IN THE CASE OF:	  

		BOARD DATE:	  17 February 2011

		DOCKET NUMBER:  AR20100017045 


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 his records be corrected to show his retirement grade as captain (CPT) instead of first lieutenant (1LT).

2.  The applicant states he was promoted to the rank of CPT several months prior to his retirement date.  However, his discharge document shows he was medically retired from the U.S. Army in the rank of 1LT.  

3.  The applicant provides a copy of a temporary promotion letter, dated 25 January 1946, and a WD AGO Form 199 (Proceedings of Army Retiring Board for Officers), dated 26 February 1946.

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 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.  With prior enlisted service from 17 March 1941 to 22 May 1942, the applicant was appointed in the Army of the United States on 23 May 1942 in the Ordnance Corps in the rank of second lieutenant (2LT).  He then completed the Instrument Repair Fire Control course from May 1942 to June 1942 at the Aberdeen Proving Grounds, MD.

4.  The applicant was promoted to 1LT on 3 September 1943.

5.  The applicant’s WD AGO Form 53-98 (Army Record and Report of Separation, Certificate of Service) shows he departed the United States on 26 December 1944 and arrived in the Asiatic Pacific Theater (APT) on 6 January 1945.  He was assigned to the 951st Ordnance Company.  He departed the APT on 24 September 1945 and arrived back in the United States on 29 September 1945.  

6.  His personnel service records contain a copy of WD AGO 8-118 (Disposition Board Proceedings for Officer) that states he was admitted to the hospital from overseas for psychiatric observation, treatment and disposition.  The applicant was diagnosed with anxiety reaction (chronic and severe) and his diagnosis was determined to be in line of duty.  The board recommended that the applicant appear before an Army Retiring Board and that he be retired to his own care.  This recommendation was approved on 19 November 1945.

7.  Special Orders Number 287, issued on 29 November 1945 by the Army Service Forces at Mason General Hospital granted the applicant terminal leave for 57 days and established a projected termination date of 25 January 1946.  On this date, he would revert to an inactive status because of a physical disability.  

8.  A letter, dated 25 January 1946, issued by the Army Service Forces, Second Service Command at Fort Dix, NJ temporarily promoted the applicant to the rank of CPT effective 11 January 1946 in the Ordnance Corps.  

9.  On 25 January 1946, the applicant was relieved from active duty and he was issued a WD AGO Form 53-98.  He had completed 2 years, 10 months and 29 days of continental service and 9 months and 3 days of foreign service.  Item 3 (Grade) shows his grade at the time of his separation as 1LT.  However, this form was altered to show the rank of "CAPT" (captain) typed in bolder font adjacent and over the rank of 1LT.  Item 33 (Reason and Authority for Separation) shows he reverted to inactive status because of a disability in accordance with Special Orders Number 287.     

10.  On 1 February 1946, the Office of The Surgeon General informed the Adjutant General Officers' Branch that it did not concur in the findings of the Army Retiring Board and recommended the record be returned to the board for reconsideration of its findings.  On 8 February 1946, the proceedings were returned to the Army Retiring Board.  On 12 February 1946, the applicant was notified that the board would reconvene.  

11.  On 26 February 1946, the Army Retiring Board reconvened.  The applicant did not appear but he was represented by counsel.  The board determined that he was not permanently incapacitated for military duty and recommended that he be placed on a temporary limited service status for six months with re-examination and re-evaluation at the end of that period.  

12.  On 21 March 1946, the Office of The Surgeon General approved the findings of the reconvened Army Retiring Board.  On 3 April 1946, the applicant was notified that the findings of the reconvened Army Retiring Board had been approved by the War Department.  On 16 April 1946, he responded that he did not desire to be ordered to active duty or to submit for re-examination and re-evaluation.  On 2 May 1946, The Adjutant General notified him that the findings of the reconvened Army Retiring Board had been approved and he would not be certified to the Veterans Administration for retirement pay benefits.  

DISCUSSION AND CONCLUSIONS:

1.  Based on the evidence of record, the applicant's was promoted to the rank of CPT (temporary) on 11 January 1946 while he was on terminal leave.  Orders show his terminal leave started on or about 29 November 1945 and he was separated on 25 January 1946.  When he was separated, he held the rank of CPT (temporary).  Therefore, he is entitled to a correction of his separation document to show he held the rank of CPT (temporary) in pay grade O-3 and his date of rank to captain was 11 January 1946.

2.  As the available evidence shows the applicant was not retired, there is no basis for correcting his records to show his retirement grade as CPT.



BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

__X_____  ___X____  ____X___  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

1.  The Board determined that the evidence presented was sufficient to warrant a recommendation for partial relief.  As a result, the Board recommends that all Department of the Army records of the individual concerned be corrected by amending his WD AGO Form 53-98 showing he was a CPT (temporary)/pay grade O-3 with a date of rank of 11 January 1946 when he was separated on    26 January 1946. 

2.  The Board further determined the evidence presented is insufficient to warrant a portion of the requested relief.  As a result, the Board recommends denial of so much of the application that pertains to correcting his records to show his retirement grade as CPT.




      _________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)                                         AR20100017045





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ABCMR Record of Proceedings (cont)                                         AR20100017045



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