IN THE CASE OF:	  

		BOARD DATE:	  19 October 2010

		DOCKET NUMBER:  AR20100010871 


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 a DD Form 214 (Certificate of Release or Discharge from Active Duty) to document his period of service from 10 April 1945 to 
25 November 1945.

2.  The applicant states he went into the Army on 10 April 1945, was discharged on 25 November 1945, reenlisted on 26 November 1946, and was discharged on 17 December 1946.

3.  The applicant provides copies of:

* his National Archives (NA) Form 13038 (Certification of Military Service)
* his WD AGO Form 53-55 (Enlisted Record and Report of Separation, Honorable Discharge)
* his letter, dated 3 December 1995
* a letter, dated 28 June 1996, from the Office of Personnel Management (OPM)

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 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 the applicant’s 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.  

3.  The applicant was inducted in the Army of the United States (AUS) on 10 April 1945.  On 25 November 1945, he was discharged to immediately enlist in the Regular Army on 26 November 1945.

4.  The applicant served in the Asiatic-Pacific Theater from 21 February 1946 to 5 November 1946.

5.  On 17 December 1946, the applicant was discharged.  He had completed 
1 year and 22 days of active service that was characterized as honorable.  
Item 39 (Prior Service) of his WD AGO Form 53-55 indicates he had 7 months and 16 days service in the AUS.

6.  On 14 September 1995, the NPRC sent the applicant a Certification of Military Service.  This document certifies the applicant was a member of the AUS from 10 April 1945 to 25 November 1945 and he received an honorable discharge.  He was discharged to enlist in the Regular Army on 26 November 1945.  A note at the bottom of this document states this Certification of Military Service is issued in the absence of a copy of the actual Report of Separation, or its equivalent.  This document serves as verification of military service and may be used for any official purpose.

7.  On 3 December 1995, the applicant submitted his Certification of Military Service to OPM for recomputation of his retirement annuity.  According to OPM's letter, dated 28 June 1996, the Certification of Military Service was accepted and his retirement annuity was adjusted accordingly.


8.  References:

	a.  Army Regulation 615-360 (Discharge; Release from Active Duty), then in effect, stated no enlisted man, lawfully enlisted or inducted into the military service of the United States, shall be discharged from said service without a certificate of discharge.

	b.  Army Regulation 635-5 (Separation Documents) states that a DD Form 214 will not be issued to replace record copies or DD Forms 214 lost by Soldiers. This regulation further states that if no DD Form 214 is available, a statement of service or transcript of military record may be issued.

	c.  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 he should be issued a DD Form 214 to document his period of service from 10 April 1945 to 25 November 1945.

2.  The regulation in effect at time stated the applicant would have been issued a certificate of discharge at the time he was discharged and enlisted.  In the absence of evidence to the contrary, it must be presumed that a certificate was in fact issued at that time.  

3.  The NPRC has issued the applicant a Certification of Military Service.  This document is accepted as a valid record of service.  This is shown by the fact that OPM accepted the document and adjusted his retirement annuity based on it. 

4.  The applicant's Certification of Military Service and his WD AGO Form 53-55 together show he served from 10 April 1945 to 17 December 1946.

5.  Army regulation specifically prohibits the reissuance of a DD Form 214 to replace record copies or DD Forms 214 (certificates of discharge) lost by Soldiers. Therefore, a DD Form 214 (or WD AGO Form 53-55) should not be issued to replace the certificate of discharge he is presumed to have received on 25 November 1945.

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)                                         AR20100010871





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ABCMR Record of Proceedings (cont)                                         AR20100010871



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