IN THE CASE OF:	  

		BOARD DATE:	  3 February 2015

		DOCKET NUMBER:  AR20140010491 


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 records to show his military commission of lieutenant colonel (LTC) that was conferred for service he rendered in Russian-controlled East Berlin in 1974. 

2.  The applicant states, in effect:

	a.  His record is incomplete because it does not reflect the military commission of LTC that the Army conferred upon him for service he rendered in Russian-controlled East Berlin in 1974.  He was employed by the U.S. Drug Enforcement Administration (DEA) in 1974.  In the spring of that year, he was appointed as an Assistant Regional Administrator in the DEA's office in Paris, France.  In the fall of that same year, he was approached by the U.S. Army and asked to assist the Army in a covert operation that required proficiency in German and Spanish.  It involved entering East Berlin, then controlled by the Russians and surrounded by the Berlin Wall.  His assignment was to befriend a Cuban assassin trained by the Russians and to ensure that the Cuban would be at a specific location, at a specific date, and time.

	b.  Because he was entering territory controlled by the Russians, the possibility of his capture was considered.  In order to provide protection should he be captured during the covert operation, he was sworn in as a U.S. Army officer with the rank of LTC before two witnesses.  He was assured that, should he be captured by the Russians during the operation, the Army truthfully could affirm that he was a member of the U.S. military, and therefore should be accorded all protections provided under the Geneva Convention.  He was sworn in before two witnesses and then handed a military identification (ID) card, a copy of which is enclosed.  He was asked to sign the card with his true name, which he did.  He was assured that the record of this rank would be reflected in his official military record.  He is 90 years old, and would like his military record to be complete.  He is not seeking any medals or monetary compensation associated with the military rank of LTC.  The covert operation in which he participated at the request of the U.S. Army occurred in 1974.  Since he is not seeking any medals or monetary compensation in connection with the military commission he received, he did not seek recognition of the commission until last year.

	c.  In August 2013, he sought the assistance of Brigadier General M-----en, Adjutant General, U.S. Army Human Resources Command (HRC), Public Affairs Officer (PAO), Fort Knox, KY in order for the U.S. Army to recognize the military commission of LTC that was conferred for his service in Russian-controlled East Berlin in 1974.  A copy of Brigadier General M-----en investigation into his request is attached and speaks for itself.  Suffice it to say, his investigation was unable to verify any records regarding the military ID card that was issued to him with the rank of LTC.  He suggested that he "contact the U.S. Army Criminal Investigation Command (CID) to inquire if there may be any historical records from the timeframe in question that could validate any contractual obligations from the issuance of the Identification (ID) card."  This suggestion is impossible for him to follow-up, as the Army Liaison Office (ALO) states that "we learned a majority of CID operations are maintained at the local level due to the nature of the work being conducted for a specific area."  The ALO, however, gave no guidance whatsoever on how he might locate the "local" CID office.  Instead, it concluded that "due to the timeframe [Applicant's] support may have happened local office most likely destroyed their files based on Army record holding requirements."

	d.  He wishes to reiterate that the focus of his request for assistance from Brigadier General M-----en was not to validate any "contractual obligations from the issuance of the ID card."  Rather, his only objective was, and is, to have the Army recognize that the military ID card, and the underlying military commission that was conferred on him, was given to him in connection with the work he did for the Army.  It is noteworthy that, had he not received a commission from the U.S. Army, the Geneva Convention would not have protected him in the event of capture, because he was not a member of the U.S. military, at the time.

3.  The applicant provides a letter from ALO, U.S. Army Intelligence and Security Command (INSCOM), a letter from CID, a copy of the ID card, and an email from Brigadier General M-----en. 


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 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 that his records were lost or destroyed in that fire.  However, there were sufficient documents remaining in a reconstructed record for the Board to conduct a fair and impartial review of this case.  

3.  The applicant's WD AGO Form 53-55 (Report of Separation and Record of Service) shows he was inducted into the Army of the United States and he entered active service in Prescott, AZ, on 5 February 1942. 

4.  His WD AGO Form 53-55 shows he served in the European Theater of Operations from 29 February 1944 to 14 September 1945.  He completed 
2 years and 28 days of continental service and 1 year, 6 months, and 28 days of foreign service.  

5.  He was honorably discharged on 29 September 1945.  His WD AGO Form 53-55 also shows in:

* Item 3 (Grade), the entry private first class (PFC)
* Item 31 (Military Qualification and Date), the Marksman Marksmanship Qualification Badge with Rifle Bar
* Item 32 (Battles and Campaigns), he participated in the Normandy, Northern France, Ardennes, Central Europe, and Rhineland campaigns 
* Item 33 (Decorations and Citations), the Good Conduct Medal, European-African-Middle Eastern Campaign Medal, American Defense Service Medal, and World War II Victory Medal 
* Item 38 (Highest Grade Held), PFC

6.  On 27 May 1980, subsequent to his petition to this Board, he was issued a DD Form 215 (Correction to DD Form 214, Certificate of Release or Discharge from Active Duty) that added: 

* American Campaign Medal
* Silver service star to be affixed to his European-African-Middle Eastern Campaign Medal
* World War II Victory Medal
* Army of Occupation Medal
* Marksmanship Qualification Badge with Carbine Bar
* Army Lapel Button
* Bronze Star Medal
* Combat Infantryman Badge

7.  On 31 January 2000, subsequent to his petition to this Board, he was issued a DD Form 215 (Correction to DD Form 214, Certificate of Release or Discharge from Active Duty) that added: 

* American Campaign Medal
* Silver service star to be affixed to his European-African-Middle Eastern Campaign Medal
* World War II Victory Medal
* Army of Occupation Medal
* Marksmanship Qualification Badge with Carbine Bar
* Army Lapel Button
* Bronze Star Medal
* Combat Infantryman Badge
* Purple Heart

8.  There is no indication in his available records that shows he served in the Army beyond 29 September 1945.  There is no record of an application for appointment, acceptance for appointment, appointment memorandum, an oath of office, or any documents related to service as a commissioned officer. 

9.  He provides a Military ID card, issued on 20 November 1974, and shows the rank of LTC, Army of the United States. 

10.  He also provides a letter, dated 13 December 2013, from an Army Liaison Officer at INSCOM.  The officer states: 

	a.  A review was conducted on behalf of [Applicant] regarding potential service credit for a military issued ID card on 20 November 1974 in support of U.S. Army duties.  Upon initial contact with [Applicant] he provided a copy of his DD Form 215 outlining his service for World War II, a verification of employment by the U.S. Department of Justice DEA, and a picture copy of an ID card portraying him as an Army LTC.  Conversations with [Applicant] outlined his desired outcome of the review was to receive credit for the service/rank of LTC.

	b.  INSCOM completed record reviews through classified records holding section at the National Archives and Records Administration (NARA), INSCOM, U.S. Army G-2, and CID.  All reviews were unable to verify any records regarding the ID card he provided.  Based on the information he provided and his service with the DEA it was believed his claim may have been tied to a CID investigation. As a result of the initial CID review INSCOM learned a majority of CID operations are maintained at the local level due to the nature of the work being conducted for a specific area.  Due to the timeframe his support may have happened, the local office most likely destroyed their files based on Army record holding requirements.

	c.  The course of action INSCOM recommends is for [Applicant] to contact CID directly and see if they may have any historical files from the timeframe he mentioned.  Without further details there is no way to validate whether or not the ID card was provided to him simply as a means of support for credibility with the U.S. Army or if there was a contractual obligation tied to it.  Based on lack of findings INSCOM is unable to substantiate his being entitled any benefits other than what was earned while serving from 5 February 1942 to 29 September 1945 with the highest rank being held as PFC.

11.  He also provides a letter, dated 18 July 2014, from CID at Quantico, VA.  A CID official stated this letter is in response to the applicant's Freedom of Information Act (FOIA) request for release of information from the files of CID.  A search of the Army criminal file indexes utilizing the information he provided revealed no files pertaining to the applicant or a covert operation involving entering East Berlin in 1974.  The CID records contain criminal investigations and Military Police reports that are indexed by personal identifiers such as names, social security number, and date of birth.  The retention period for the records at the Crime Records Center is 40 years.  This can be considered a "no record" response from CID.

12.  Army Regulation 15-185 (ABCMR) states the ABCMR considers individual applications that are properly brought before it.  In appropriate cases, it directs or recommends correction of military records to remove an error or injustice.  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.  The Board is not an investigative body.

DISCUSSION AND CONCLUSIONS:

1.  The available evidence shows the applicant served in the Army in an enlisted status from 5 February 1942 to 29 September 1945 during World War II.  The highest rank/grade he held during his military service was that of PFC/E-3. 

2.  Nothing in the records supports his contention that he was appointed as a commissioned office of the Army in the rank of LTC.  Appointments of commissioned officers of the Army are made by the President of the United States, delegated to the Secretary of Defense.  The ID card he provides does not equate to an appointment as a commissioned officer.  

3.  In the absence of an oath of office and an appointment memorandum, there is insufficient evidence to support his request.  Therefore, there is insufficient evidence to grant him relief in this case.

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)                                         AR20140010491



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ABCMR Record of Proceedings (cont)                                         AR20140010491



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