MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:       

	BOARD DATE:            1 October 2002
	DOCKET NUMBER:   AR2002071226

	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	
	Mr. Jessie B. Strickland		Analyst	

The following members, a quorum, were present:

	Mr. Raymond V. O’Connor, Jr.		Chairperson	
	Ms. Margaret K. Patterson		Member	
	Mr. Arthur A. Omartian		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 to authorize a formal hearing, recommend that the records be corrected without a formal hearing, or to deny the application without a formal hearing if it is determined that insufficient relevant evidence has been presented to demonstrate the existence of probable material error or injustice.

	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:  That he be promoted to the rank of major. 

APPLICANT STATES:  In effect, that he was seriously wounded in combat in 1942 and over the next 4 years, spent 14 months in the hospital.  He goes on to state that he was told if he finished the Advanced Infantry Course, he would be eligible for promotion to the next grade.  He completed the course; however, the course was too severe for his condition and before he could be promoted, he was hospitalized again.  He continues by stating that he was placed on limited duty at Camp Beale, California, and was again hospitalized at Oakland Regional Hospital, where he was medically retired as a captain in 1946.  He also states that he signed some promotion documents once, but nothing ever came from it.  He also states that he was commissioned with two other officers who advanced to the ranks of brigadier general and colonel, neither of which were wounded.  He further states that he does not desire the monetary change, but desires it to make his family happy because they think he earned it.   

EVIDENCE OF RECORD:  The applicant's military records show:

He enlisted in the Wisconsin Army National Guard (WIARNG) on 11 September 1933 and advanced to the rank of first sergeant on 4 March 1940.  He was commissioned as a second lieutenant in the WIARNG on 16 August 1940.  He was inducted into Federal Service on 15 October 1940, as an infantry second lieutenant with his WIARNG unit.  It appears that his unit was mobilized to Camps Beauregard, and Livingston in Louisiana, and that he was promoted to the rank of first lieutenant on 29 August 1941.  He and his unit departed the United States for the Southwest Pacific Theater of Operations on 20 April 1942, with him in command of the company.  He was promoted to the rank of captain on 12 September 1942 and was seriously wounded in New Guinea on 5 December 1942.  He was medically evacuated initially to Australia and then to the United States. 

It appears that he was hospitalized from 5 December 1942 until 14 September 1943 and he attended and completed the Infantry Officer Advance Course at Fort Benning, Georgia, from 19 December 1943 to 21 March 1944.  He was transferred to Fort McClellan, Alabama, on 23 March 1944 and was hospitalized again on 11 April 1944.  In July 1944, he was transferred to Camp Beale, California, where he remained until he was retired by reason of physical disability, in the rank of captain, on 13 January 1946.  At the time of his retirement, he had an efficiency index rating of 38.1.

A review of his records failed to show any indication that he was recommended for or was eligible for promotion at the time of his separation.  However, his records contain a message dated 31 January 1962, from the Commanding General of Sixth Army in San Francisco, California, addressed to The Adjutant General of the Army (TAG) requesting verification if the applicant was eligible for promotion to major at the time of his retirement.  The response from TAG indicates that the applicant was properly retired in the highest grade he held while on active duty and that he was not entitled to be retired in a higher grade. 

War Department Circular 140, dated 15 May 1946, provided for the promotion of officers on relief from active duty (also known as terminal leave promotions).  It stated, in pertinent part, that officers who had served 24 months time in grade on active duty as a captain since 16 September 1940 and who attained a minimum efficiency index of 40, were eligible for promotion to the rank of major, coincident with processing for relief from active duty.  Promotions were made on the date of departure from the headquarters announcing the promotion, or on the date of departure from Army hospitals in cases of those officers separated from service by reason of physical disability.  The provisions for terminal leave promotions were terminated on 31 December 1947, for all personnel except those who had obtained the time-in-grade and efficiency index requirements by 30 June 1947.

DISCUSSION:  Considering all the evidence, allegations, and information presented by the applicant, together with the evidence of record, applicable law and regulations, it is concluded:

1.  In order to justify correction of a military record the applicant must show to the satisfaction of the Board, or it must otherwise satisfactorily appear, that the record is in error or unjust.  The applicant has failed to submit evidence that would satisfy this requirement.

2.  The War Department Circular that announced terminal leave promotions was not published until 5 months after he was retired.  While the provisions of the circular did apply to the applicant, he was not eligible for promotion to the rank of major by virtue of not meeting the minimum efficiency index of 40.  Accordingly, he was properly retired in the rank of captain, the highest rank he served in while on active duty.

3.  The Board has noted the applicant’s contentions and while the Board appreciates the applicant’s service and the sacrifices he made for our country, it finds no basis to grant him a promotion that he and others in similar circumstances were not eligible to receive.

4.  In view of the foregoing, there is no basis for granting the applicant's request.

DETERMINATION:  The applicant has failed to submit sufficient relevant evidence to demonstrate the existence of probable error or injustice.

BOARD VOTE:

________  ________  ________  GRANT

________  ________  ________  GRANT FORMAL HEARING

___ao___  ___rvo __  __mkp___  DENY APPLICATION

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

INDEX

CASE ID	AR2002071226	
SUFFIX		
RECON	YYYYMMDD	
DATE BOARDED	YYYYMMDD	
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         1.131.0800	318/TERLVPROM	
2.		
3.		
4.		
5.		
6.