IN THE CASE OF:
BOARD DATE: 8 January 2013
DOCKET NUMBER: AR20120011431
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 that his WD AGO Form 53-55 (Enlisted Record and Report of Separation Honorable Discharge) be corrected to show in block 38 that the highest grade held was that of a second lieutenant (2LT).
2. The applicant states that he went to officer candidate school (OCS) and performed according to all rules and regulations. He further states that he followed orders and never questioned the Army way of doing things.
3. The applicant provides a one-page statement in support of his application and an article from Wikipedia regarding the town of Berga, Thuringia.
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 applicants 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 applicants failure to timely file. In all other respects, there are insufficient bases to waive the statute of limitations for timely filing.
2. The applicants 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 applicants 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 was inducted on 25 June 1943 and entered active duty at Fort Snelling, Minnesota on 9 July 1943. He completed his training as a clerk typist and departed for the European Theater of Operations (ETO) on 6 December 1944. He was captured by German Forces and interned as a prisoner of war from 9 January to 13 April 1945. He departed the ETO on 14 May 1945 and on 6 September 1945 he was honorably discharged at Fort Logan, Colorado in the rank of corporal with a Certificate of Disability for Discharge. He had served 2 years, 1 month, and 27 days of active service
4. The applicants WD AGO Form 53-55 shows in block 38 that the highest grade he held was Corporal. Block 41 shows that he completed a pre-cadet course at the State College of Washington. However, there is no evidence in the available records to show that he was ever commissioned as a second lieutenant.
5. A Joint Resolution, Public Law 77-252, dated 25 September 1941, provided that, during the present emergency, temporary appointments as officers of the Army of the United States (AUS) could be made without appointing such persons as officers in any particular component of the AUS. It further provided that such appointments could be vacated at any time by the President and, if not sooner vacated, would continue during the present emergency and 6 months thereafter.
6. The editions of Army Regulation 605-10, and changes thereto in effect between 1941 and 1949, implemented Public Law 77-752. The period of an appointment as a commissioned officer without component was specified as the duration of the present emergency and 6 months thereafter, unless sooner terminated. Provisions were made for termination of such an appointment at the discretion of the President. In addition, it was stipulated that, during the present emergency and such further period as the Secretary of War may prescribe, former enlisted men who were discharged to enter on active commissioned service, and who presented themselves for enlistment upon the honorable termination of their officer status, would be entitled to restoration to the enlisted grade held immediately preceding their commissioned service.
DISCUSSION AND CONCLUSIONS:
1. While the applicant is commended for his excellent record of service to his country, the available evidence of record fails to show that he was ever recommended for or was commissioned as a second lieutenant. Accordingly, in the absence of evidence to show that he was ever commissioned or served as a second lieutenant, it must be presumed that what the Army did in his case was correct.
2. In view of the foregoing, there appears to be no error or injustice in this case and no basis for granting the applicant's request
BOARD VOTE:
________ ________ ________ GRANT FULL RELIEF
________ ________ ________ GRANT PARTIAL RELIEF
________ ________ ________ GRANT FORMAL HEARING
____X___ ____X___ ___X__ _ DENY APPLICATION
BOARD DETERMINATION/RECOMMENDATION:
1. 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.
2. The Board wants the applicant and all others concerned to know that this action in no way diminishes the sacrifices made by the applicant in service to the United States during World War II. The applicant and all Americans should be justifiably proud of his service in arms.
_______ _ 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) AR20120011431
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ABCMR Record of Proceedings (cont) AR20120011431
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