IN THE CASE OF:	   

		BOARD DATE:	  26 May 2015

		DOCKET NUMBER:  AR20140017511 


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 item 22 (Date of Induction) of his WD AGO Form 53 (Enlisted Record and Report of Separation – Honorable Discharge) to show an entry date of 2 October 1946.

2.  The applicant states, in effect, item 23 (Date of Enlistment) of his WD AGO Form 53 shows a date of 5 October 1946.  He was recruited and then enlisted on 1 October 1946 at 17 years of age with parental permission at the Recruitment Center in Lawrence, MA.  He was advised to report on 2 October 1946 at 8:00 a.m. and he did so.  On 2 October 1946, he was transported to Fort Banks, Winthrop, MA and underwent a physical, was administered inoculations, and was sworn in.  On Saturday, 5 October 1946, he was transported to Fort Dix, NJ, which was not the day he first reported for duty.  He is 80 years of age, impoverished, and only now can afford counsel to assist him.

3.  The applicant provides copies of his WD AGO Form 53 and a letter from the Office of Selectmen.

COUNSEL'S REQUEST, STATEMENT AND EVIDENCE:

1.  Counsel requests correction of item 22 of the applicant's WD AGO Form 53 to show a date of induction of 2 October 1946.




2.  Counsel states:

   a.  Correction of his military record is necessary to reverse a decision made by the Moultonborough Town Selectmen to remove the applicant's Veteran's Tax Credit involving his New Hampshire real estate taxes as set forth in the attached letter.  The decision was based on RSA 72:28 (Title V, Taxation, Chapter 72, Persons and Property Liable to Taxation) sections IV(a) and V(b) which states the following:

		(1)  Section IV(a) – "the following persons shall qualify for the standard veteran's tax credit or the optional veterans' tax credit:  Every resident of this state who served not less than 90 days in the armed forces of the United States in any qualifying war or armed conflict listed in this decision and was honorably discharged or an officer honorably separated from service; or spouse of such resident."

		(2)  Section V(b) – "Service in a qualifying war or conflict shall be as follows:  "World War II" between December 7, 1941 and December 11, 1946."

   b.  In this situation, the applicant earned a World War II Victory Medal and an Army of Occupational Medal with Japan Clasp, but the Honorable Discharge inaccurately states he served 88 days in 1946 when he actually served 91 days.  The applicant has been disqualified due to a discrepancy existing regarding the actual date of his admittance into the armed forces which currently needs to be rectified.

   c.  It is important for the Board to understand the seriousness of this problem and the affect it made upon this elderly retiree who exists on a fixed and limited income in a small town in northern New Hampshire.  They are requesting modifying the applicant's official armed forces record to specify the date of his induction as Wednesday, 2 October 1946, which was the actual day he reported for duty and was then sworn into service with the U.S. Army.

3.  Counsel provides copies of a Qualifying Awards for the Veteran's Tax Credit, for Wars or Conflicts after 8 May 1975 information sheet and RSA 72:28, sections IV(a) and V(b).

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 provide in the statute of limitations, the ABCMR has elected to conduct a substantive review of the cases 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 sufficient bases to waive the statute of limitations.

2.  The applicant's complete military records are not available to the Board for review.  A fire destroyed approximately 16 million service members’ records at the National Personnel Records Center in 1973.  It is believed his records were destroyed in that fire.  However, there was sufficient documentation submitted by the applicant for the Board to conduct a fair and impartial review of this case.

3.  The applicant provided a copy of his WD AGO Form 53 which shows he enlisted in the Regular Army (RA) on 5 October 1946 at Fort Banks, MA.  He held military occupational specialty 641 (field lineman).  He was honorably discharged prior to his expiration of term of service on 25 March 1948.  His WD AGO Form 53 lists in:

* Item 22 - No entry
* Item 24 (Date of Entry into Active Service) – 5 October 1946
* Item 33 (Decorations and Citations) - the World War II Victory Medal and Army of Occupational Medal with Japan Clasp
* Item 36 (Service Outside Continental U.S. and Return) – he served in the American Pacific Theater from 11 January 1947 through 28 February 1948
* Item 37 (Total Length of Service) – a total active service credit of 1 year, 5 months, and 21 days for the following:

* Continental Service – 3 months
* Foreign Service – 1 year, 2 months, and 21 days

* Item 35 (Latest Immunization Dates) – December 1947 for smallpox, typhoid, and tetanus

4.  The applicant also provided a copy of a letter, dated 20 August 2009, wherein the Office of Selectmen, Town of Moultonborough, NH, advised him that the Veteran's Tax Credit had been removed from his property.  The removal was due to his service dates not meeting the eligibility requirements and the change would be reflected in the last tax bill of the year.


5.  Counsel provided copies of the following:

   a.  A Qualifying Awards for the Veteran's Tax Credit, for Wars or Conflicts after 8 May 1975 information sheet which listed the medals that would be considered a "theater of operations service medal" after 8 May 1975 for the purposes of qualifying a veteran for the Veterans' Tax Credit in RSA 72:28.

   b.  RSA 72:28, sections IV(a) and V(b).

6.  Department of the Army Technical Manual 12-235 (Enlisted Personnel – Discharge Procedures and Preparation of Separation Forms), in effect at the time, stated the WD AGO Form 24-A (Service Record), WD AGO Form 20 (Soldier's Qualification Card), and WD AGO Form 100 (Separation Qualification Record) would be used as a basis for the preparation of the separation document.  The manual stated:

* Item 22 would list the date of induction if applicable
* Item 23 would list the date of enlistment (date of entry on active duty)

7.  The time and date.com internet site shows the period of service from 5 October 1946 through 25 March 1948 equaled 1 year, 5 months, and 21 days (including the end date.)

DISCUSSION AND CONCLUSIONS:

1.  The applicant and counsel contend that item 22 of the applicant's WD AGO Form 53 should be corrected to show an entry date of 2 October 1946:

   a.  The applicant and counsel contentions were carefully considered.  However, the available evidence shows the applicant enlisted in the RA on 5 October 1946.  There is no documentary evidence, i.e., a Record of Induction, Record of Physical Examination for Induction, and/or Enlistment Record, to support the scenario of his entry in the U.S. Army as he describes it.  The available evidence clearly shows he was not inducted.

   b.  The Board was unable to verify whether he was inducted prior to his enlistment in 1946.  Therefore, there is insufficient evidence to support the requested relief.  He completed 1 year, 5 months, and 21 days of service which is consistent with the period from 5 October 1946 through 25 March 1948.

2.  In making this determination, the applicant and all others concerned should know that this nation in no way diminishes the sacrifices made by him in service to our Nation.  The applicant and all Americans should be justifiably proud of his service in arms.

3.  It is noted that initial immunizations are typically administered during in-processing at the Military Entrance Processing Station, the Initial Entry Training Reception Center, or at the Soldier's first duty station.  His WD AGO Form 53 shows he received the smallpox, typhoid, and tetanus vaccines in December 1947 after his entry into active duty. 

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)                                         AR20140017511





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ABCMR Record of Proceedings (cont)                                         AR20140017511



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