IN THE CASE OF:	  

		BOARD DATE:	    21 October 2010

		DOCKET NUMBER:  AR20100011726 


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 that his records be corrected to show he was promoted to captain while in the 870th Engineer Battalion in 1945.

2.  The applicant states he worked as a captain of his company from 7 November to 31 December 1945.  He had the responsibility as the battalion commander from 1 January to 28 January 1946.  He was transferred to the 1940th Company as the executive officer.

3.  The applicant provides copies of:

* his WD AGO Form 100 (Separation Qualification Record)
* his WD AGO Form 53-98 (Military Record and Report of Separation-Certificate of Service)
* 20 military-related documents
* a letter, dated 26 July 1946, from the Department of Veterans Affairs (VA) 

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 personnel 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 applicant’s records were lost or destroyed in that fire.  The records available for review were provided by the applicant and are sufficient for the Board to conduct a fair and impartial review of this case.  

3.  The applicant was appointed a second lieutenant in the Army of the United States on 18 November 1943 and entered active duty that date.  He had 1 year, 5 months, and 6 days of previous service in an enlisted status.

4.  The applicant arrived in the Asiatic-Pacific Theater on 2 June 1944.  On 
8 October 1944, he was assigned to the 870th Engineer Aviation Battalion.  His duties included:

* platoon commander from 10 August 1944 to 24 February 1945
* assistant S-4 from 25 February to 10 June 1945
* repair officer from 11 June to 6 November 1945
* company commander from 7 November to 31 December 1945
* battalion commander from 1 January to 28 January 1946

5.  On 29 January 1946, the applicant was assigned as the executive officer of the 1940th Engineer Aviation Utilities Company.

6.  On 10 July 1946, he returned to the continental U.S. and he was promoted to first lieutenant on 18 July 1946.

7.  The applicant's WD AGO Form 100 shows he was a first lieutenant and Summary of Military Occupations on this form shows he served as platoon leader, repair officer, company commander, and battalion commander for the 
870th Engineer Aviation Battalion.  He also served as the executive officer for the 1940th Engineer Aviation Utility Company, all in the Pacific Theater of Operations.

8.  On 6 October 1946, the applicant was released from active duty in the rank of first lieutenant.  He had completed 2 years, 10 months, and 19 days of active service that was characterized as honorable.

9.  The applicant was subsequently commissioned a first lieutenant in the U.S. Army Reserve on 24 October 1952.  He was honorably discharged on 
19 January 1955.

10.  War Department Circular 10 dated 11 January 1946 provided for the promotion of officers below the grade of colonel, and not members of the Regular Army, coincident with processing for separation from active duty.  A First Lieutenant being relieved from active duty was eligible for promotion to Captain provided he met the criteria of completion of 18 months on active duty in the grade of First Lieutenant, with an efficiency index of 40 or above.

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends he should be promoted to the rank of captain because he was assigned as a company commander and a battalion commander in the 870th Engineer Aviation Battalion in 1945 and 1946.

2.  It is not unusual for an officer to be assigned duties above his current rank, especially in the time of war when a shortage of qualified personnel is not inconceivable.  However, assignments of this nature do not automatically mean that an officer is promoted.  An officer is not promoted solely based on the duties he is assigned.  Therefore, the fact that the applicant was assigned duties of the company commander and the battalion commander does not infer that he should be promoted to captain. 

3.  The applicant was promoted to first lieutenant on 18 July 1946.  He was released from active duty on 6 October 1946.  He did not meet the time-in-grade requirement for promotion to captain.

4.  Therefore, in view of the above, there is insufficient evidence to support promoting the applicant to captain over 60 years after his period of service.

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)                                         AR20100011726



3


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1

ABCMR Record of Proceedings (cont)                                         AR20100011726



2


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1