IN THE CASE OF:	  

		BOARD DATE:	  10 November 2010

		DOCKET NUMBER:  AR20100013022 


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, the grandson of a deceased former service member (FSM), requests, in effect, correction of the FSM's WD AGO Form 53-55 (Enlisted Record and Report of Separation - Honorable Discharge) to show his rank as sergeant (SGT) and he served as a military policeman (MP).  

2.  He states the family has exhausted all resources seeking to correct the rank on his grandfather's tombstone.  His grandfather's tombstone should show the rank of SGT and not private (PVT) and he served as an MP.  His grandfather's annual salary for a single enlisted man is commensurate with that of the rank of SGT.  The salary does not equate to the rank of PVT as noted from supportive statistical documents (Barron's World War II financial standard salaries).  According to his grandfather's report of separation and honorable discharge, he is listed as a single man.  Single men in the military during his duration in the U.S. Army received the standard amount pay rate.  In fact, his grandfather received an increase in his salary because his occupation was that of an MP in the Army.

3.  He provides the FSM's WD AGO Form 53-55, National Archives and Records Administration (NA) Form 13038 (Certification of Military Service), and Certificate of Death; letters of support from himself and a neighbor; a Standard Form 180 (Request Pertaining to Military Records); a response from the Army Board for Correction of Military Records (ABCMR), dated 20 April 1999; a letter from the Social Security Administration; and the Barron's National Business and Financial Weekly.

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 FSM's available military records and WD AGO Form 53-55 submitted by the applicant show the FSM was inducted into the Army of the United States and entered active service on 6 May 1941.  He completed training and he was awarded military occupational specialty 566 (duty noncommissioned officer (NCO)).

3.  He was honorably discharged from active duty on 13 July 1945.  Item 3 (Grade) of his WD AGO Form 53-55 shows his rank as "Pvt."  He was also issued an Honorable Discharge Certificate showing his rank as "Private."

4.  A WD AGO Form 100 (Separation Qualification Record), dated 13 July 1945, summarized the FSM's military occupation as the duty NCO and that he supervised and trained enlisted men in pre-basic military training for the purpose of becoming combat Soldiers.  The form shows the FSM's highest grade held was "Pvt."

5.  A WD Form Number 871 (Final Payment Roll), dated 13 July 1945, shows the FSM's rank as a "Pvt" at the time of his separation.

6.  An NA Form 13038, dated 12 November 2009, shows the FSM's rank as "Pvt."

7.  The FSM's available records contain a VA Form 3101 (Veterans Administration Request for Information), dated 6 June 1956, which shows the FSM's last rank was PVT.  A VA Form 8-530 (Application for Burial Allowance), dated 23 June 1958, shows FSM died on 21 May 1958 and his rank at the time of his separation was Pvt.

8.  The applicant provided a Barron's National Business and Financial Weekly, dated 24 April 1944, that references the income of unmarried Pvt's serving in the military and featured a table for their net annual earnings after deduction of normal expenditures out of pay.

DISCUSSION AND CONCLUSIONS:

1.  The applicant's contentions have been noted.  However, the evidence of record show the FSM was inducted into the Army of the United States in the rank of Pvt, he served in that rank during his entire period of service, and he was separated in the rank of Pvt.  There is no evidence the FSM was advanced to or served in the rank of SGT during his period of service.  The evidence also shows the FSM served as a duty NCO during his period of military service.  There is also no evidence to show he served as an MP during his service.

2.  There is no evidence in the available record and the applicant has provided insufficient evidence to support granting the requested relief.  Therefore, it is concluded that the FSM's records and WD AGO Form 53-55 are correct in properly showing his rank as Pvt.

3.  This Board is not an investigative body but rules on cases legally before it based on the evidence of record and whether an error or an injustice exists in that record.  The rule of law pertinent to the Board provides for consideration of all cases with the presumption of administrative regularity, and that applicants have the burden of proving an error or injustice by a preponderance of the evidence.  The necessary presumption of regularity dictates that what action was taken by the Army was appropriate unless evidence submitted by the applicant may show or convince the Board otherwise.

4.  In view of the foregoing, there is no basis for granting the applicant's request.

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)                                         AR20100013022



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ABCMR Record of Proceedings (cont)                                         AR20100013022


   
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