RECORD OF PROCEEDINGS

	IN THE CASE OF:       

	BOARD DATE:            18 November 2003
	DOCKET NUMBER:   AR2003090272

	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. Jessie B. Strickland		Analyst	

The following members, a quorum, were present:

	Mr. John N. Slone		Chairperson	
	Mr. Mark D. Manning		Member	
	Ms. Barbara J. Ellis		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 that his serial number be changed to one that reflects that he was a volunteer and that his rank be changed to sergeant.

2.  The applicant states that he was a volunteer and was assigned a draftee serial number.  He further states that he was performing the duties of an assistant squad leader beginning on 17 October 1944 and should have been promoted to the rank of sergeant. 

3.  The applicant provides altered copies of his report of separation (WD AGO Form 53-55), certificate of honorable discharge, Army Separation Qualification Record, awards orders, a newspaper article indicating that he was wounded, copies of casualty updates, and a copy of a letter dated 17 February 1945 from the commander of the 442nd Infantry indicating that he did not have the authority to promote the applicant.

CONSIDERATION OF EVIDENCE: 

1.  The applicant's military records are not available to the Board for review.  A fire destroyed approximately 18 million service members' records at the National Personnel Records Center in 1973.  It is believed that the applicant's records were lost or destroyed in that fire.  However, the documents provided by the applicant provide sufficient information for the Board to conduct a fair and impartial review of this case.

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.  The available records show that the applicant was inducted on 2 December 1943 and entered active duty in Salt Lake City, Utah on 1 March 1944.  He was assigned a serial number beginning with the numbers "39".  He deployed to the European Theater of Operations (ETO) on 23 August 1944 and was assigned to Company G, 442nd Infantry Regiment for duty as a rifleman.

4.  He was wounded on 20 October 1944, was returned to the United States on 21 December 1944 and was assigned to McCaw General Hospital in Walla Walla, Washington, where he remained until he was honorably discharged in the 

rank of private first class (PFC), on 21 September 1945, with a Certificate of Disability for Discharge.  He had served 3 months and 29 days of foreign service and 1 year, 2 months and 22 days of continental service.  He was awarded the Combat Infantryman Badge, the Purple Heart with one oak leaf cluster, the Distinguished Unit Badge, the Bronze Star Medal and the European-African-Middle Eastern Campaign Medal with two bronze service stars.  The applicant signed the WD AGO Form 53-55 at the time of separation and provided a right thumb print. 

5.  The letter provided by the applicant from the commander of the 2nd Battalion, 442nd Infantry Regiment, is dated 17 February 1945 and is addressed to the applicant at McCaw General Hospital.  The letter informs the applicant that promotions are made by unit commanders and while it is unfortunate that he was not promoted at the time he was performing assistant squad leader duties, the unit headquarters did not have the authority to promote him since he had been transferred from the unit.

6.  Army Regulation 615-30, dated 12 February 1942, provided commanders with the provisions for assigning serial numbers to Soldiers.  It provided, in pertinent part, that the first digit of a serial number would designate the component, ie,      1 – Regular Army, 2 – National Guard and 3 – Inductees.  The second digit would denote the corps area of enlistment.  Utah was in the 9th Corps area.  Personnel inducted in the 9th Corps area were assigned serial numbers 39,000,000 to 39,999,999.  The Army discontinued the use of service numbers on 1 July 1969.

DISCUSSION AND CONCLUSIONS:

1.  Absent evidence to the contrary, the Board must presume that the applicant was assigned the proper serial number at the time he entered the service.

2.  The applicant has provided no evidence to suggest that he should have been assigned a Regular Army serial number.  Furthermore, serial numbers are no longer used and it would be difficult at best to assign him a new serial number 58 years after the fact.

3.  Although the applicant has provided a copy of a letter dated in February 1945, in which his promotion was addressed, the fact remains that the authority to promote him at the time rested with his commanding officer.  While the failure to promote him may have been an administrative oversight, there is no evidence present in this case to suggest that such was the case.

4.  Records show the applicant should have discovered the error or injustice now under consideration on 21 September 1945, the date he separated from active duty.  Therefore, based on the establishment of this Board, 2 January 1947, the time for the applicant to file a request for correction of any error or injustice expired on 2 January 1950.  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

__mdm__  ___js ___  ___be___  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

The Board determined that the evidence presented and the merits of this case are insufficient to warrant the relief requested, the therefore, it would not 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.

		_____John N. Slone______
		        CHAIRPERSON

INDEX

CASE ID	AR2003090272	
SUFFIX		
RECON	YYYYMMDD	
DATE BOARDED	2003/11/18	
TYPE OF DISCHARGE		
DATE OF DISCHARGE		
DISCHARGE AUTHORITY		
DISCHARGE REASON		
BOARD DECISION	DENY	
REVIEW AUTHORITY		
ISSUES         1.  1021	100.0000/ADMIN	
2.		
3.		
4.		
5.		
6.