IN THE CASE OF:	  

		BOARD DATE:	    21 September 2011

		DOCKET NUMBER:  AR20110004462 


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 daughter of a deceased former service member (FSM), requests a posthumous restoration of her father’s rank from corporal (CPL) to sergeant (SGT).  

2.  The applicant states that her father had come home on leave when she was born on 4 August 1942.  During childbirth her mother almost died.  Her father was late returning from leave due to the doctor telling him they did not think her mother would live.  She has always blamed herself for her father losing his rank in the service.  Her father remained a patriotic man until the day he died.  He loved his country and said it was his own fault for losing his rank.  Her father served with honor almost continuously from 1936 to 1945.  The only fall from grace was the days he was absent without leave (AWOL) during the time of her birth.  

3.  The applicant also stated that in 1942, one or two houses in the neighborhood had a telephone and few families had cars.  Communication was difficult.  In view of her father’s bravery in major battles of World War II, his many years of service, and the reasons for his absence, it would mean a lot to their family to have their father’s rank of SGT restored to him.  He never received a battlefield promotion and he was never again promoted.

4.  The applicant provides:

* 1939 Honorable Discharge Certificate
* WD AGO Form 181 (Enlisted Record – Regular Army Reserve)
* CPL and SGT promotion certificates
* WD AGO Form 53-55 (Enlisted Record and Report of Separation - Honorable Discharge) 
* 1945 Honorable Discharge Certificate
* WD AGO Form 100 (Separation Qualification Record)
* her birth certificate and her father’s death certificate 

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

3.  The available evidence shows the FSM served with the Coast Artillery in the Philippine Islands from 1936 to 1939.  He enlisted in the Army of the United States (AUS), in the grade of private, on 19 July 1939 and entered active duty on the same day.  He was advanced to CPL on 10 April 1941 and to SGT on 1 June 1941.

4.  The FSM served in Scotland from 8 December 1942 through 5 July 1945.  At the time of his separation, the FSM held military occupational specialty 931 (Truckmaster) and he was assigned to the 3582nd Truck Company.

5.  The FSM was honorably discharged on 12 July 1945.  He was credited with 3 years, 4 months, and 21 days of continental service and 6 days of time lost under Article of War 107.

6.  Item 3 (Grade) of the FSM’s WD AGO Form 53-55 shows his rank as CPL.  Item 38 (Highest Grade Held) of his WD AGO Form 53-55 shows the rank of SGT.  He was also issued an Honorable Discharge Certificate showing his rank as CPL.

7.  The FSM’s WD AGO Form 100 (Separation Qualification Record), dated 12 July 1945, shows his grade as CPL.

DISCUSSION AND CONCLUSIONS:

1.  The applicant's contentions have been noted.  However, the available evidence shows the FSM enlisted in the AUS in the grade of private on 19 July 1939.  He was advanced to CPL and to SGT on 10 April and 1 June 1941, respectively.  He was separated in the rank of CPL.  There is no evidence the FSM was again advanced to or served in the rank of SGT prior to his discharge.  

2.  The specific facts and circumstances surrounding the FSM’s reduction from SGT to CPL are not available to the Board.  There is no available evidence and the applicant has provided insufficient evidence showing her father was unjustly reduced to the grade of CPL prior to his discharge and his reduction was a result of being AWOL.  Therefore, she is not entitled to restoration of her father’s rank and correction of his DD Form 214 to show any rank/grade other than CPL.

3.  To qualify for a posthumous promotion, a Soldier must have been officially recommended or approved for promotion by the promotion authority but unable to accept the promotion because of death in the line of duty.  That is not the case; therefore, the FSM is not entitled to posthumous promotion to SGT.

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)                                         AR20110004462



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ABCMR Record of Proceedings (cont)                                         AR20110004462



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