IN THE CASE OF:
BOARD DATE: 23 June 2015
DOCKET NUMBER: AR20140019668
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 his grade be changed to technician 4 (TEC 4)/grade 4 instead of TEC 5/grade 5 on his WD AGO Form 53-55 (Enlisted Record and Report of Separation, Honorable Discharge) with a date of separation of
16 August 1946.
2. The applicant states during the period of his service TEC 4 was a higher rank than TEC 5.
3. The applicant provides his WD AGO Form 53-55 with a date of separation of 16 August 1946.
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. His military service 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. The only document available is the WD AGO Form 53-55 provided by the applicant.
3. On 21 April 1945, he was inducted into the Army of the United States and entered active duty on the same date. He served in the American Theater of Operations from 23 December 1945 to 8 July 1946.
4. On 16 August 1946, he was honorably discharged. Entries on his WD AGO Form 53-55 show in:
* item 3 (Grade) - "TEC 5 APR 46"
* item 38 (Highest Grade Held) - "TEC 5"
5. There are no available records showing he was promoted to TEC 4.
6. During the period of his service the highest enlisted grade was grade 1 - master sergeant or 1st sergeant and the lowest enlisted grade was grade 7 - private.
7. Technical Manual 12-235 (Discharge Procedures and Preparation of Separation Forms), in effect at the time, provides that the grade held at the time of separation and the date of rank or appointment will be entered in Item 3 of the WD AGO Form 53-55.
8. Army Regulation 15-185 (ABCMR) prescribes the policies and procedures for correction of military records by the Secretary of the Army, acting through the ABCMR. The regulation provides that 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. During his period of service TEC 4 was one grade higher than TEC 5.
2. Item 3 of his WD AGO Form 53-55 shows his grade as TEC 5 at the time of his separation and that he was promoted to that grade in April 1946. Item 38 shows that the highest grade he held was TEC 5.
3. His military personnel records are not available due to probability that they were destroyed in the fire at the National Personnel Records Center in 1973.
4. In the absence of any evidence to the contrary, it must be presumed the entry in item 3 of his WD AGO Form 53-55 showing his grade as TEC 5 is correct.
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) AR20140019668
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ABCMR Record of Proceedings (cont) AR20140019668
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