IN THE CASE OF:	  

		BOARD DATE:	  5 April 2011

		DOCKET NUMBER:  AR20100022558 


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 widow of a deceased former service member (FSM), requests correction of item 3 (Grade) of the FSM's WD AGO Form 53-55 (Enlisted Record and Report of Separation - Honorable Discharge) to reinstate his previous rank of staff sergeant (SSG).

2.  She states, in effect, an egregious error on the part of the U.S. Army occurred when the FSM was demoted from SSG to private first class (PFC).  She believes the Army should have sought compensation for the military uniform he allegedly issued to another Soldier. 

3.  She provided:

* the FSM's death certificate
* a temporary certificate of promotion to sergeant (SGT)
* a temporary certificate of promotion to SSG
* the FSM's WD AGO Form 53-55
* the FSM's Honorable Discharge Certificate
* a self-authored letter
* a letter from her granddaughter

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 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 FSM’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.  The FSM's WD AGO Form 53-55 shows he was inducted into the Army of United States and entered active service on 10 October 1941.

4.  She provided two WD AGO Forms 58 [promotion documents] that show the FSM was promoted to the temporary grade of SGT on 2 April 1942 and to the temporary grade of SSG on 1 September 1942.

5.  He was honorably discharged on 17 October 1945, in the permanent rank of PFC.  He completed 4 years and 8 days of total active service.  His WD AGO Form 53-55, also shows in:

* Item 30 (Military Occupational Specialty and Number) the entry Quartermaster Supply Technician, 821

* Item 31 (Military Qualification and Date) the Marksman Marksmanship Qualification Badge with Rifle Bar and the Sharpshooter Marksmanship Qualification Badge with Carbine Bar

* Item 32 (Battles and Campaigns) the Normandy, Northern France, Rhineland, Ardennes, and Central Europe campaigns

* Item 33 (Decorations and Citations) the:

* Purple Heart
* American Defense Service Medal


* European-African-Middle Eastern Theater Campaign Ribbon with 
   bronze service arrowhead

6.  Item 38 (Highest Grade Held) of the FSM's WD AGO Form 53-55 shows the grade SSG.

7.  A copy of his Honorable Discharge Certificate shows his permanent rank as PFC.

8.  In the granddaughter's letter addressed to the Secretary of the Army, she states her grandfather was assigned to Company C, 324th Engineer Battalion during World War II.  At the time he deployed overseas, he was an SSG but he was demoted for what she believes to be a ridiculous matter.  A fellow Soldier, whose name is not known, allegedly misplaced his initial issue of uniforms.  The FSM was in charge of keeping stock of uniforms and upon hearing of the Soldier's plight, he took it upon himself to issue the Soldier an additional uniform.  Unfortunately, word of her grandfather's actions made it up his chain of command and as a result, he was demoted from SSG to PFC, and he remained in that rank until his honorable discharge on 17 October 1945.

9.  She also states it was just recently that she learned of the events surrounding his demotion.  Her grandfather was one of the most important people in her life and she is dismayed to know that his headstone contains the inscription PFC U.S. Army instead of SSG U.S. Army.  She believed a better solution to her grandfather's alleged insubordination would have been to deduct the funds from his Leave and Earnings Statement, as she is aware that this is current procedure when events such as these occur.

10.  In the applicant's self-authored letter, she states she was asked to write the letter as the FSM's next of kin in order to request that the U.S. Army reverse the demotion that was bestowed upon her late husband for what her family believes to be an innocent act of kindness.

11.  Her beliefs, as well as those of her son and granddaughter, are that the demotion to PFC did not fit the so-called crime.  She contends that other service men and women have committed far greater acts that would require a demotion as well as some other type of punishment.  She recalls that upon his discharge and return from the war, he expressed his deepest regret and hurt for losing the rank he worked so hard to achieve.


12.  War Department Technical Manual 12-236 (Preparation of Separation Forms) provides that the appropriate separation form will be prepared for all enlisted personnel separated from the service by reason of discharge, retirement, or release from active duty or transfer to a Reserve Component.  This manual states that item 3 shows the grade held by the enlisted member at the time of separation and item 38 shows the highest grade held by the enlisted member during current period of active duty.  Additionally, item 55 (Remarks) is used for completion of entries specified in War Department Directives.  

DISCUSSION AND CONCLUSIONS:

1.  With respect to the FSM's rank, his sincerity, integrity, and strength of character as attested to by the applicant and the FSM's granddaughter are not in question.  However, there is insufficient evidence to support granting the requested relief.  The FSM's reconstructed record shows he was promoted to the temporary rank of SGT on 2 April 1942 and later promoted to the temporary rank of SSG on 1 September 1942.

2.  His reconstructed record is void of the specific facts and circumstances which led to his demotion to PFC.  However, by his own admission, as told by his widow and his granddaughter; he issued a uniform to a Soldier without the proper authority.  Absent evidence to the contrary, it must be presumed that the punishment was administered in accordance with the prescribed regulations at that time.  Therefore, the entries in items 3 and 38 of his WD AGO Form 53-55 appear to be correct.

3.  In view of the foregoing, there is no basis to grant the 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 FSM in service to our Nation.  The applicant and all Americans should be justifiably proud of the FSM's 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)                                         AR20100022558



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ABCMR Record of Proceedings (cont)                                         AR20100022558



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