BOARD DATE:	  7 April 2011

		DOCKET NUMBER:  AR20100024052 


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 Item 3 (Grade) of his WD AGO Form 53-55 (Enlisted Record and Report of Separation - Honorable Discharge) to show his grade as sergeant (SGT).  He also requests that he be issued a 
DD Form 215 (Correction to WD AGO Form 53-55) to reflect this change.

2.  He provides no statement or additional evidence.  

COUNSEL'S REQUEST, STATEMENT AND EVIDENCE:

1.  Counsel requests the applicant's separation document be corrected to show his grade as SGT.

2.  Counsel states the applicant was promoted to SGT according to records from the Provost Marshal General's Office and other documentation that are included with his application.  The rank on the applicant's discharge misrepresents the applicant's true rank at the time of discharge.  Counsel states this is the applicant's second request to have his rank corrected on his WD AGO Form 
53-55.  Counsel states the applicant's records were most likely destroyed in the fire at the National Personnel Records Center (NPRC).

3.  Additionally, counsel states the applicant's name is listed on the Provost Marshal General's Office- American Prisoner of War (POW) Information Bureau
Listing and his rank is listed as SGT.  Therefore, it is wrong to deny the veteran his proper rank because of what happened to his records.

4.  Counsel provides:

* Roster for Company B
* Orders for award of the Combat Infantryman Badge
* Provost Marshal General's Office POW Listing
* War Department Form 372A (Final Payment-Work Sheet)
* Applicant's WD AGO Form 53-55
* Home town news release concerning the applicant's POW status

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 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, and documentation submitted by counsel for the Board to conduct a fair and impartial review of this case.

3.  The available evidence shows the applicant was inducted into the Army of the United States on 12 April 1944.  He completed training as a rifleman.  He served overseas in the European Theater of Operations from 13 October 1944 until 12 June 1945.

4.  War Department Form 372A shows the applicant's final pay was based on the rank of corporal (CPL).

5.  The applicant was honorably discharged from active duty, on 4 December 1945, due to the Convenience of the Government.  Item 3 of his WD AGO Form 53-55 shows his rank as CPL.  Item 38 (Highest Grade Held) contains the entry "CPL."
6.  The U.S. National Archives and Records Administration-World War II POW Data File documents records of American POWs during World War II.  Records created between December 1941 and November 1946 lists the applicant as having been captured on 20 December 1944.  His grade at the time of capture is listed a CPL and Germany is listed as the detaining power.  The data file shows the applicant was returned to military control, liberated, or repatriated on 26 June 1945.

7.  On 8 January 2010, the Army Human Resources Command, Military Awards Branch, advised the applicant of his entitlement to the Purple Heart for injuries sustained while a POW during World War II, as well as the POW Medal, two bronze service stars for the European-African-Middle Eastern Theater Campaign Medal, and Presidential Unit Citation.  He was also issued a DD Form 215 adding these awards.

8.  Counsel provides a Provost Marshal General's Office - American POW Information Bureau paper.  This document shows the applicant was reported in the hands of the enemy (Germany) as of December 1945.  The applicant's rank is listed as SGT.

9.  Counsel also provides an article he states appeared in the applicant's home town newspaper.  The article stated the War Department reported the applicant had been missing in action in Luxemburg on 20 December 1944 and was a POW.  The applicant's rank is listed as SGT.

10.  Army Regulation 615-5 (Enlisted Men - Appointment and Reduction of Noncommissioned Officers and Privates First Class), Change No. 6, dated 23 May 1945, provided, in pertinent part, that commanders may waive the requirements of an authorized vacancy to appoint temporarily to the next higher grade any enlisted person below the first pay grade [below master sergeant] who is returned to United States military control from a status of:  (1) internee, 
(2) missing in action, (3) evading capture in enemy held territory, or (4) POW (including those repatriated under the provisions of the Geneva Convention), and who presumably would have been promoted except for his internment, evasion or capture, provided that the circumstances surrounding the individual's loss to the Army of the United States were honorable.

11.  A Letter from the Office of The Adjutant General, dated 24 September 1945, (War Department 383.6 Promotion 21 September 1945), provided a special POW promotion policy.  It stated that upon return to military control all enlisted personnel below the grade of master sergeant who were in a status of POW, evader, or escapee for a period of 18 months or longer and provided the circumstances surrounding their loss to the Army of the United States was honorable, would be considered for promotion of one grade.  Regulations with respect to time in position, time in grade, and position vacancy were waived to the extent necessary to effectuate the forgoing.  

12.  Army Regulation 635-5 (Separation Documents), currently in effect, establishes the standardized policy for preparing and distributing discharge documents.  It directs that, for a Soldier with POW documentation, the entry "PRISONER OF WAR, unit of assignment/country, date of capture and release date," will be entered in the “Remarks” section of the Soldier's discharge document.

DISCUSSION AND CONCLUSIONS:

1.  Counsel's contention that Item 3 of the applicant's WD AGO Form 53-55 should be corrected to show his grade as SGT has been noted.  The documentation provided by counsel was carefully considered.

2.  The available evidence shows the applicant's final payment was based on the grade of corporal (CPL) and he was discharged in that rank.  There is insufficient evidence to show the applicant was promoted to SGT prior to discharge.  Therefore, it is concluded that Item 3 of his WD AGO Form 53-55 is correct in properly showing his rank as CPL.

3.  It is also noted the special World War II POW promotion policy provided only for the promotion of returning POWs who had been held as a POW for 18 months or longer.  The evidence of record confirms the applicant was captured in Germany and held as a POW from 20 December 1944 to on or about June 1945, a period of a little over 6 months.  As a result, it does not appear he qualifies for an automatic promotion under the special World War II POW promotion policy. 

4.  Regulatory guidance shows for a Soldier with POW documentation, the entry "PRISONER OF WAR, unit of assignment/country, and date of capture and release date," will be entered in the “Remarks” section of the Soldier's discharge document.  Evidence shows the applicant's discharge document does not contain this entry.  Based on his status as a POW, award of the POW Medal, and in the interest of fairness, it would be appropriate to add the following entry, "PRISONER OF WAR, Company E, 12th Infantry, 20 December 1944 to June 1945" in the remarks section of his WD AGO Form 53-55.

5.  Evidence shows that the applicant’s records contain an administrative error which does not require action by the Board.  Therefore, administrative correction of the applicant’s records will be accomplished by the Army Review Boards Agency (ARBA) Case Management Division (CMD) as outlined by the Board in paragraph 2 of the BOARD DETERMINATION/RECOMMENDATION section below.

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 s a basis for correction of the records of the individual concerned.

2.  The Board requests that the ARBA, CMD – Promulgation provide administrative relief by adding to Item 55 (Remarks) of the applicant's WD AGO Form 53-55 "PRISONER OF WAR, Company E, 12th Infantry, 20 December 1944 to June 1945" and providing him a document to show this correction.



      _______ _   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)                                         AR20100024052



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ABCMR Record of Proceedings (cont)                                         AR20100024052



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