IN THE CASE OF:
BOARD DATE: 20 October 2011
DOCKET NUMBER: AR20110008612
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, on behalf of his deceased father (a former service member (FSM)), requests restoration of the FSMs rank from second lieutenant to first lieutenant.
2. The applicant states the FSMs records were destroyed in a fire which has resulted in an inaccurate and incomplete revision of his service data. The applicant received a NA Form 13038 (National Archives and Records Administration Certification of Military Service), dated 13 January 2007, which incorrectly shows the FSMs rank as second lieutenant vice first lieutenant. The applicant's mother passed away in November 2010 and she is interred next to her husband (the FSM). The family desires to have a new single grave marker prepared for their plot and want it to properly reflect the FSM's rank.
3. The applicant provides:
* a self-authored statement
* NA Form 13038
* Certificate of Live Birth
* Passport and Driver License
* Certificate of Hawaiian Birth
* Certificate of Death
* three photographs
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 applicants 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 applicants 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 his 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 special orders and a memorandum.
3. His record contains a NA Form 13038, dated 13 January 2007, which shows the FSM was a member of the Army of the United States from 18 August 1945 to 3 November 1946. It further shows he was honorably relieved from active duty in the grade, rank, or rating of second lieutenant. His date and place of birth were unavailable and he had prior enlisted service from 4 January 1944 through 17 August 1945.
4. The FSMs record contains Special Orders Number 242, Headquarters, Army Personnel Center, Oahu, dated 30 September 1946, which shows his rank as second lieutenant.
5. His record contains a memorandum from the War Department, The Adjutant Generals Office, Washington 25, D.C., dated 12 October 1946, which temporarily promotes him to the rank of first lieutenant.
6. The applicant provides a photograph of the FSMs headstone which rests at the Makawao Veterans Cemetery, Maui, Hawaii. The FSMs headstone is engraved with the rank of first lieutenant.
DISCUSSION AND CONCLUSIONS:
1. The FSMs record contains a document temporarily promoting him from second lieutenant to first lieutenant on 12 October 1946. Upon his death, he was interred at the Makawao Veterans Cemetery with a headstone which shows his rank as first lieutenant. A fire in 1973 destroyed millions of service members records at the National Personnel Records Center and it is believed the FSMs records were among those destroyed. Therefore, it is reasonable to presume there was additional documentary evidence present in 1962 which indicated the FSMs rank as first lieutenant in order to create a headstone of the same rank.
2. In view of the facts and circumstances of this case, it would be appropriate and serve the interest of justice and equity to amend the FSMs NA Form 13038 to show his last grade, rank, or rating as first lieutenant.
BOARD VOTE:
____X____ ___X_____ ___X_____ GRANT FULL RELIEF
________ ________ ________ GRANT PARTIAL RELIEF
________ ________ ________ GRANT FORMAL HEARING
________ ________ ________ DENY APPLICATION
BOARD DETERMINATION/RECOMMENDATION:
The Board determined that the evidence presented was sufficient to warrant a recommendation for relief. As a result, the Board recommends that all Department of the Army records of the individual concerned be corrected by amending the NA Form 13038 to show his last grade, rank, or rating as first lieutenant.
_______ _ 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) AR20110008612
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ABCMR Record of Proceedings (cont) AR20110008612
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