RECORD OF PROCEEDINGS

	IN THE CASE OF:  

	BOARD DATE:           3 February 2004
	DOCKET NUMBER:   AR2003088559

	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	
	Ms. Beverly A. Young		Analyst	

  The following members, a quorum, were present:

	Mr. Samuel A. Crumpler		Chairperson	
	Mr. Curtis L. Greenway		Member	
	Ms. Regan K. Smith		Member	

	The applicant and counsel if any, did not appear before the Board.

	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, promotion to the next higher grade as a former prisoner of war (POW) during the Korean War.

2.  The applicant states that he was denied promotion while a POW during the Korean War.

3.  The applicant provides three DD Forms 214 (Report of Transfer or Discharge), a FEC AGO Form 241 (Casualty Report), and a certificate showing his POW status.

CONSIDERATION OF EVIDENCE: 

1.  The applicant is requesting correction of an error which occurred on 28 February 1954.  The application submitted in this case is dated 26 March 2003.  

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 limitation 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.  After having prior service in the Iowa National Guard, the applicant entered the Army of the United States on 14 September 1949.  He was honorably released on 13 September 1950 for immediate reenlistment in the Enlisted Reserve Corps (ERC).

4.  The applicant reenlisted on 14 September 1950.  His WD AGO Form 24 (Service Record) shows he was promoted to the temporary grade of corporal on 25 October 1950.

5.  The applicant provided an undated certificate from the Office of The Adjutant General which states he was captured by the enemy in Korea on 15 February 1951 and was liberated on 18 February 1951.  

6.  The applicant provided a copy of a Casualty Report which shows he was wounded on 15 February 1951 by a missile which penetrated his left leg while he was in a POW status.  

7.  The applicant was released from active duty on 18 January 1952.  Item          3 (Grade-Rate-Rank and Date of Appointment) on his DD Form 214 for the period ending 18 January 1952 shows the entry "Cpl(T) 25 Oct 50."

8.  The applicant entered active duty again on 5 August 1952.  His DD Form   230 (Service Record) shows he was promoted to the temporary grade of sergeant on 18 March 1953.  He continued to serve on active duty until he was retired on 28 February 1954 by reason of permanent disability.

9.  Item 3 (Grade-Rate-Rank and Date of Appointment) on the applicant's 
DD Form 214 for the period ending 28 February 1954 shows the entry "Sgt(T) 
18 Mar 53."

10.  Special Regulation 615-25-50, in effect at that time, prescribed the policy and procedures for promotions during periods of rapid expansion of enlisted personnel.  Paragraph 8 applied to promotion of POWs, internees, or personnel evading or escaping capture.  It stated that any individual in a promotable status, who had been a POW or internee, or who had remained at large while escaping or evading capture for a period of more than six months may, upon return to military control, be promoted to that grade, if any, to which he might have been promoted had he not been absent.

DISCUSSION AND CONCLUSIONS:

1.  The evidence of record shows the applicant was a POW from 15 February 1951 to 18 February 1951, a period of three days.

2.  There is no evidence which shows the applicant was in a promotable status prior to his POW status.

3.  Based on the regulation in effect at the time, the applicant had to be in a POW status for more than six months and to have been in a promotable status prior to becoming a POW in order to be promoted to the next higher grade.

4.  Records show the applicant should have discovered the alleged error or injustice now under consideration on 28 February 1954; therefore, the time for the applicant to file a request for correction of any error or injustice expired on 27 February 1957.  However, 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 file in this case.

BOARD VOTE:

________  ________  ________  GRANT RELIEF 

________  ________  ________  GRANT FORMAL HEARING

SAC_____  CLG_____  RKS_____  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.

		Samuel A. Crumpler____
		        CHAIRPERSON

INDEX

CASE ID	AR2003088559	
SUFFIX		
RECON	YYYYMMDD	
DATE BOARDED	20040203	
TYPE OF DISCHARGE	(HD, GD, UOTHC, UD, BCD, DD, UNCHAR)	
DATE OF DISCHARGE	YYYYMMDD	
DISCHARGE AUTHORITY	AR . . . . .  	
DISCHARGE REASON		
BOARD DECISION	DENY	
REVIEW AUTHORITY	Mr. Chun	
ISSUES         1.	131.0000	
2.		
3.		
4.		
5.		
6.