MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:      

	BOARD DATE:           15 NOVEMBER 2001
	DOCKET NUMBER:   AR2001062253

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

	Mr. Carl W. S. Chun		Director	
	Ms. Deborah L. Brantley		Senior Analyst	

  The following members, a quorum, were present:

	Ms. Irene N. Wheelwright 		Chairperson	
	Mr. Stanley Kelley		Member	
	Ms. Karen A. Heinz		Member	

	The Board, established pursuant to authority contained in 10 U.S.C. 1552, convened at the call of the Chairperson on the above date.  In accordance with Army Regulation 15-185, the application and the available military records pertinent to the corrective action requested were reviewed to determine whether the application was filed within the time established by statute, and if not, whether it would be in the interest of justice to waive the failure to timely file.

	The applicant requests correction of military records as stated in the application to the Board and as restated herein.

The Board considered the following evidence:

	Exhibit A - Application for correction of military 
                records
	Exhibit B - Military Personnel Records (including
	            advisory opinion, if any)

APPLICANT REQUESTS:  In effect, that his grade at separation be changed from Private First Class to Staff Sergeant.  He states, in effect, that he was an acting sergeant at the time he was wounded in action.  He notes that because his unit was so heavily involved in battle, there was no time to process paperwork for promotions.  In addition to his self-authored statement, he submits a copy of a letter from a fellow unit member who wrote his (the applicant’s) parents that he was an “acting sergeant” at the time he was wounded.  He also submits an extract from a local newspaper that quotes information from the “buddy” letter.

PURPOSE:  To determine whether the application was submitted within the time limit established by law, and if not, whether it is in the interest of justice to excuse the failure to timely file.

EVIDENCE OF RECORD:  The applicant's military records were likely lost or destroyed during the 1973 fire at the National Personnel Records Center.  Information contained herein was reconstructed from documents provided by the applicant.

The applicant entered active duty on 1 November 1943 and arrived overseas in August 1944.  He was wounded as a result of hostile action on 7 February 1945 and awarded the Purple Heart.  The Western Union telegram, forwarded to the applicant’s mother, indicated that he was a “Private First Class” and that he was seriously wounded in action.

The applicant departed the overseas theater of operations in March 1945 and on 31 October 1945 was honorably discharged with a certificate of disability for discharge.  His WD AGO Form 53-55 (Enlisted Record and Report of Separation), which he authenticated, indicates he was serving as a Private First Class at the time of his separation and that the highest grade he held while on active duty was Private First Class.

Between September 1942 and August 1948 the enlisted grade structure of the Army consisted of seven grades.  Grade 7, the lowest grade, was titled “Private” and the highest grade, Grade 1, was titled “Master Sergeant” or “First Sergeant.” A Private First Class was grade 6 and a Staff Sergeant was grade 3.

There is no evidence, nor has the applicant provided any compelling evidence that he was promoted to Staff Sergeant, three grades above his Private First Class grade, prior to his separation.  The mere fact that an enlisted soldier may have been performing the duties of a higher enlisted grade is not a basis to conclude that he was recommended for or ever promoted to that grade.

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.  Failure to file within 3 years may be excused by a correction board if it finds it would be in the interest of justice to do so.

DISCUSSION:  The alleged error or injustice was, or with reasonable diligence should have been discovered on 31 October 1945, the date he was discharged from active duty and signed his report of separation.  However, in view of the fact that the board was not established until 2 January 1947 the applicant’s 3-year period in which to file an application for correction of military records expired on 
2 January 1950, 3 years from the date the Board was established.

The application is dated 7 September 2001 and the applicant has not explained or otherwise satisfactorily demonstrated by competent evidence that it would be in the interest of justice to excuse the failure to apply within the time allotted.

DETERMINATION:  The subject application was not submitted within the time required.  The applicant has not presented and the records do not contain sufficient justification to conclude that it would be in the interest of justice to grant the relief requested or to excuse the failure to file within the time prescribed by law.  Prior to reaching this determination the Board looked at the applicant's entire file.  It was only after all aspects of his case had been considered and it had been concluded that there was no basis to recommend a correction of his record that the Board considered the statute of limitations.  Had the Board determined that an error or injustice existed it would have recommended relief in spite of the applicant's failure to submit his application within the 3-year time limit.

BOARD VOTE:

________  ________  ________  EXCUSE FAILURE TO TIMELY FILE

________  ________  ________  GRANT FORMAL HEARING

__INW __  __SK ___  __KAH __  CONCUR WITH DETERMINATION

    Carl W. S. Chun
    Director, Army Board for Correction
	                of Military Records

INDEX

CASE ID	AR2001062253	
SUFFIX		
RECON	YYYYMMDD	
DATE BOARDED	20011115	
TYPE OF DISCHARGE	(HD, GD, UOTHC, UD, BCD, DD, UNCHAR)	
DATE OF DISCHARGE	YYYYMMDD	
DISCHARGE AUTHORITY	AR . . . . .  	
DISCHARGE REASON		
BOARD DECISION	DENY	
REVIEW AUTHORITY		
ISSUES         1.	142.00	
2.		
3.		
4.		
5.		
6.