BOARD DATE:	  4 September 2012

		DOCKET NUMBER:  AR20120004020 


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 military service records to show he was promoted to major (MAJ).

2.  The applicant states he was a captain (CPT) assigned to the 403rd Anti-Aircraft Artillery (AAA) Battalion during World War II (WWII).  He participated in five campaigns in North Africa and the European Theater of Operations until the end of WWII on 8 May 1945.  The applicant states in June 1945 he was detailed to the Fifth Army to participate in the theater-wide Mediterranean Theater of Operations, U.S. Army (MTOUSA) as the track team commander.  After the track meet he returned to his unit.  

3.  The applicant states he was informed that eligible CPT's (battery commanders) in the 403rd AAA were promoted to MAJ after the Fifth Army defeated German forces in Italy.  The applicant continues if that was case, he was eligible for promotion to MAJ with two years of honorable service.  The applicant further states he was eligible for promotion after serving 2-3 years in combat. 

4.  The applicant provides:

* a WD AGO Form 53-98 (Military Record and Report of Separation Certificate of Service)
* a California Army National Guard (CAARNG) Commission certificate , dated 4 March 1940
* a letter from the CAARNG, dated 18 March 1943
* Letter Orders 8, issued by Headquarters, Fifth Army, dated 23 June 1945
* Letter Orders 566, issued by Headquarters, Fifth Army, dated 6 August 1945
* Orders AG 200.4/006, issued by the MTOUSA, dated 17 August 1945
* an Army of the United States Certificate of Service, dated 11 February 1946
* an Army of the United States Honorable Discharge Certificate, dated        1 April 1953
* a DA Form 1577 (Authorization for Issuance of Awards), dated                28 November 1984
* a letter to the applicant from an associate, dated 6 January 2004
* a letter addressed to The Adjutant General (TAG) of the U.S. Army, dated 16 August 2011
* a letter addressed to TAG, dated 27 October 2011
* a biography of the applicant's career from 1940 to 1987 detailing his educational and business accomplishments

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 that the applicant’s records were lost or destroyed in that fire.  However, this case is being considered using reconstructed records which primarily consist of his WD AGO Form 53-98 and Letter Orders 8, issued by Headquarters, Fifth Army, dated 23 June 1945.

3.  The applicant had prior service in the CAARNG.  He provided a CAARNG Commission certificate that shows he was commissioned a first lieutenant on      4 March 1940. His WD AGO Form 53-98 shows he entered active duty on           6 September 1941.  The applicant arrived in the North African Theater of Operations assigned to the 403rd AAA Battalion on 29 April 1943.  
4.  Letter Orders 8, issued by Headquarters, Fifth Army, dated 23 June 1945 show the applicant was ordered to temporary duty (TDY) for the purpose of participating in the theater-wide MTOUSA Track Finals.

5.  The applicant departed the North African Theater of Operations on 
15 September 1945.  He arrived in the United States assigned to the 403rd AAA Battalion on 30 September 1945 for demobilization.  

6.  The applicant was released from active duty on 11 February 1946, from the Army of the United States (AUS).  Item 3 (AUS Grade) of his WD AGO Form 
53-98, shows the entry "CAPT."  Item 27 (Military Occupational Specialty and No.) shows the entry "FIELD ARTILLERY BATTERY COMMANDER 1193."  Item 
28 (Battles and Campaigns) shows the applicant participated in five campaigns and item 29 (Decorations and Citations) shows he was awarded:

* Asiatic-Pacific Theater Service Medal
* European-African-Middle Eastern Service Medal
* World War II Victory Medal
* American Defense Service Medal 
* American Service Medal

7.  The applicant's Army of the United States Certificate of Service, dated 
11 February 1946, shows his rank as CPT.

8.  There is no evidence that the applicant was considered and selected by a MAJ Selection Board.

9.  There are no orders available that show the applicant was ever promoted to the rank of MAJ.

10.  War Department Circular 10 dated 11 January 1946 provided for the promotion of officers below the grade of colonel, and not members of the Regular Army, coincident with processing for separation from active duty.  A captain being relieved from active duty was eligible for promotion to major provided he met the criteria of completion of 2 years on active duty subsequent to                16 September 1940, who had an efficiency index of 35 or above, and who had not been promoted while on active duty.

DISCUSSION AND CONCLUSIONS:

1.  The applicant’s request to correct his military service records to show he was promoted to MAJ was carefully considered and it was determined there is insufficient evidence to support his request.
2.  At this late date there is no evidence in the available records and the applicant has not provided evidence that shows he was eligible for promotion to major.  The vast majority of his records are not available, and it cannot be determined what his efficiency index was.  In addition, he was appointed a first lieutenant on 4 March 1940.  He entered active duty on 6 September 1941.  The grade he held upon entry on active duty cannot be determined.  If had been promoted to CPT while on active duty he would not have been eligible for a terminal promotion to MAJ.

3.  In view of the foregoing, there is no basis for granting the applicant's request.

4.  The applicant and all others concerned should know that this action in no way diminishes the sacrifices made by the applicant in his service to our Nation.  The applicant and all Americans should be justifiably proud of his service in arms.

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)                                         AR20120004020



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ABCMR Record of Proceedings (cont)                                         AR20120004020



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