BOARD DATE:	  26 April 2012

		DOCKET NUMBER:  AR20110020790 


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, a retired chief warrant officer and holder of a legal authorization from the daughter of a deceased former service member (FSM), requests the following:

* correction of the FSM’s DD Form 214 (Report of Separation from the Armed Forces of the United States) to show his rank as a sergeant first class (SFC) instead of private first class (PFC)
* a new bronze plaque for the FSM’s tombstone that shows his rank as SFC

2.  The applicant states, in effect:

* the FSM served 13 years in an active Reserve status and he served as a section chief, in the rank of SFC
* the warrant officer making this request states he was the chief of a firing battery and the FSM was the section chief in the same battery

3.  The applicant provides:

* Special Orders Number 33, dated 16 March 1966
* FSM’s Certificate of Death
* a document titled:  Information Concerning the Burial of Deceased Members and Former Members of the Armed Forces of the United States
* a document titled:  Surviving Spouse, Next of Kin, Legatees and Devisees
* FSM’s Last Will and Testament
* information released under the Freedom of Information Act
* authorization from the FSM’s daughter
* FSM’s DD Form 214

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 that 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 and impartial review of this case.

3.  His DD Form 214 shows he was inducted into the Army of the United States on 28 May 1951 and entered active duty in Toledo, OH, in the rank of "PVT/E-1" on 28 May 1951.  

4.  This form also shows at the time of his separation he held military occupational specialty 3359 (Heavy Equipment Operator) and his most significant duty assignment was Company A, 562nd Engineer Boat Maintenance Battalion.

5.  He completed 1 year, 11 months, and 19 days of creditable active service, of which 1 year, 6 months, and 20 days was foreign service.  He was honorably separated at Fort Custer, MI, on 16 May 1953 and he was transferred to the Enlisted Reserve Corps to complete his remaining service obligation.  Item 3 (Grade, Rate, Rank, and Date of Appointment) of his DD Form 214 shows the entry "PFC (T) (Temporary) 23 May 1952."  

6.  It appears the FSM may have joined the U.S. Army Reserve (USAR) at a later date; however, no record of his USAR service is available for review with the exception of a document submitted by the applicant.
7.  Special Orders Number 53, issued by Headquarters, XX U.S. Army Corps, Fort Hayes, OH, dated 16 March 1966, released the FSM from the 913th Ordnance Company, Lima, OH, and reassigned him to the USAR Control Group (Reinforcement), effective 1 February 1966.  These orders listed his rank as SFC.

8.  War Department Technical Manual 12-236 (Preparation of Separation Forms) and Army Regulation 635-5 (Separation Documents) prescribed the policies and procedures for the preparation of separation forms.  The purpose of the separation document is to provide the veteran with a separation certificate and a military or enlisted record and report of separation.  The DD Form 214 is prepared for all enlisted personnel separated from the service due to discharge, release from active duty or transfer to a Reserve Component, or retired.  Item 3 of the DD Form 214 shows the grade held at the time of separation.

DISCUSSION AND CONCLUSIONS:

1.  The evidence of record shows the FSM served on active duty from 28 May 1951 through 16 May 1953.  At the time of release from active duty, he held the rank of PFC, not SFC.  The DD Form 214 is a record of active service and reflects the active duty rank held by the FSM at the time of separation from active duty.

2.  Although the applicant submitted an order dated March 1966 showing the FSM’s rank as SFC, in the absence of additional evidence it is unclear if he was discharged from the USAR in this rank.  Nevertheless, since he did not hold this rank while on active duty it cannot be listed on his DD Form 214; he was released from active duty in the rank of PFC.

3.  Notwithstanding the FSM's service and/or the applicant’s sincerity, in the absence of official orders promoting the FSM to a grade higher than the grade shown on the DD Form 214 prior to his release from active duty in May 1953 there is insufficient evidence to grant relief in this case.

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)                                         AR20110020790



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ABCMR Record of Proceedings (cont)                                         AR20110020790



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