IN THE CASE OF:	  

		BOARD DATE:	  29 April 2010

		DOCKET NUMBER:  AR20100008367 


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, through his Member of Congress, reconsideration of his earlier request for correction of his records to show he attained the rank of staff sergeant (S/Sgt).

2.  The applicant states, through his Member of Congress, that when he sought to correct his records in the past, he learned that his service records were destroyed in the 1973 fire and his request was subsequently denied.  He now has material evidence that was not previously considered.  A letter from a member of his squad states that he was present at his 1944 promotion.

3.  The applicant provides a copy of his previously-submitted WD AGO Form   53-55 (Enlisted Record and Report of Separation) and WD AGO Form 100 (Separation Qualification Record), dated 10 October 1945; a copy of a previously-submitted statement, dated 3 June 2004, from a former member of his unit; and a statement, dated 28 January 2010, from another former member of the unit.

CONSIDERATION OF EVIDENCE:

1.  Incorporated herein by reference are military records which were summarized in the previous consideration of the applicant's case by the Army Board for Correction of Military Records (ABCMR) in Docket Number AR1999032790, on 24 May 2000.

2.  The applicant submitted a statement, dated 28 January 2010, from another former member of the unit which was not previously reviewed by the ABCMR; therefore, it is considered new evidence and as such warrants consideration by the Board.

3.  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 his 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.

4.  His WD AGO Form 53-55 shows he was inducted into the Army of the United States on 9 June 1943 and he entered active duty in Newark, NJ, on 23 June 1943.  This form also shows that at the time of his separation, he held military occupational specialty (MOS) 745 (Rifleman) and he was assigned to the 19th Replacement Depot, 29th Division.

5.  His WD AGO Form 53-55 shows he departed continental United States (CONUS) on 5 January 1944 and arrived in the European Theater of Operations (ETO) on 21 January 1944.  He departed the ETO on 4 August 1945 and arrived in CONUS on 15 August 1945.  

6.  He completed 8 months and 21 days of continental service and 1 year, 7 months, and 11 days of foreign service.  He was honorably discharged with a certificate of disability in the rank/grade of private (Pvt)/Grade 7 on 10 October 1945.

7.  Item 38 (Highest Grade Held) shows the entry "Pvt." 

8.  His WD AGO Form 100 listed his grade as that of a Pvt.  Additionally, the "Military Specialties" block of this form shows he held MOS 521 (Basic Training Infantryman) for 4 months, MOS 745 for 1 year, and MOS 321 (Watchmaker) for 3 months.  All specialties listed his grade as that of a Pvt.

9.  The applicant previously submitted an undated letter from a witness who was assigned to F Company, 115th Regiment, 29th Division, at the time.  He states that he was present in June 1944 when a lieutenant promoted the applicant to S/Sgt. 



10.  He now submits a statement, dated 28 January 2010, from a former member of another company within the 115th Infantry Regiment wherein the author states that he was assigned to H Company, 115th Infantry Regiment, 29th Infantry Division, and served with this unit at the same time as that of the applicant.  He adds that they were both privates in England and that the applicant was promoted to S/Sgt in June 1944 during the same time period that he (the author) was promoted to Sgt.

11.  There is no indication in his records that he was recommended for or promoted to S/Sgt.

12.  From 1 September 1942 through 31 July 1948, the Army enlisted grade structure consisted of seven grades:  

    Grade 7 – Private							Grade 6 – Private First Class
    Grade 5 – Corporal						Grade 4 – Sergeant
    Grade 3 – Staff Sergeant				Grade 2 – Technical Sergeant
    Grade 1 – Master Sergeant/First Sergeant

13.  Army Regulation 615-5 (Appointment and Reduction of NCOs and PFCs), in effect at the time, governed the appointment and reduction of noncommissioned officers and Privates First Class.  In pertinent part, it stated noncommissioned officers appointed during an emergency under special authorization of the War Department would be temporary appointments.  In order to provide an opportunity to observe the performance of candidates for higher grades, unit commanders were authorized to exceed their authorized allotments in any grade by the number of vacancies that existed in a higher grade pending the promotion of the best-qualified candidate(s).  

14.  War Department Technical Manual (TM) 12-236 (Preparation of Separation Forms), in effect at the time, provides that the appropriate separation form will be prepared for all enlisted personnel separated from the service by reason of discharge, retirement, or release from active duty or transfer to a Reserve Component.  This manual states that item 3 shows the grade held by the enlisted member at the time of separation and item 38 shows the highest grade held by the enlisted member during current period of active duty.  

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends that his records should be corrected to show he was promoted to S/Sgt.

2.  Notwithstanding the former unit member's statement, the available evidence shows he served in the rank of "Pvt" at the time of his discharge.  There is insufficient evidence in the form of an official order, a recommendation for promotion or appointment, or other documentary evidence that shows he served in a higher grade.

3.  The applicant's honorable service during World War II and his decorations are not in question.  Additionally, his sincerity is not in question.  However, there is insufficient evidence to support granting his request.  His reconstructed records show he held the rank of Pvt for a period of 4 months during basic training as well as during the remainder of his military service.  He may have performed duties as an acting sergeant for a specific period of time or function; however, there is no indication or evidence that he was promoted or appointed to or held a higher rank than that shown on his WD AGO Form 53-55.  

BOARD VOTE:

___X____  ____X___  ___X___  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

1.  Notwithstanding the staff DISCUSSION AND CONCLUSIONS above, the Board determined that the overall merits of this case are sufficient as a basis to amend the decision of the ABCMR set forth in Docket Number AR1999032790, dated 24 May 2000

2.  The Board found that the additional supporting statement provided by the applicant was sufficient to show that he was, at the least, recommended for promotion to Staff Sergeant.  The supporting statements indicate the promotion was made in June 1944.  The applicant's WD AGO Form 100 indicates he participated in the D-Day invasion of Normandy.  The field situation and pace of operations during that time made it difficult to maintain records with 100 percent accuracy.  Therefore, there is reasonable justification to believe that his promotion would have become official but for his wounds and evacuation making his official promotion virtually impossible.

3.  While the evidence of record still shows that the applicant's permanent rank at separation was Private, as far as the highest rank he had ever held is concerned any doubt should be resolved in his favor and item 38 of his WD AGO Form     53-55 should be corrected to show the highest grade he held was Staff Sergeant. As there is no evidence of record to show a promotion to Staff Sergeant was approved, no pay and allowances should be authorized.



      _______ _   XXX_____   ___
               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)                                         AR20100008367



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ABCMR Record of Proceedings (cont)                                         AR20100008367



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