RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:       16 March 2006
      DOCKET NUMBER:  AR20050009513


      I certify that hereinafter is recorded the true and complete record
of the proceedings of the Army Board for Correction of Military Records in
the case of the above-named individual.

|     |Mr. Carl W. S. Chun               |     |Director             |
|     |Mr. Luis Almodova                 |     |Senior Analyst       |

      The following members, a quorum, were present:

|     |Mr. James B. Gunlicks             |     |Chairperson          |
|     |Ms. Susan A. Powers               |     |Member               |
|     |Mr. Richard G. Sayre              |     |Member               |

      The Board considered the following evidence:

      Exhibit A - Application for correction of military records.

      Exhibit B - Military Personnel Records (including advisory opinion,
if any).

THE APPLICANT'S REQUEST, STATEMENT, AND EVIDENCE:

1.  The applicant requests, in effect, that the rank shown on his WD AGO
Form 53, Enlisted Record and Report of Separation – Honorable Discharge,
be corrected to show he was separated in the rank of Staff Sergeant, on 1
August 1947, as opposed to the now shown grade of rank of Private.

2.  The applicant states, in effect, that his commanding officer busted him
unjustly.  He busted him to Private and would not give him a reason for the
reduction.  He reenlisted in 1946 and was a Staff Sergeant at that time.
The applicant adds that he didn't think there was anything he could do but
recently, someone told him he could ask to have his records corrected and
his highest grade restored.

3.  The applicant provides nine documents in support of his request,
including a copy of a WD AGO Form 53-55, Enlisted Record and Report of
Separation – Honorable Discharge, with an effective date of separation of
16 January 1946, and a copy of his WD AGO Form 53, with an effective date
of separation of 1 August 1947.

CONSIDERATION OF EVIDENCE:

1.  The applicant is requesting correction of an alleged injustice which
occurred on 1 August 1947.  The application submitted in this case is dated
25 January 2005, but was received for processing on 30 June 2005.

2.  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 allows
the Army Board for Correction of Military Records (ABCMR) to excuse
failure to file within the 3-year statute of limitations if the ABCMR
determines that it would be in the interest of justice to do so.  In this
case, the ABCMR will conduct a review of the merits of the case to
determine if it would be in the interest of justice to excuse the
applicant’s failure to timely file.

3.  The applicant's records were lost or destroyed in the National
Personnel Records Center fire of 1973.  Information herein was obtained
from reconstructed personnel records and information obtained from
alternate sources.
4.  The available records show the applicant was inducted on 28 March 1944;
he entered service at Fort McPherson, Georgia, on the same date.  The
applicant was honorably discharged in Saipan, the Marianas Islands, in the
grade of Staff Sergeant, on 16 January 1946.  The applicant reenlisted on
the following day for 18 months.

5.  The applicant was honorably discharged at Camp Stoneman, California, on
1 August 1947.  Item 3 (Grade), of the applicant's WD AGO Form 53, shows he
was separated in the rank of Private.

6.  Item 38 (Highest Grade Held), of the applicant's WD AGO Form 53, shows
the highest grade held by the applicant was Staff Sergeant.

7.  The applicant was placed on 28 days terminal leave prior to separation
from the Army.  The grade on the authority dated 3 July 1947, for the
applicant's terminal leave, which was signed by the applicant's commander,
shows the applicant's grade as Private.

8.  There is no evidence, and the applicant provided none, to show that his
reduction in grade was unjust or that he regained the grade of rank of
Staff Sergeant before he was separated from the Army on 1 August 1947.

9.  Department of the Army Technical Manual TM 12-236 (Preparation of
Separation Forms) established the policies and procedures for completion
and distribution of separation forms.  This technical manual states, in
pertinent part, that the individual’s grade held at the time of his
separation is entered in Item 3 of the separation form.  An entry to show
the highest grade held by the individual during the current period of
active duty is entered in Item 38 of the separation form.

DISCUSSION AND CONCLUSIONS:

1.  The evidence shows the applicant was serving in the rank of Staff
Sergeant on 17 January 1946, the date of his separation for the purpose of
enlisting in the Regular Army.

2.  The evidence also shows the applicant was serving in the rank of
Private on the date of his separation on 1 August 1947.  The highest grade
of rank the applicant held during the period of service covered by the WD
AGO Form 53, with an effective date of 1 August 1947, is Staff Sergeant.
This was acknowledged in Item 38 of the WD AGO Form 53.

3.  The applicant's service personnel records are not available for review
by the Board.  They are thought to have been lost or destroyed in the St.
Louis fire of 1973.

4.  There is no evidence, and the applicant provided none to show that his
reduction in rank was unjust or that he was restored to the grade of rank
of Staff Sergeant before his separation date.

5.  The applicant provided no evidence that the rank shown on his WD AGO
Form 53, the grade of rank of Private is incorrect.  In this case, in the
absence of compelling evidence to the contrary, Government regularity is
presumed; therefore, the applicant is not entitled to a correction to the
grade of rank shown in item 3 of his WD AGO Form 53, with an effective date
of separation of 1 August 1947.

6.  Records show the applicant should have discovered the alleged error
or injustice now under consideration on 1 August 1947; therefore, the
time for the applicant to file a request for correction of any error or
injustice expired on 31 July 1950.  The applicant did not file within the
3-year statute of limitations and has not provided a compelling
explanation or evidence to show that it would be in the interest of
justice to excuse failure to timely file in this case.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF

________  ________  ________  GRANT PARTIAL RELIEF

________  ________  ________  GRANT FORMAL HEARING

__RGS __  __SAP__  __JBG___  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

1.  The Board determined that 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.  As a result, the Board further determined that there is no evidence
provided which shows that it would be in the interest of justice to
excuse the applicant's failure to timely file this application within the
3-year statute of limitations prescribed by law.  Therefore, there is
insufficient basis to waive the statute of limitations for timely filing
or for correction of the records of the individual concerned.




                                  _____James B. Gunlicks____
                                            CHAIRPERSON



                                    INDEX

|CASE ID                 |AR20050009513                           |
|SUFFIX                  |                                        |
|RECON                   |                                        |
|DATE BOARDED            |20060316                                |
|TYPE OF DISCHARGE       |                                        |
|DATE OF DISCHARGE       |                                        |
|DISCHARGE AUTHORITY     |                                        |
|DISCHARGE REASON        |                                        |
|BOARD DECISION          |DENY                                    |
|REVIEW AUTHORITY        |                                        |
|ISSUES         1.  189  |110.0000                                |
|2.                      |                                        |
|3.                      |                                        |
|4.                      |                                        |
|5.                      |                                        |
|6.                      |                                        |


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