IN THE CASE OF:	  

		BOARD DATE:	    8 June 2010

		DOCKET NUMBER:  AR20090021262 


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 his WD AGO Form 53-55 (Enlisted Record and Report of Separation - Honorable Discharge) and WD AGO 100 (Separation Qualification Record) to show he held the grade of sergeant (SGT) at the time of his separation instead of private first class (PFC).

2.  The applicant states that his discharge paperwork should be corrected to reflect his grade as SGT based upon the fact he served twice in a billet requiring that grade.  He further states he filled the position of "Acting SGT" from
1 October 1944 until 3 November 1945.  He contends that based on his service as a combat veteran his records should reflect his highest position held.

3.  The applicant states during the invasion of Holland, all but two members of his squad were either killed or captured.  As a result, a new squad was formed and he was appointed as an Acting SGT and assigned the role of Assistant Squad Leader.  He also states he could not actually be promoted at the time due to the fact only a limited number of SGTs were allowed in the platoon.

4.  The applicant states that at a later date, he served in a SGT's billet as an instructor at the Parachute School located at Fort Benning, GA.  He further states he was immediately recommended for the grade of staff sergeant, but he was informed he could only be advanced two grades at a time.  As a result, he was recommended for promotion SGT again, but he was discharged before the promotion was finalized.  During his separation processing at Fort Dix, NJ, he 

requested to have the grade of SGT entered on his discharge documents, but he was told they could not do that there.

5.  The applicant provides copies of

* a self-authored statement
* a WD AGO Form 53-55
* a WD AGO 100
* a Letter of Commendation
* a photo

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 record is not available to the Board for review.  A fire destroyed approximately 18 million service members’ records at the National Personnel Records Center (NPRC) in 1973.  It is believed that his records were lost or destroyed in that fire.  However, there were sufficient documents on file for the Board to conduct a fair and impartial review of this case.  This case is being considered using reconstructed records, which primarily consist of the applicant's WD AGO Form 53-55, WD AGO Form 100, and a WD Form 372A (Final Payment - Worksheet) obtained from the NPRC located in St. Louis, MO.

3.  The applicant's WD AGO Form 53-55 shows he was inducted into the Army of the United States on 22 March 1943 and he entered active service on 29 March 1943.  He was honorably discharged on 30 November 1945 after completing a total of 2 years, 8 months, and 2 days of active military service.

4.  Item 3 (Grade) of the WD AGO Form 53-55 issued to the applicant on the date of his discharge shows he held the grade of PFC.

5.  Item 38 (Highest Grade Held) shows the entry "PFC."

6.  The Military Occupational Assignments portion of the applicant's WD AGO 100 issued to him at the time of his discharge shows he served as a private (PVT) for nine months and as a PFC for 20 months.  This form also shows he served as acting Assistant Squad Leader for an unspecified period of time and as an instructor at the Parachute School for four months, but it does not show the grades of these positions.

7.  The applicant's WD Form 372A shows he was paid as a PFC at the time of his discharge.

8.  The applicant provides a Letter of Commendation he received from the Director of Parachute Training Division of the Parachute School, Fort Benning, on 20 November 1945.  His grade appears as PFC in this letter.

9.  The applicant also provides a photograph depicting 12 men wearing fatigue uniforms without nametags.  He identified a man wearing the grade insignia of SGT as himself.

10.  The applicant's available record contains no evidence and he has failed to provide any evidence showing he was promoted to the grade of SGT.

11.  War Department Technical Manual 12-236 (Preparation of Separation Forms), in effect at the time of the applicant's separation, provided the procedures to be followed in the separation of enlisted personnel from active service and described the proper method of execution and disposition of the various forms, records, and reports required.  In pertinent part, this manual stipulated that the WD AGO Form 53-55 and WD AGO 100 were to be completed based upon interviewing the Soldier and referring to all available records regarding the period of service to be covered by the forms.  The Technical Manual provided the grade in which the Soldier was serving at the time of separation would be entered in:

* item 3 of the WD AGO Form 53-55
* the standard name line of the WD AGO 100

DISCUSSION AND CONCLUSIONS:

1.  The applicant's contention that his WD AGO Form 53-55 and WD AGO 100 should be corrected to show he held the grade of SGT at the time of his 
separation instead of PFC was carefully considered.

2.  His grade consistently appears as PFC in the available record and the Letter of Commendation he provided.

3.  His record contains no evidence and he has failed to provide any evidence showing he was promoted to the grade of SGT.  He acknowledges he was only an acting SGT and was discharged before his promotion to SGT could be finalized.

4.  Although the evidence indicates he temporarily served in positions of greater responsibility, there is no regulatory provision for promoting him based solely upon that service.

5.  In order to justify correction of a military record the applicant must show, or it must otherwise satisfactorily appear, that the record is in error or unjust.  He has failed to submit evidence that would satisfy this requirement.  In absence of evidence to the contrary, the preponderance of evidence in the available records supports presumption of regularity in the personnel records maintenance process.  Therefore, he is not entitled to the requested relief.

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.



      __________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)                                         AR20090021262



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ABCMR Record of Proceedings (cont)                                         AR20090021262



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