BOARD DATE:	  8 December 2011

		DOCKET NUMBER:  AR20110011792 


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 correction of his WD AGO Form 53-55 (Enlisted Record and Report of Separation - Honorable Discharge) to show his rank as private first class (PFC) instead of private (PVT).

2.  The applicant states he has proof which shows his last rank as PFC.

3.  The applicant provides:

* his Combat Infantryman Badge orders
* a Western Union telegram 

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 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:

* a WD AGO Form 53-55
* WD AGO Form 100 (Army Separation Qualification Record)
* Army of the United States Honorable Discharge Certificate
* a WD Form 371 (Final Payment Roll) and WD Form 371a (continuation page)

3.  The applicant's WD AGO Form 53-55 shows he was inducted into the Army of the United States in Cleveland, OH and entered active service on 19 September 1944.  At the time of separation, he held military occupational specialty (MOS) 776 (Radio Operator) and he was assigned to Company E, 383d Infantry Regiment.

4.  His WD AGO Form 53-55 also shows he completed 8 months and 1 day of continental service and 4 months and 27 days of foreign service.  He was honorably discharged on 16 October 1945.  Item 3 (Grade) shows "PVT" and item 38 (Highest Grade Held) shows "PVT."  He authenticated this document with his signature at the time of separation.

5.  The block "Grade" of his WD AGO Form 100 shows his grade at the time of separation as "PVT."  Additionally, under the section "Military Specialties" is a single entry that shows he served 8 months in the grade of "PVT” as a rifleman in MOS 745.

6.  The applicant's name is listed on a WD Form 371a, dated 16 October 1945, under the heading “Privates.”

7.  He was issued an Honorable Discharge Certificate, dated 16 October 1945, which listed his rank as "Private."

8.  The applicant provides:

* a copy of General Orders Number 9, issued by Headquarters, 383rd Infantry, San Francisco, CA, dated 15 May 1945, that awarded him the Combat Infantryman Badge and shows his rank as “PFC”


* a copy of a Western Union telegram from The Adjutant General that shows his rank as “PFC”

9.  War Department Technical Manual 12-236 (Preparation of Separation Forms) provides that the appropriate separation form will be prepared for all enlisted personnel separated from the service by reason of discharge, retirement, or release from active duty or transfer to a Reserve Component.  This manual states that item 3 shows the grade held by the enlisted member at the time of separation and item 38 shows the highest grade held by the enlisted member during the current period of active duty.

DISCUSSION AND CONCLUSIONS:

1.  The evidence of record shows the applicant served on active duty from 19 September 1944 through 16 October 1945.  While it may appear the applicant served in a position as a PFC, as shown on his Combat Infantryman Badge orders and Western Union telegram, there is insufficient evidence to show he was ever advanced to PFC or that he held that rank at the time of his separation.

2.  The regulation in effect at the time provided for preparing the WD AGO Form 53-55 to show in Item 3 the rank the member held on the date of separation and in Item 38 and the highest rank the member held.  The applicant's WD AGO Form 53-55 shows he held the rank of PVT at the time of separation which indicates it was also the highest rank he held while on active duty.

3.  His WD Form 371a, WD AGO Form 100, and Honorable Discharge Certificate indicate he held the rank of PVT on the date of separation, and that he received his final pay based on this rank.  Therefore, in the absence of evidence to the contrary, such as advancement orders, it appears his rank was properly entered on his separation documents in accordance with the regulation in effect at the time.

4.  In view of the foregoing, there is an insufficient evidentiary basis for granting the applicant's requested relief.


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)                                         AR20110011792



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ABCMR Record of Proceedings (cont)                                         AR20110011792



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