IN THE CASE OF:	  

		BOARD DATE:	  13 October 2011

		DOCKET NUMBER:  AR20110008254 


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 his rank as first lieutenant.

2.  The applicant states:

* he signed an Office of Strategic Services (OSS) contract that promised him the rank of first lieutenant
* he was given an intelligence quotient (IQ) test, physical exam, 3 months of schooling, and 6 months of Army training
* he fulfilled all the OSS requirements and functioned as an officer on the Ledo Road
* he had an opportunity to be an officer through the Officer Candidate School (OCS), Air Candidates, and V-12 programs, but he was locked into a contract that was not fulfilled
* only an officer OSS-trained could command and teach phone technology
* as a wire chief and specially trained, he was required to continually visit all message centers and this resulted in him having a service connected disability of spinal scoliosis (back swelling)
* the rank of private first class is now a small embarrassment
 
3.  The applicant provides self-authored statements.



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 for review.  A fire destroyed approximately 18 million service members' records at the National Personnel Records Center 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 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 (Enlisted Record and Report of Separation Honorable Discharge), WD AGO Form 100 (Separation Qualification Record), War Department Form 372A (Final Payment – Worksheet), and WD AGO 
Form 165 (Enlistment Record).

3.  The available records show the applicant enlisted in the Reserve Corps of the Army of the United States on 11 December 1942.  He completed training and was awarded military occupational specialties 261 (Wire Chief Telephone) and 650 (Switchboard Operator).  The highest rank he attained while on active duty was private first class.

4.  The applicant's WD AGO Form 53-55, WD AGO Form 100, and War Department Form 372A all show the applicant's rank as private first class.

5.  The applicant's WD AGO Form 165 does not show he signed a contract indicating he would be promoted to first lieutenant.

6.  The applicant's WD AGO Form 53-55, item 39 (Prior Service), shows "None."

7.  The applicant's WD AGO Form 53-55, item 34 (Wounds), shows "None."

8.  The available records do not show the applicant attended OCS or served in the OSS.

9.  The available records do not contain an oath of office or special order appointing, commissioning, or promoting the applicant to the rank of first lieutenant.

10.  The applicant's WD AGO Form 53-55 shows he was honorably discharged under the provisions of Army Regulation 615-365 due to demobilization with the narrative reason for separation of convenience of the government.

11.  The applicant provided a copy of his WD AGO Form 53-55 and self-authored statements describing events during his training and service in the Army.

12.  Public Law 77-252, dated 22 September 1941, provided that "during the present emergency, temporary appointments as officers of the Army of the United States could be made without appointing such persons as officers in any particular component of the Army of the United States."  It further provided that such appointments could be vacated at any time by the President and, if not sooner vacated, would continue "during the present emergency and 6 months thereafter."

13.  The editions of Army Regulation 605-10 (Officers Appointed in the Army – Commissioned Officers) and changes thereto in effect between 1941 and 1949 implemented Public Law 77-252.  Army Regulation 605-10, dated 26 May 1944, provided that enlisted men and warrant officers of the Army who were not graduates of officer candidate schools, or of a school or resident course of instruction recognized by the War Department as qualifying them for a commission and who were not former officers would not be appointed unless:  (1) upon appointment the appointee passed his 30th birthday.  Exceptions could be made where the individual possessed a scarce category of specialized skill in which not enough trained men were available to fill the needs of the armed forces at the time required provided the individual met all other requirements prescribed by regulations; (2) recommendation was accompanied by satisfactory evidence that the individual possessed special ability of a technical or professional nature qualifying him for duty as a commissioned officer in the particular assignment for which he was recommended; (3) his Army general classification test score was 110 or higher; (4) the recommended individual was in the active military service of the United States and had completed more than 4 months' active military service immediately preceding recommendation for appointment; and (5) he was recommended by a board of officers appointed by the regimental or corresponding higher commander for the purpose of conducting an appropriate examination.  When a commander of United States forces outside the continental United States was granted special authority by the War Department to appoint or to recommend the appointment of officers, the qualifications for appointment would be as indicated in the special War Department instructions authorizing the appointments.

DISCUSSION AND CONCLUSIONS:

1.  The applicant's request for correction of his records to show he was promoted to first lieutenant was carefully considered.

2.  Although the applicant states he fulfilled all OSS requirements, signed a contract indicating he would be promoted to first lieutenant, and incurred a service connected disability of spinal scoliosis from working on the Ledo Road, there are no records available to warrant approving the applicant's request for promotion.  The applicant provides insufficient documentary evidence in support of his claim.

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 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 this action in no way diminishes the sacrifices made by him 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)                                         AR20110008254



3


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1

ABCMR Record of Proceedings (cont)                                         AR20110008254



2


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1