IN THE CASE OF:
BOARD DATE: 24 April 2014
DOCKET NUMBER: AR20130015472
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) by removing from item 55 (Remarks) the entry indicating he accrued 114 days of lost time or that he be provided an explanation as to why the entry was recorded in his WD AGO Form 53-55.
2. The applicant states he believes his record is inaccurate because he did not lose anytime while he was in the service. He contends he was not aware of the entry in his record. He recalls a confrontation with a c/o (interpreted to mean commanding officer) in February 1943; however, he was ordered to return to his unit and to wait for further review. He continues that he never heard another word or received a record of the incident there after. He resumed combat and he fought in Berlin after the invasion where he landed and deployed to Omaha Beach.
3. The applicant provides no additional evidence.
COUNSEL'S REQUEST, STATEMENT AND EVIDENCE:
Counsel did not provide additional evidence and/or argument.
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 for review. A fire destroyed approximately 18 million service members' records at the National Personnel Records Center in 1973. It is believed that his records were lost or destroyed in that fire. This case is being considered based on his WD AGO Form 53-55.
3. His WD AGO Form 53-55 shows:
a. He was inducted into the Army on 16 February 1943 and he entered active duty on 23 February 1943.
b. He served 5 months and 9 days of continental service and 2 years,
5 months, and 22 days of foreign service.
c. He was honorably discharged on 23 January 1946 for the convenience of the Government upon demobilization.
d. item 55 includes the entry "114 DAYS LOST UNDER AW [ARTICLES OF WAR] 107."
4. Article 107of the Articles of War (Soldiers to Make Good Time Lost) states that every Soldier who deserts the service of the United States or who without proper authority absents himself from his organization, station, or duty for more than 1 day, or who is confined for more than 1 day under sentence, or while awaiting trial and disposition of his case, if the trial results in conviction, or who through the intemperate use of drugs or alcoholic liquor, or through disease the result of his own misconduct, renders himself unable for more than 1 day to perform duty shall be liable to serve, after his return to a full duty status, for such period as shall, with the time he may have served prior to such desertion, unauthorized absence, confinement, or inability to perform duty, amount to the full term of his enlistment.
5. Army Regulation 15-185 (ABCMR), paragraph 2-2c states the ABCMR will decide cases on the evidence of record. It is not an investigative agency. Paragraph 2-9 states the ABCMR begins its consideration of each case with the presumption of administrative regularity. The applicant has the burden of proving an error or injustice by a preponderance of the evidence.
DISCUSSION AND CONCLUSIONS:
1. The applicant contends that his WD AGO Form 53-55 should be corrected by removing from item 55 the entry indicating he accrued 114 days of lost time.
2. Based on the unavailability of the applicant's military records and his failure to provide documentary evidence showing an error or injustice occurred in the preparation of his WD AGO Form 53-55, administrative regularity must be presumed.
3. Based on the forgoing, there is insufficient evidence to grant the requested relief.
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) AR20130015472
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