IN THE CASE OF:	  

		BOARD DATE:  16 July 2013

		DOCKET NUMBER:  AR20120021730 


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 – Honorable Discharge) to show: 

* his rank as sergeant (SGT) vice private first class (PFC)
* award of the Bronze Star Medal

2.  The applicant states:

	a.  He was promoted to the rank of SGT in February 1945 while serving in Europe, but his WD AGO Form 53-55 shows his rank as PFC.  He was informed that his promotion was immediate and official but to expect a delay in the paperwork due to the combat situation.  His promotion was posted, he was issued stripes, and his rank of SGT was consistently acknowledged by his superiors and fellow Soldiers.  When orders pertaining to him were listed on the board, he was listed as SGT.  He assumed the responsibilities of SGT, carried out SGT duties, and had SGT authority.  He tried several times to have his rank corrected on his WD AGO Form 53-55 but was told that it was common for battlefield paperwork to be lost due to combat conditions at the time.

	b.  He was a paratrooper with the 517th Parachute Infantry Combat Attack Team during World War II.  During a unit reunion awhile ago, he was told the entire 517th Parachute Infantry Regiment was awarded the Bronze Star Medal several years after the war was over.  He is now 96 years old and would like his records corrected.

3.  The applicant provides his WD AGO Form 53-55, WD AGO Form 100 (Army Separation Qualification Record), Honorable Discharge Certificate, two military unit membership cards, an identification card, a newspaper article, and a self-authored statement.

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 complete military records are not available 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, there were sufficient documents remaining in a reconstructed record to conduct a fair and impartial review of this case.

3.  The applicant's reconstructed records show he enlisted in the Illinois Army National Guard (ILARNG) on or about 7 August 1940 and he was inducted into the Army of the United States as a member of the ILARNG on 16 September 1940.  He entered active duty on 16 September 1940 and he held military occupational specialty (MOS) 761 (Scout) at the time of his separation and was assigned to Company H, 517th Parachute Infantry Regiment.

4.  His WD AGO Form 53-55 shows he departed the continental United States (CONUS) on 31 January 1945 and he arrived in the European theater of operations (ETO) on 5 February 1945.  He departed the ETO on 10 August 1945 and he arrived in CONUS on 20 August 1945.

5.  The applicant provides a WD AGO Form 100 issued by the Separation Center, Camp Grant, IL, dated 26 October 1945, wherein it shows he served in the rank of PFC in MOS 745 (Rifleman) for 1 year and in MOS 761 for 7 months.

6.  On 26 October 1945, he was honorably released from active duty to the control of the ILARNG at the Separation Center, Camp Grant, IL.  He completed 4 years, 6 months, and 21 days of continental service and 6 months and 20 days of foreign service.

7.  His WD AGO 53-55 shows the following in:

* item 32 (Battles and Campaigns) – he participated in the Central Europe Campaign
* item 33 (Decorations and Citations) – award of one service stripe, one overseas service bar, American Theater Ribbon (now known as the American Campaign Medal), Army Good Conduct Medal, and the European-African-Middle Eastern Theater Ribbon (now known as the European-African-Middle Eastern Campaign Medal) with one bronze battle star
* item 38 (Highest Grade Held) – "TEC 5 [technician fifth grade]"
* item 55 (Remarks) – American Defense Service Ribbon 

8.  His reconstructed record does not contain orders appointing him to TEC 5 or SGT or awarding him the Bronze Star Medal.

9.  The enlisted grade structure of the Army from 1 September 1942 to 1 August 1948 shows, in part, that promotion of enlisted Soldiers progressed from private to PFC, to corporal or TEC 5, and then to sergeant or technician fourth grade.

10.  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 PFC's 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, SGT's, and corporals holding permanent warrants to the corresponding technician grades were made.

11.  War Department Technical Manual 12-236 (Preparation of Separation Forms) in effect at the time provided that the appropriate separation form would be prepared for all enlisted personnel separated from the service by reason of discharge, retirement, release from active duty, or transfer to a Reserve Component.  This manual stated that item 3 of the WD AGO Form 53-55 would show the grade held by the enlisted member at the time of separation and item 38 would show the highest grade held by the enlisted member during the current period of active duty.

12.  Army Regulation 600-8-22 (Military Awards) states the Bronze Star Medal is awarded in time of war for heroism and for meritorious achievement or service, not involving participation in aerial flight, in connection with military operations against an armed enemy, or while engaged n military operations involving conflict with an opposing armed force in which the United States is not a belligerent party.  As with all personal decorations, formal recommendations, approval through the chain of command, and announcement in orders are required.  

13.  Title 10 of the U.S. Code, section 1130 provides the legal authority for consideration of proposals for decorations not previously submitted in timely fashion.  It allows, in effect, that upon the request of a Member of Congress, the Secretary concerned shall review a proposal for the award or presentation of a decoration that is not otherwise authorized to be presented or awarded due to limitations established by law or policy for timely submission of a recommendation for such award or presentation.  Based upon such review, the Secretary shall make a determination as to the merits of approving the award or presentation of the decoration.

14.  The request, with a DA Form 638 (Recommendation for Award), must be submitted through a Member of Congress to the Secretary of the Army at the following agency:  U.S. Army Human Resources Command (USAHRC), ATTN: SGS, 1600 Spearhead Division Avenue, Fort Knox, KY 40122.  The applicant's unit must be clearly identified, along with the period of assignment and the award being recommended.  A narrative of the actions or period for which recognition is being requested must accompany the DA Form 638.  Requests for consideration of awards should be supported by sworn affidavits, eyewitness statements, certificates, and related documents.  Corroborating evidence is best provided by commanders, leaders and fellow Soldiers who had personal knowledge of the circumstances and events relative to the request.  The burden and costs for researching and assembling documentation to support approval of requested awards and decorations rest with the requestor.

DISCUSSION AND CONCLUSIONS:

1.  The evidence of record shows the applicant served in an active duty status from 16 September 1940 to 26 October 1945.  Unfortunately, there are no orders in his reconstructed record that show he was promoted or appointed to SGT.

2.  Notwithstanding his sincerity, his WD AGO 53-55 shows he held the rank of PFC at the time of his separation and the highest rank he held while serving on active duty was TEC 5.  In the absence of evidence to the contrary, it appears his rank was properly entered on his separation documents in accordance with the regulatory policy in effect at the time.

3.  With respect to the Bronze Star Medal, again unfortunately, the evidence of record does not show the applicant was ever awarded this medal, and there is no available evidence to show the applicant’s entire unit was awarded the Bronze Star Medal.  However, while the available evidence is insufficient for awarding the applicant the Bronze Star Medal, this in no way affects his right to pursue his claim for the Bronze Star Medal by submitting a request through his Member of Congress under the provisions of Title 10, U.S. Code, section 1130.

4.  In view of the foregoing, there is insufficient evidence on which to base the requested relief.  

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 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 to know the sacrifices he made in service to our Nation are greatly appreciated.  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)                                         AR20120021730



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ABCMR Record of Proceedings (cont)                                         AR20120021730



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