IN THE CASE OF:	  

		BOARD DATE:	    5 January 2012

		DOCKET NUMBER:  AR20110014209 


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 WD AGO Form 53-55 (Enlisted Record and Report of Separation – Honorable Discharge) to show his rank as technician fourth grade.

2.  The applicant states due to the military occupational specialty (MOS) he was performing during World War II, he should have been promoted to technician fourth grade.  He trained as a radio operator and completed the course with high grades.  After he landed in England, he should have received a technician fifth grade rating.  However, he was asked to volunteer as a French language interpreter for the battalion.  Two days after landing in France he was taken to his new non-MOS assignment and this duty should have been an automatic upgrade to technician fourth grade.

3.  The applicant provides his WD AGO Form 53-55, War Department Form 372A (Final Payment - Work Sheet), two pages of a final payment record, and a letter.

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 the applicant's records were lost or destroyed in that fire.  However, there were sufficient documents remaining in a reconstructed record for the Board to conduct a fair and impartial review of this case.

3.  The applicant's available records show he was inducted into the Army of the United States on 14 November 1942, entered active duty status in Chicago, IL, on the same date, and he held MOS 776 (Radio Operator).  He was assigned to the 48th Armored Infantry Battalion.  He served in the European Theater of Operations from 14 June 1944 through 28 January 1945. 

4.  On 14 July 1945, he was honorably discharged with a certificate of disability.  He completed 2 years, 8 months, and 1 day of creditable active service.  Item 3 (Grade) of the WD AGO Form 53-55 he was issued shows "PFC (private first class."  Item 38 (Highest Grade Held) of this form shows "PFC." 

5.  His reconstructed record does not contain orders appointing him to technician fifth grade, or technician fourth grade.

6.  The applicant provides a WD Form 372A, dated 14 July 1945, wherein it shows he held the rank of PFC on the date of separation and that his final pay was based on this rank.

7.  The enlisted grade structure of the Army from 1 September 1942 to 1 August 1948, in pertinent part, shows that promotion of enlisted Soldiers progressed from private to PFC, to corporal or technician fifth grade, and then to sergeant or technician fourth grade.

8.  Army Regulation 615-5 (Enlisted Men - Appointment and Reduction of Noncommissioned Officers and Privates First Class), in effect at the time, stated Army commanders could appoint noncommissioned officers and privates, first class within their jurisdiction.  Technicians were noncommissioned officers of the third, fourth, and fifth grades and were appointed for specific duties of a technical or administrative nature.  The instruments of appointment would indicate the specialty for which appointed.  All appointments during the present war would be temporary and instruments of appointments would so indicate, except when necessary reappointments of staff sergeants, sergeants and corporals holding permanent warrants to the corresponding technician grades were made.

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 in an active duty status from 21 November 1942 to 14 July 1945.  There are no orders in his reconstructed record that show he was appointed to technician fourth grade.  

2.  Notwithstanding his sincerity, there is no documentary evidence that shows he was assigned to a specific specialty outside his MOS.  In addition, there was no regulatory requirement for an automatic promotion to technician based on a Soldiers duty assignment.  Appointments to the rank of technician were done through appointment orders.  

3.  His WD AGO 53-55 shows he held the rank of PFC at the time of separation and the highest rank he held while on active duty was PFC.  In the absence of evidence to the contrary, it appears his rank was properly entered on his separation documents in accordance with the regulatory policy in effect at the time.  Therefore, he is not entitled to the 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)                                         AR20110014209



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ABCMR Record of Proceedings (cont)                                         AR20110014209



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