IN THE CASE OF:	  

		BOARD DATE:	  20 October 2010

		DOCKET NUMBER:  AR20100011406 


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 PFC (private first class) to CPL (corporal).

2.  The applicant states he carried the BAR (Browning automatic rifle) all during the Leyte invasion and during the Okinawa invasion until he was wounded.  He states the person carrying the BAR was a CPL and he wants his headstone to have the correct grade.

3.  The applicant provides no additional evidence in support of his application.

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
* WD AGO Form 100 (Separation qualification Record
* War Department Form No. 372A (Final Payment - Work Sheet)
* War Department Form No. 372B (Final Payment - Work Sheet)

3.  The applicant's WD AGO Form 53-55 shows he enlisted on 30 July 1942 in the Army of the United States and entered active service on 30 January 1943.  He successfully completed basic combat and advanced individual training and he was awarded military occupational specialty (MOS) of 745 (Rifleman).

4.  The applicant arrived in the Asiatic-Pacific Theater on 3 August 1944 and returned to the continental U.S. on 11 May 1945.

5.  On 14 November 1945, the applicant was honorably discharged.  Entries on his WD AGO 53-55 show in:

* item 3 (Grade) - PFC
* item 38 (Highest Grade Held) - PFC

6.  The applicant's WD AGO Form 100 shows in item 3 (Grade) - PFC.  The section entitled Military Occupational Assignments shows the applicant was assigned duties in the MOS 746 (Automatic Rifleman) for 3 months in the grade of PFC.

7.  There are no available orders showing the applicant was promoted to CPL.

8.  War Department Form 372A and War Department Form 372B show final payments to the applicant in the grade of PFC.

9.  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.


10.  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 CPL.  He contends he carried the BAR and the man carrying the BAR was a corporal.

2.  The applicant's WD AGO Form 100 does show he was assigned as an automatic rifleman for a period of 3 months.  However, the form also shows his grade as a PFC during that period.

3.  The applicant's WD AGO 53-55 shows his highest grade held as PFC.  The War Department Form 372A and War Department Form 372B show he was paid in the grade of PFC when he was discharged.  There are no orders available promoting the applicant to CPL.  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 PFC is correct.

4.  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)                                         AR20100011406



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ABCMR Record of Proceedings (cont)                                         AR20100011406



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