IN THE CASE OF:	  

		BOARD DATE:	  18 October 2012

		DOCKET NUMBER:  AR20120007660 


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) to show the rank of sergeant (SGT) instead of the rank of private first class (PFC). 

2.  The applicant states:

* During the Normandy invasion on 25 July 1944, his lieutenant ordered him to be the new SGT, replacing the shell-shocked SGT
* He was assigned to Company G, 2nd Battalion, 120th Infantry, 30th Infantry Division upon landing at Omaha Beach
* He advanced the squad forward past St. Lo until he was wounded by shrapnel from a German tank
* The medic listed him as a PFC without realizing that he had been upgraded to SGT prior to being wounded

3.  The applicant provides:

* WD AGO Form 53-55
* Honorable Discharge Certificate
* Certificate showing award of the Bronze Star Medal
* Letter from the Republic of France and a diploma




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, the documents the applicant provided were sufficient to conduct a fair and impartial review of this case.  

3.  The applicant's WD AGO Form 53-55 shows he was inducted into the Army of the United States on 16 February 1943 and he entered active duty in Baltimore, MD, on 23 February 1943.  

4.  His WD AGO Form 53-55 also shows he departed the continental United States (CONUS) on 12 February 1944 and arrived in Scotland (European Theater of Operations (ETO)) on 22 February 1944.  He departed the ETO on 14 October 1945 and arrived back in CONUS on 31 October 1945. 

5.  He completed 11 months and 23 days of continental service and 1 year, 8 months, and 20 days of foreign service.  

6.  Item 31 (Military Qualifications and Date) of his WD AGO Form 53-55 shows he was awarded the Combat Infantryman Badge.

7.  Item 32 (Battles and Campaigns) of his WD AGO Form 53-55 shows during his service in World War II, he participated in the Normandy, Ardennes, Rhineland, and Central Europe campaigns.



8.  He was honorably separated on 5 November 1945.  He was issued an Honorable Discharge Certificate that listed his rank as a "PFC."  His WD AGO Form 53-55 shows in:

* item 3 (Grade) - "PFC"
* item 38 (Highest Grade Held) - "PFC" 
* this form also shows he held military occupational specialty 745 (Rifleman) and he was assigned to Company G, 30th Infantry at the time of separation 

9.  He submits a certificate showing he was awarded the Bronze Star Medal for meritorious achievement during World War II.  The certificate listed his rank as "PFC."

10.  He also submits a letter from the Republic of France awarding him a diploma for his efforts in liberating France during World War II. 

11.  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 23 February 1943 to 5 November 1945.  The policy in effect at the time provided for entering the rank a member held on the date of separation in Item 3 and the highest rank a member held in Item 38 of the WD AGO Form 53-55.

2.  The applicant's WD AGO Form 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.  It is possible the applicant performed the duties of an acting SGT during the said period.  However, in the absence of official orders or other documentary evidence confirming appointment or promotion to SGT there is insufficient evidence to correct his WD AGO Form 53-55. 

3.  His Honorable Discharge Certificate also confirms his rank at the time of separation was that of PFC. 

4.  In the absence of evidence to the contrary, it appears his rank was properly entered in his separation documents in accordance with the regulatory policy in effect at the time.  

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)                                         AR20120007660



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ABCMR Record of Proceedings (cont)                                         AR20120007660



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