IN THE CASE OF:	  

		BOARD DATE:	  4 October 2011

		DOCKET NUMBER:  AR20110004499 


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 reconsideration of his previous application for correction of his record to show he held the grade of Technician Third Grade (TEC 3/T-3) instead of Technician Fifth Grade (TEC 5/T-5) at the time of his discharge.

2.  The applicant states, in effect, that he was a "TEC 3" and contends his correct grade is shown on his WD AGO 100 (Separation Qualification Record).  He attributes the incorrect grade of "TEC 5" being entered on his WD AGO Form  53-55 (Enlisted Record and Report of Separation - Honorable Discharge) to administrative error. 

3.  The applicant provides his:

* Honorable Discharge Certificate (the reverse side of his WD AGO Form 53-55)
* WD AGO Form 100
* Written authorization for his Member of Congress to act on his behalf

COUNSEL'S REQUEST, STATEMENT AND EVIDENCE:

1.  The applicant's Congressman requests reconsideration of the applicant's previously denied request.


2.  The Congressman states the applicant is a World War II veteran and that he, his predecessors, and the applicant have attempted to have his discharge document corrected for many years with the assistance of the New York State Division of Veterans Affairs.  He acknowledges there was some confusion in the wording of the applicant's previous requests, but states the applicant has confirmed the following:

* His grade is correctly shown on his WD AGO Form 100 as "TEC 3"
* His grade is incorrectly shown on his DD Form 214 (Certificate of Release or Discharge from Active Duty) [sic WD AGO Form 53-55] as "TEC 5"
* He does not want his WD AGO Form 100 modified, which is correct, but rather his WD AGO Form 53-55
* He is extremely upset over this situation and, due to his advanced age, wants his record to accurately reflect the classification he earned

3.  Counsel provides:

* DA Form 1577 (Authorization for Issuance of Awards)
* DD Form 215 (Correction to DD Form 214)
* DA Form 4980-5 (Bronze Star Medal Certificate)

CONSIDERATION OF EVIDENCE:

1.  Incorporated herein by reference are military records which were summarized in the previous consideration of the applicant's case by the Army Board for Correction of Military Records (ABCMR) initially in Docket Number AC95-05464B, on 23 July 1997 and reconsidered by the ABCMR in Docket Number AC95-05464C, on 16 September 1998.  

2.  The applicant's complete military record is 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 his records were lost or destroyed in that fire.  However, there were sufficient documents on file for the Board to conduct a fair and impartial review of this case.  This case is being considered using reconstructed records, which primarily consist of the applicant's WD AGO Form 53-55, WD AGO Form 100, and a WD Form 372B (Final Payment - Worksheet) obtained from the NPRC located in St. Louis, MO.

3.  The applicant's WD AGO Form 53-55 shows he was inducted into the Army of the United States on 26 February 1943 and he entered active service on 5 March 1943.  He was honorably discharged on 7 January 1946 after completing a total of 2 years, 10 months, and 12 days of active military service.  This form also shows in:

* Item 3 (Grade) he held the grade of "T 5"
* Item 38 (Highest Grade Held) the entry "T 5"
* Item 56 (Signature of Person Being Separated) he reviewed and authenticated this document with his signature at the time of separation

4.  His Honorable Discharge Certificate shows his grade at the time of separation as "Technician Fifth Grade."

5.  The applicant's WD Form 372B shows he was paid as a "T-5" at the time of his discharge.  

6.  Item 3 (Grade) of his WD AGO Form 100 issued to him at the time of his discharge shows his grade as "TEC 3."  The Military Occupational Assignments portion of this form shows he served initially as a private (PVT), then as a private first class (PFC), and finally as a "TEC 5."  There is no indication he ever served as a Technician Fourth Class (TEC 4) or "TEC 3."

7.  His available record is void of orders and he has not provided any orders showing he was promoted to either "TEC 4" or "TEC 3."

8.  Counsel provides the following documents, dated 2 April 1999:

* a DD Form 215 showing the applicant's WD AGO Form 53-55 was corrected to show his entitlement to additional awards and decorations
* a DA Form 1577 showing the applicant was entitled to issuance of additional awards and decorations
* a DA Form 4980-5 showing the applicant was awarded the Bronze Star Medal.  His grade is shown as Technician Fifth Grade on this certificate

9.  The DD Form 214 was not utilized as a report of separation until 1 January 1950.  The document in use at the time of the applicant's discharge was the    WD AGO Form 53-55.

10.  War Department Technical Manual 12-236 (Preparation of Separation Forms), in effect at the time of the applicant's separation, provided the procedures to be followed in the separation of enlisted personnel from active service and described the proper method of execution and disposition of the various forms, records, and reports required.  In pertinent part, this manual 

stipulated that the WD AGO Form 53-55 and WD AGO 100 were to be completed based upon interviewing the Soldier and referring to all available records regarding the period of service to be covered by the forms.  The Technical Manual provided the grade in which the Soldier was serving at the time of separation would be entered in:

* item 3 of the WD AGO Form 53-55
* the standard name line of the WD AGO 100

11.  Army Regulation 15-185 (Army Board for Correction of Military Records) prescribes the policies and procedures for correction of military records by the Secretary of the Army, acting through the ABCMR.  Paragraph 2-9 contains guidance on the burden of proof.  It states, in pertinent part, that the ABCMR begins its consideration of each case with the presumption of administrative regularity, which is that what the Army did was correct.  The ABCMR is not an investigative body and decides cases based on the evidence that is presented in the military records provided and the independent evidence submitted with the application. The applicant has the burden of proving an error or injustice by a preponderance of the evidence.  

DISCUSSION AND CONCLUSIONS:

1.  The applicant's contention that his record should be corrected to show he held the grade of "TEC 3" at the time of his separation instead of "TEC 5" was carefully considered.

2.  His grade appears as "TEC 5" on his official discharge document (WD AGO 53-55) and his final payment worksheet.  He reviewed and authenticated each of these documents with his signature at the time of separation.

3.  Although his WD AGO Form 100 indicates his grade at the time of separation was "TEC 3" it also shows he never served in any grade above "TEC 5."

4.  His available record contains no orders and he has failed to provide any orders or pay documents showing he was promoted to the grade of "TEC 3."

5.  The preponderance of the available evidence indicates the error was made when an erroneous grade was entered in item 3 of the applicant's WD AGO Form 100.  

6.  In absence of evidence to the contrary, the preponderance of evidence in the available records supports presumption of regularity in the personnel records maintenance process.  Therefore, he is not entitled to the requested relief.
7.  This action in no way diminishes the sacrifices made by the applicant in service to our Nation.  He and all Americans should be justifiably proud of his service in arms.

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 to amend the decision of the ABCMR set forth in Docket Number AC95-05464C, dated 23 July 1997.



      _______ _   XXX_______   ___
               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)                                         AR20110004499





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ABCMR Record of Proceedings (cont)                                         AR20110004499



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