IN THE CASE OF:
BOARD DATE: 21 April 2015
DOCKET NUMBER: AR20140015928
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, in effect, correction of his WD AGO Form 53-55 (Enlisted Record and Report of Separation Honorable Discharge) to show his rank/pay grade as corporal (CPL)/E-4 vice private first class (PFC)/E-3.
2. The applicant states:
a. His rank of CPL should be reinstated as he feels he was unjustly reduced to PFC for an act that was unwarranted. While in the Army, he volunteered to go on a mission to capture high-ranking German officers in the mountains of Germany. He and nine other Soldiers climbed the mountain, but the officers had escaped. They looked all over the building and he found a wrist watch lying on a table. He took the watch as spoils of war as any other Soldier did during the war.
b. Later, they were told the person who owned the watch wanted it back so he did the right thing and returned it. For his honesty, he was busted from the rank of CPL to PFC. He does not believe he did anything wrong and he would like his rank restored.
3. The applicant provides his WD AGO Form 53-55.
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 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 the applicant's records were lost or destroyed in that fire. However, he provided his WD AGO 53-55 which is sufficient for the Board to conduct a fair and impartial review of this case.
3. His WD AGO Form 53-55 shows he was enlisted in the Regular Army on 19 November 1942 and at the time of his discharge he held military occupational specialty 745 (Rifleman). His last unit of assignment was Company A, 319th Infantry Regiment.
4. He was honorably discharged on 3 December 1945. Item 3 (Grade) of the WD AGO Form 53-55 he was issued shows his rank at the time of discharge was PFC.
5. Item 36 (Service Outside Continental United States (CONUS) and Return) of his WD AGO Form 53-55 shows he departed CONUS on 25 July 1943 and arrived in the European Theater of Operations (ETO) on 30 July 1943. He departed the ETO on 15 November 1945 and arrived in CONUS on 26 November 1945. Item 38 (Highest Grade Held) shows the highest grade he held was CPL.
6. There are no available records that show the basis for his reduction to PFC.
7. 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 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 service.
DISCUSSION AND CONCLUSIONS:
1. The applicant's WD AGO Form 53-55 shows the highest rank that he held while serving on active duty was CPL and the rank that he held at the time of discharge on 3 December 1945 was PFC.
2. His record is void of the facts and circumstances that resulted in his reduction from CPL to PFC, but based on his statement it appears he was reduced under the provisions of the Uniform Code of Military Justice for stealing the personal property of an enemy soldier. Contrary to his contention, it was never acceptable for Soldiers to claim personal property/items belonging to enemy forces as "spoils of war."
3. In the absence of evidence showing otherwise, it must be presumed that his reduction to PFC was properly executed and the rank/grade entered on his WD AGO Form 53-55 was the grade he held when he was discharged.
4. In view of the foregoing, there is an insufficient evidentiary basis for granting 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) AR20140015928
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ABCMR Record of Proceedings (cont) AR20140015928
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