IN THE CASE OF:	  

		BOARD DATE:	  13 January 2011

		DOCKET NUMBER:  AR20100017212 


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, correction of his records to show he was awarded the Purple Heart; promoted to lieutenant colonel (LTC)/pay grade O-5, colonel (COL)/pay grade O-6, or brigadier general (BG)/pay grade O-7; and that he completed a sufficient number of qualifying years of military service to retire from the U.S. Army Reserve (USAR).

2.  The applicant states, in effect, he participated in the Junior Reserve Officers’ Training Corps (JROTC) program for three years while he was in high school and achieved the rank of first lieutenant.  He also states that he enlisted in the USAR on 21 June 1943, but he was not to be called to active duty until after he was 17 years of age in September 1943.  He adds he attended Stanford University at government expense from October to December 1943.

   a.  He states he was called to active duty on 12 January 1944 and he trained at several military installations in the United States.  He adds he was sent to Camp Kilmer, NJ in the August-September 1944 timeframe; shipped out for Europe; and landed at Cardiff, England.

   b.  He states he was assigned to the 1270th Engineer Combat Battalion,
16th Corps, 3rd Army.  While bivouacked in a forest area near the Rhine River in Germany, he was making a leather sheath for his knife.  He was cutting toward the left heel of his left hand, the knife slipped, and the knife cut into the base of his left thumb.  He went to the aid station to receive medical treatment and the cut was bandaged.  The only evidence of this incident is the scar that remains. He adds he is not certain if this qualifies him for award of the Purple Heart, but he submits this information for consideration by the Board.

   c.  He states in August 1945 his unit moved through France and he was then sent back to Newport News, VA.  He was eventually sent to Fort Devens, MA where he worked as a clerk typist.  He was discharged on 28 February 1946.

   d.  He states he enlisted on 1 May 1946 for a period of 1 year and 90 days. He was reassigned to Fort Dix, NJ where he worked as a clerk typist until he was discharged on 15 May 1947.

   e.  He states at the time of his discharge he was interviewed and one of the topics was enlisting in the USAR.  At the discharge ceremony, those who wanted to enlist in the USAR were told to stand, raise their right hand, and take the oath of enlistment, which he did.  He adds, "[h]ere it is today and I have made several efforts to get someone to recognize my enlistment, as I understood that I was in the enlisted reserve corps and all of this time qualified me for retirement (at this writing, that would be from June 1943 to December 2009 - 66 years)."

   f.  He states at the time of his discharge he was serving in the rank of Technician Fourth Grade.  He also states he was advised that he would be notified when to report for duty.  He states that, except for a short period of time, he always lived in Salt Lake City, UT "so I would have been very easy to locate."  

   g.  He states he attended the University of Utah and he received a Bachelor of Science degree in Political Science in June 1951.  He graduated Law School in June 1953 with a Bachelor of Laws degree, which was later increased to a Juris Doctor degree.  He adds he was admitted to the Utah State Bar, began practicing law in January 1954, and continued to practice law for the next 40 years.

   h.  He states he joined the Utah State Guard, which was later changed by the Utah State Legislature to the Utah State Defense Force (so as not to be confused with the Utah National Guard).  He adds he entered as an LTC in the Staff Judge Advocate General's (JAG) Corps and he was promoted to COL in November 1988.  He was interviewed for the opportunity to become the commander with promotion to BG; however, he elected to retire from the Utah State Defense Force in February 1990.  He adds that he began drawing Social Security benefits at the age of 65.

   i.  He states his civilian education, service as an officer and attorney in the JAG Corps, and the additional training he completed during his service over the 


course of 20 years qualifies him for promotion to COL in the USAR and retirement.  He concludes, "I long ago should have been given that opportunity, and I could never find out who to contact in order to enter into the program.  I feel that all of my service qualifies me for such a retirement opportunity or entry into such a program [to qualify for promotion and retirement]."

   j.  He states the back of his discharge certificate shows that his length of service in the reserve (active or inactive) is counted as time of eligibility for retirement and longevity pay calculations.  Consequently, he believes he qualified for retirement from the USAR.  He adds all of his attempts to contact someone concerning his reserve service over the past several decades were unsuccessful.

3.  The applicant provides copies of documents that he identifies as Exhibits numbered 1 through 27.

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 service records are not available to the Board for review.  A fire destroyed approximately 18 million service members' records at the National Personnel Records Center (NPRC) 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, along with the documentation the applicant provides, for the Board to conduct a fair and impartial review of this case.

3.  A WD AGO Form 53-55 (Enlisted Record and Report of Separation - Honorable Discharge), for the period ending 28 February 1946, shows the applicant enlisted in the Enlisted Reserve Corps (ERC) of the Army of the United States (AUS) on 21 June 1943 and he entered active service on 12 January 


1944 at Salt Lake City.  He was honorably discharged at Fort Devens on           28 February 1946 under the provisions of Army Regulation 615-365 (Enlisted Personnel - Discharge - Convenience of Government) for the convenience of the government based on demobilization.  It also shows in:

	a.  item 3 (Grade) the entry "Cpl" [Corporal];

	b.  item 33 (Decorations and Citations) the Army Good Conduct Medal, American Campaign Medal, European-African-Middle Eastern Campaign Medal with two bronze service stars, and the World War II Victory Medal;

	c.  item 34 (Wounds Received In Action) the entry "None";

	d.  item 37 (Total Length of Service) the entry 1 year, 3 months, and 4 days of continental service and 10 months and 12 days of foreign service;

   e.  item 38 (Highest Grade Held) the entry "Cpl";

   f.  item 39 (Prior Service) the entry "None";

	g.  item 43 (Longevity for Pay Purposes) the entry 2 years, 8 months, and
7 days of total service for pay purposes; and

   h.  item 55 (Remarks) that the applicant was:

		(1)  called to active duty on 12 January 1944 from the ERC; and

		(2)  honorably discharged from the AUS as a Temporary Grade CPL to enlist in the Regular Army (RA).

4.  The AUS Honorable Discharge Certificate on the reverse side of this WD AGO Form 53-55 shows he was honorably discharged on 28 February 1946.  It also shows he "reenlisted" in the RA for a period of 1 year and 90 days in the grade of CPL at the Post Recruiting Office, Fort Devens, on 1 March 1946.

5.  A WD AGO Form 53-55 shows the applicant enlisted and entered active duty in the RA on 1 March 1946 at Fort Devens.  He was honorably discharged at the Separation Center, Fort Dix on 15 May 1947, under the provisions of Army Regulation 615-365 for the convenience of the government.  It also shows in:

	a.  item 3 the entry "T/4" [Technician Fourth Grade] and "29 August 1946";


	b.  item 33 the World War II Victory Medal and Army of Occupation Medal;

	c.  item 34 the entry "None";

	d.  item 37 that he completed 1 year, 2 months, and 15 days of continental service and no foreign service;

   e.  item 38 the entry "T/4";

   f.  item 39 the entry "2 8 7 [2 years, 8 months, and 7 days] AUS"; and

	g.  item 43 that he completed 3 years, 10 months, and 22 days of total service for pay purposes.

6.  The AUS Honorable Discharge Certificate on the reverse side of this WD AGO Form 53-55 shows the applicant was honorably discharged on 15 May 1947 in the grade of Technician Fourth Grade.

7.  A National Archives and Records Administration (NA) Form 13038 (Certification of Military Service), issued on 10 October 2002, shows the applicant was a member of the RA from 12 January 1944 to 15 May 1947 and that he was honorably discharged in the rank of Technician Fourth Grade.

8.  There is no evidence in the available military service records that show the applicant was injured or wounded in action as a result of a hostile act of the armed enemy, that such injury or wound required treatment by medical personnel, and/or that the medical treatment for the wound or injury received in action was made a matter of official record.  There is also no evidence the applicant was awarded the Purple Heart.

9.  There is no evidence in the available military service records that show the applicant was advanced or promoted to any grade higher than Technician Fourth Grade.

10.  There is no evidence in the available military service records that show the applicant enlisted or took an oath of office to serve in the AUS, RA, ERC, USAR, or Army National Guard of the United States (ARNGUS) in either an enlisted or officer status subsequent to 15 May 1947.

11.  In support of his application, the applicant provides the following documents:

   a.  A copy of his transcripts from the Office of the Registrar, University of Utah, Salt Lake City, that show the applicant received a Bachelor of Science degree in June 1951, Bachelor of Laws degree in June 1953, and Juris Doctor degree in June 1967.

   b.  A WD AGO Form 53-55, issued on 28 February 1946.

   c.  Headquarters 1270th Engineer Combat Battalion, Camp Chaffee, AR, Special Orders Number 28, dated 2 June 1944, that shows the applicant was promoted from private to CPL (Temporary).

   d.  An application for the U.S. Military Academy (USMA), dated 1 July 1944, that shows the applicant requested selection as a candidate for the USMA; his detachment commander approved his request; and forwarded the request to the Commanding Officer, 1270th Engineer Combat Battalion.

   e.  A WD AGO Form 8-117 (Immunization Register) that shows the applicant's immunizations during the period 15 January 1944 to 15 April 1947.

   f.  A WD AGO Form 53-55, issued on 15 May 1947.

   g.  A WD AGO Form 100 (Separation Qualification Record) that shows the applicant entered into active service on 1 March 1946 and he was separated on 15 May 1947 in the grade of Technician Fourth Grade.

   h.  A letter from the applicant to the NPRC, dated 20 November 2003.  The applicant states he was discharged in 1947, enlisted in the Army Reserve, took the Oath of Allegiance, and signed a small card.  He adds there is a possibility that these records may have been sent to Fort Monmouth, NJ.

   i.  A letter from an Archives Technician, NPRC, to the applicant, dated
26 December 2003, that informed the applicant, if his records were at the NPRC on 12 July 1973, it would have been in the area that suffered the most damage in the fire on that date and may have been destroyed.

   j.  A certificate that shows the University of Utah conferred on the applicant the Degree of Bachelor of Laws on 9 June 1953.

   k.  A certificate that shows the University of Utah, College of Law, conferred on the applicant the Degree of Juris Doctor on 9 June 1967.

   l.  A certificate that shows the applicant was honorably discharged from the Utah State Defense Force on 10 February 1990.

   m.  A plaque presented to the applicant on 17 March 1990 for dedicated service in the Utah State Defense.

   n.  A certificate that shows the applicant was appointed in the rank of COL in the Utah State Guard on 1 February 1986 by the Commanding General, Utah State Guard.

   o.  A certificate that shows the applicant was appointed in the rank of COL in the Utah State Defense on 11 November 1988 by the Governor of the State of Utah.

   p.  Identification cards and a birth certificate pertaining to the applicant.

   q.  A Salt Lake City High Schools, South High School Diploma, issued to the applicant on 3 June 1943.

   r.  A Junior ROTC certificate that shows the applicant was appointed as a second lieutenant in the South High School Battalion of Cadets on 1 October 1942 and that this commission was to continue in force during the school year.

   s.  A Locator List of the Utah State Guard, dated 16 February 1985, and Officer Personnel List, undated, that show the applicant was serving in the rank of LTC as the Staff Judge Advocate.

   t.  A State of Utah, Judicial Department, Attorney's Oath, executed by the applicant on 11 January 1954.

   u.  A Supreme Court of Utah, State of Utah certificate, dated 11 January 1954, admitting the applicant to practice as an Attorney and Counselor at Law in the Supreme Court of the State of Utah.

   v.  An American Bar Association, Certificate of Membership, issued to the applicant on the 1st day of [January] 1959.

   w.  A United States of America, District of Utah certificate, issued on
11 January 1954, admitting the applicant to practice as an Attorney and Counselor, Solicitor, Advocate, and Proctor of the District Court of Utah.

   x.  A United States of America, United States Court of Appeals certificate, issued on 25 July 1962, admitting the applicant to practice as an Attorney and Counselor of the United States Court of Appeals for the Tenth Circuit.

12.  Army Regulation 600-8-22 (Military Awards) provides the policy, criteria, and administrative instructions concerning military awards and decorations.

	a.  The Purple Heart is awarded to any member who has been wounded or killed in action.  A wound is defined as an injury to any part of the body from an outside force, element, or agent sustained while in action in the face of the armed enemy or as a result of a hostile act of such enemy.  In order to support awarding a member the Purple Heart, it is necessary to establish that the wound for which the award is being made required treatment by medical personnel and the medical treatment for the wound or injury received in action must have been made a matter of official record.

   b.  The regulation also provides examples of injuries or wounds which clearly do not justify award of the Purple Heart and specifically cites, in pertinent part, accidents, to include explosive, aircraft, vehicular, and other accidental wounding not related to or caused by enemy action.

13.  Department of Defense Financial Management Regulation (DoD FMR) 7000.14-R, Volume 7A, chapter 1, governs basic pay.

   a.  Paragraph 0101 (Creditable Service) provides that creditable service periods include active or inactive service in the regular service in the Army, Air Force, Navy, Coast Guard, and Marine Corps; Army, Naval, Marine Corps, Air Force, and Coast Guard Reserve; Army of the United States (service without specification of component); Army National Guard; Army National Guard of the United States; National Guard; National Guard of the United States; Air Force of the United States (service without specification of component); Air National Guard; Air National Guard of the United States; Nurse Corps and Nurse Corps Reserve of the Public Health Service; and Public Health Service and Reserve Corps of the Public Health Service.
   
   b.  Subparagraph 010102 (Service Not Creditable) states, in general, do not use any service that is not listed as creditable service to compute a basic pay date.  This paragraph also lists a few types of service that are not creditable and, in pertinent part, shows that the time an individual was a member of a state, home, or territorial guard is not creditable.  In addition, the time an individual was a member of the inactive National Guard is not creditable.

14.  DoD FMR 7000.14-R, Volume 7B (Retired Pay), chapter 1 (Initial Entitlements - Retirements) governs retired pay.

   a.  Paragraph 0101 (Service Creditable for Retirement Purposes), subparagraph 010101 (General) states a computation of creditable service, for the purpose of retirement, may be required at any time during a member's military career.  A warrant officer or an enlisted member may be retired voluntarily after completion of 20 years of creditable service.  An enlisted member of the Army or Air Force who retires upon completion of 20 years of creditable service becomes a member of the Reserve force.  A commissioned officer may voluntarily be retired after completion of 20 years of active service, at least 10 years of which is active commissioned service.  (The Secretary of the Military Department concerned may reduce the 20 years of creditable service requirement to 15 years for the period beginning October 23, 1992 and ending September 1, 2002.)

   b.  Paragraph 0105 (Rank and Pay Grade), subparagraph 010501 (General Determination), provides that unless entitled to a higher grade under some other provisions of law, those Regular and Reserve members who retire other than for disability will retire in the Regular or Reserve grade they hold on the date of retirement.

DISCUSSION AND CONCLUSIONS:

1.  The applicant's claim to the Purple Heart was carefully considered.

   a.  There is no evidence in the applicant's available military service records to show that he was injured or wounded in action as a result of a hostile act of the armed enemy, that such injury or wound required treatment by medical personnel, and/or that the medical treatment for the wound or injury received in action was made a matter of official record.  Moreover, there are no orders or other evidence that shows the applicant was awarded the Purple Heart.

	b.  The applicant stated that he sustained an injury to his left thumb when he was making a leather sheath for his knife, the knife slipped, and he accidentally cut into the base of his left thumb.

   c.  The evidence of record also shows the criteria for award of the Purple Heart clearly states that injuries or accidental wounding not related to or caused by enemy action do not justify award of the Purple Heart.

   d.  Therefore, the applicant is not entitled to award of the Purple Heart.

2.  The applicant's claim to promotion to LTC, COL, and/or BG in the AUS, RA, ERC, USAR or ARNGUS was carefully considered.

   a.  The evidence of record shows the highest grade the applicant held when he was discharged from the RA on 15 May 1947 was Technician Fourth Grade.
   b.  There is no evidence in the available military service records that shows the applicant was advanced, promoted, or appointed to any grade higher than Technician Fourth Grade in any branch of the United States Army Forces.

   c.  The evidence of record shows the applicant was serving in the rank of LTC in the Utah State Guard on 16 February 1985; he was appointed to the rank of COL in the Utah State Guard on 1 February 1986; and he was subsequently appointed to the rank of COL in the Utah State Defense on 11 November 1988.  However, the applicant provides no evidence that he was appointed or promoted to LTC, COL or BG in the AUS, RA, ERC, USAR, or ARNGUS or that he served in any Federal armed force subsequent to his discharge from the RA on 15 May 1947.

   d.  Therefore, the applicant is not entitled to appointment or promotion to LTC, COL and/or BG in the AUS, RA, ERC, USAR or ARNGUS.

3.  The applicant's claim that he completed or should be credited with completing a sufficient number of qualifying years of military service to retire from the USAR was carefully considered.

   a.  The evidence of record shows the applicant served as a cadet in the rank of first lieutenant in the JROTC program at South High School in Salt Lake City from 1 October 1942 to 3 June 1943.  This service does not qualify as creditable service for retired pay. 

	b.  The evidence of record shows the applicant enlisted in the ERC on
21 June 1943, he entered active duty in the AUS on 12 January 1944, and he was honorably discharged on 28 February 1946.  The evidence of record also shows the applicant enlisted and he entered active duty in the RA on 1 March 1946 and he was honorably discharged on 15 May 1947.  The evidence of record further shows that this service (from 21 June 1943 to 15 May 1947) equates to a total of 3 years, 10 months, and 22 days for pay purposes and qualifies as creditable service for retired pay.

	c.  There is no evidence in the available military records that shows the applicant enlisted or took an oath of office to serve in the AUS, RA, ERC, USAR or ARNGUS in either an enlisted or officer status subsequent to 15 May 1947.

   d.  The evidence of record shows the applicant was serving in the rank of LTC in the Utah State Guard on 16 February 1985 and that he was honorably discharged from the Utah State Defense in the rank of COL on 10 February 1990.

   e.  The governing regulation states the time that an individual is a member of the inactive National Guard, or a member of a state, home, or territorial guard is not creditable service.

   f.  Thus the evidence of record does not support the applicant's contention that he completed, or should be credited with having completed, sufficient creditable service in the United States Armed Forces to qualify for retired pay. Therefore, the applicant is not entitled to correction of his records to show he qualified for retired pay.

4.  In view of all of the foregoing, 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:

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)                                         AR20100017212



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ABCMR Record of Proceedings (cont)                                         AR20100017212



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