnel Records Center, dated 9 October 2009

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 complete military service 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.  This case is being considered using reconstructed records that primarily consist of the applicant's WD AGO
Form 53-55 and a War Department Form No. 372A (Final Payment - Work Sheet).

3.  The applicant's WD AGO Form 53-55 shows he enlisted and entered active service on 9 September 1942.  He successfully completed basic combat and advanced individual training and he was awarded military occupational specialty 932 (Special Vehicle Operator).

4.  The applicant arrived in New Guinea on 11 December 1943 and he returned to the continental U.S. on 19 December 1945.

5.  On 1 January 1946, the applicant was honorably discharged.  Entries on his WD AGO 53-55 shows in:

* item 3 (Grade) the entry PVT [private]
* item 38 (Highest Grade Held) the entry PVT

6.  There are no available orders promoting the applicant above the grade of private.

7.  A War Department Form 372A shows the applicant's final payment on his date of discharge, 1 January 1946, was in the grade of private.

8.  Technical Manual 12-235 (Discharge Procedures and Preparation of Separation Forms), in effect at the time, provides that the grade held at the time of separation and the date of rank or appointment will be entered in Item 3 (Grade) of the WD AGO Form 53-55.

9.  Army Regulation 15-185 (ABCMR) 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 his grade shown on his WD AGO 53-55 should be staff sergeant.  He contends he was doing a staff sergeant's job but his commander didn't like him and wouldn't promote him.

2.  The applicant did not submit any evidence showing the job he was performing was a staff sergeant's job.  He did not submit any evidence to substantiate his contention that the commander didn't like him and, as a result, would not promote him.  Therefore, the applicant's contentions cannot be considered as mitigating in the determination of his case.

3.  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.

4.  The applicant's WD AGO 53-55 shows his highest grade held as private.  The War Department Form 372A shows he was paid in the grade of private when he was discharged.  There are no orders available promoting the applicant to any grade above private.  Therefore, without any evidence to the contrary, it must be presumed the entry in item 3 of his WD AGO 53-55 showing his grade as private is correct.

5.  In order to justify correction of a military record the applicant must show to the satisfaction of the Board, 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:

1.  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.

2.  The Board wants the applicant and all others concerned to know that this action in no way diminishes the sacrifices made by the applicant in service to our Nation.  The applicant and all Americans should be justifiably proud of his service in arms.



      ___________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)                                         AR20090019709



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ABCMR Record of Proceedings (cont)                                         AR20090019709



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