IN THE CASE OF:
BOARD DATE: 30 July 2015
DOCKET NUMBER: AR20150000391
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 that his records be corrected to show he was promoted to the rank of sergeant (SGT).
2. The applicant states that he was promoted to the rank of corporal prior to being captured as a prisoner of war (POW) and should have been promoted to the rank of SGT upon his repatriation. He goes on to state that others were promoted but he was not.
3. The applicant provides a copy of his DD Form 214 (Report of Separation from the Armed Forces of the United States).
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 the applicant's records were lost or destroyed in that fire. However, there were sufficient documents remaining in a reconstructed record to conduct a fair and impartial review of this case.
3. The applicant enlisted in the Regular Army on 24 January 1949 for a period of 3 years. He completed his training and was transferred to Korea for assignment to Company A, 9th Infantry Regiment, 2nd Infantry Division.
4. The applicant was advanced to the rank of private first class (PFC) on 24 March 1950 and was serving in that rank when he was captured by hostile forces on 30 November 1950. He was repatriated on 23 April 1953.
5. On 1 May 1953, he was promoted to the rank of corporal (CPL) with a date of rank of 29 December 1950, the day prior to his capture in accordance with Department of the Army General order Number 39, dated 1 May 1953.
6. On 31 December 1953, he was placed on the Temporary Disability Retired List in the rank of CPL. He had served 4 years, 10 months and 28 days of active service of which 2 years, 9 months and 19 days were foreign service.
7. Department of the Army General order Number 39, dated 1 May 1953 provided, in pertinent part, that enlisted personnel below the grade of master sergeant who on 1 May 1953 are in a missing in action or captured by hostile forces status which commenced prior to 2 April 1953 and who have completed the time in grade requirements for promotion to the next higher grade are automatically promoted effective 1 May 1953 to the temporary grade next above that held on date of entry into a missing in action or captured status. The date of rank will be the day prior to entering into that status.
DISCUSSION AND CONCLUSIONS:
1. The applicants contention that he should be promoted to the rank of SGT based on his being a POW in Korea has been noted and found to lack merit.
2. The applicant was serving in the rank of PFC when he was captured on 30 November 1950 and when he was repatriated he was promoted to the rank of CPL on 1 May 1953 with a date of rank of 29 December 1950 in accordance with directives in effect at the time.
3. Inasmuch as the applicant received a one pay grade promotion following his repatriation, he is not entitled to another promotion to the rank of SGT.
4. Accordingly, there appears to be no basis to grant his request for a promotion to SGT.
BOARD VOTE:
________ ________ ________ GRANT FULL RELIEF
________ ________ ________ GRANT PARTIAL RELIEF
________ ________ ________ GRANT FORMAL HEARING
___x____ ___x____ ____x___ DENY APPLICATION
BOARD DETERMINATION/RECOMMENDATION:
1. 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.
2. The Board wants the applicant and all others concerned to know that this action in no way diminishes the sacrifices made by the applicant in service to the United States during the Korean War. The applicant and all Americans should be justifiably proud of his service in arms.
_______ _ 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) AR20150000391
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ABCMR Record of Proceedings (cont) AR20150000391
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