IN THE CASE OF:
BOARD DATE: 20 October 2010
DOCKET NUMBER: AR20100011640
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, in effect, a promotion to staff sergeant/technician third grade.
2. The applicant states, in effect, during his World War II assignments he was transferred "in grade" which meant no provision for promotions or that promotions were frozen. He contends he did his assigned job well under combat and that he was disappointed in not receiving recognition of his entitled rank (not to mention the lost pay) from the Army.
3. The applicant provides:
* Privacy Act statement
* Letters to Members of Congress
* Letters from Members of Congress
* WD AGO Form 53-55 (Enlisted Record and Report of Separation)
* 6828th Signal Detachment Historical Records, dated November 1944 and January 1945
* U.S. Army enlisted rank insignia of World War II
* His memoir of his experience in World War II
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 applicants 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 applicants failure to timely file. In all other respects, there are insufficient bases to waive the statute of limitations for timely filing.
2. The applicants 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 the applicants 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's WD AGO Form 53-55 shows he enlisted in the Army of the United States on 10 August 1942. He served as a code clerk and he was honorably discharged on 5 November 1945.
4. Item 3 (Grade) on the applicants WD AGO Form 53-55 shows the entry "TEC [technician] 5." Item 38 (Highest Grade Held) on his WD AGO Form 53-55 shows the entry "TEC 5."
5. The applicant's War Department Form 372A (Final Payment - Work Sheet) shows his grade was "T-5" [technician fifth grade].
6. There is no evidence of record which shows that a vacancy for a technician third grade existed at the time in question.
7. There is no evidence in the available records which shows the applicant held the grade of technician third grade temporarily or was promoted to technician third grade prior to his discharge on 5 November 1945.
8. A review of the enlisted rank/pay grade structure of the Army between
1 September 1942 and 31 July 1948 shows that grade 5 was a corporal/technician fifth grade and grade 3 was a staff sergeant/technician third grade.
9. Army Regulation 615-5 (Enlisted Men, Appointment and Reduction of Noncommissioned Officers and Private First Class), in effect at the time, stated that in order to provide an opportunity to observe the performance of candidates for higher grade, 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 or candidates.
DISCUSSION AND CONCLUSIONS:
The applicant's contentions were carefully considered. However, his WD AGO Form 53-55 shows he was a technician fifth grade at the time of his discharge on
5 November 1945. There is no evidence of record which shows that a vacancy for a technician third grade existed at the time in question and there is no evidence of record which shows that the applicant was promoted to technician third grade prior to his discharge. Regrettably, there is no basis for granting the applicant's 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) AR20100011640
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ABCMR Record of Proceedings (cont) AR20100011640
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