IN THE CASE OF:	  

		BOARD DATE:	  9 February 2012 
		DOCKET NUMBER:  AR20110016550 


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 the records of her deceased father, a former service member (FSM), be corrected to show his rank/pay grade as sergeant (SGT) instead of private (PVT).

2.  The applicant states the FSM's WD AGO Form 53 (Enlisted Record and Report of Separation-Honorable Discharge) shows the incorrect rank/pay grade at the time of his discharge.  The rank/pay grade on his WD AGO Form 53 shows he was a PVT when he was a SGT.

3.  The applicant provides: 

* Certificate, dated 23 July 1945
* Affidavit, dated 23 July 1945
* Treatment-Nurse's Notes, dated 21-25 July 1945
* Clinical Record Brief, dated 26 July 1945
* Death Certificate
* Certification of Military Service
* WD AGO Form 53

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 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 the FSM'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/impartial review of this case.

3.  Having had prior enlisted service, the FSM enlisted in the Regular Army and entered active duty on 15 November 1945 in Fort Clayton, Panama Canal Zone.  He held military occupational specialty 345 (Truck Driver Light). 

4.  His records contain a WD Form 371 (Final Payment Roll), dated 15 November 1945.  This form does not list his rank/pay grade.

5.  His records contain a WD Form 372 (Final Payment - Work Sheet), dated 9 July 1948, which lists his rank/pay grade as PVT.

6.  On 9 July 1948, he was honorably discharged.  His WD AGO Form 53 shows he completed 2 years, 7 months, and 20 days of creditable active service.  This form also shows in:

* Item 3 (Grade) the rank/pay grade "PVT" 
* Item 38 (Highest Grade Held) the rank/pay grade "SGT"

7.  His reconstructed record does not contain permanent orders appointing him to the rank/pay grade of SGT.

8.  The applicant submitted several documents wherein his rank/pay grade is referred to as SGT.

9.  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.

10.  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.  

11.  Special Regulation 615-360-1 (Separation of Enlisted Personnel), in effect at the time, established the procedures to be followed in the separation of enlisted personnel from active military service and described the proper method of execution and disposition of the various forms, records, and reports required.  Paragraph 13 of this regulation provided for the preparation of the separation document. This paragraph provided, in pertinent part, that the grade in which the individual was serving at the time of separation, whether the grade was permanent or temporary, and the date of appointment would be entered in Item 3 of the separation document.  

DISCUSSION AND CONCLUSIONS:

1.  There are no orders in the FSM's reconstructed record that show he was permanently appointed to the rank/pay grade SGT.  

2.  His WD AGO 53 shows he held the rank/pay grade of PVT at the time of separation and the highest rank/pay grade he held while on active duty was SGT.  In the absence of evidence to the contrary, it appears his rank/pay grade 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)                                         AR20110016550





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ABCMR Record of Proceedings (cont)                                         AR20110016550



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