RECORD OF PROCEEDINGS

	IN THE CASE OF:       

	BOARD DATE:            04 DECEMBER 2003                  
	DOCKET NUMBER:   AR2003090645

	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. Kenneth H. Aucock		Analyst	

  The following members, a quorum, were present:

	Mr Walter T. Morrison		Chairperson	
	Mr. Allen L. Raub		Member	
	Mr. Kenneth W. Lapin		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.  In effect, the applicant requests that his record be corrected to show that he was promoted to first lieutenant and discharged with that rank on 14 November 1953.

2.  The applicant states that he met all the criteria for promotion – two years of service during World War II, combat experience, five years in an active status as a second lieutenant, required military schooling, and a clean record.  He states that his dates of service were from 24 August 1944 to 5 July 1946, and from      15 November 1948 to 14 November 1953.  He states that the Board should consider his application, despite the fact that more than three years has passed since the injustice was discovered, because he had a family and other concerns and the Army today is making efforts to correct mistakes.  This is important only to himself and he appreciates consideration. 

3.  The applicant provides the documents indicated herein.

CONSIDERATION OF EVIDENCE: 

1.  The applicant is requesting correction of an injustice which occurred on           14 November 1953.  The application submitted in this case is dated in April 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.  The applicant's military records were lost or destroyed in the National Personnel Records Center fire of 1973.  Information herein was obtained from the applicant and from other sources.  

4.  The applicant was inducted into the Army on 24 August 1944, served in the European Theater of Operations during World War II, and was discharged with the rank of private first class on 5 July 1946.

5.  On 15 November 1948 the applicant was appointed a second lieutenant in the Chemical Corps.   

6.  On 19 August 1953 the applicant completed the "Twenty" series, Extension Courses of the Chemical Corps School.  
7.  The applicant was honorably discharged from the Army of the United States with the rank of second lieutenant on 14 November 1953.   

8.  In a 22 January 2002 letter to a Member of Congress (MC), the applicant requested assistance in correcting his record to show he was promoted to first lieutenant.  He stated that he was recommended, but never received the promotion.  He provided the MC information on his military service, to include his appointment as a second lieutenant in 1948, his assignment to a chemical mortar battalion in Baltimore, attending drills and summer camp, and his completion of courses necessary for promotion.  He stated that he appeared before a [promotion] board, but was turned down.  He did not understand why he was not promoted.  He had a college degree, attended all required meetings for a first lieutenant from the beginning to his discharge to his fifth year, and met all the requirements for promotion.   

9.  On 29 January 2002 an official of the Office of the Chief of Legislative Liaison (OCLL) informed the MC that the applicant should apply to this Board, using the appropriate form.  On 5 February 2002 the MC so advised the applicant. 

10.  On 16 February 2002 the applicant applied to this Board for relief.  On        17 May 2002 the Chief of the Army Review Boards Agency Support Division at St. Louis informed the applicant that the Board could not rule on his request because his military records were not available – his records were believed lost in the 1973 fire at the National Personnel Records Center.  

11.  In an 11 June 2002 response, the applicant iterated his belief that he should have been promoted, cited his military experience, his completion of extension courses, and the fact that he served in a first lieutenant position for the last two years of his service.

12.  On 20 November 2002 this agency informed the applicant that his records could not be located, and consequently, his application was returned without action.

13.  In response to a November 2002 facsimile from a MC, this agency informed the applicant that the documents that he provided the MC were insufficient for the Board to make a determination on his request, and that the Board would need his Official Military Personnel File or efficiency ratings.  Recommendations for promotion from his former supervisors would help support his case.  He was informed that his request was filed without action.

14.  In response to a 22 April 2003 facsimile from a MC (the source of the applicant's current request to this Board), a member of OCLL informed that official that his inquiry and the applicant's two new documents had been forwarded to this Board.
15.  On 6 May 2003 this agency informed a MC that the documents submitted by the applicant were being forwarded for processing.  

16.  The two documents submitted are a 25 January 2002 statement from a retired lieutenant colonel, who indicated that the applicant served under him, and that while he did not remember the dates of his service, the applicant performed his duties as a platoon leader in a satisfactory, favorable, and efficient manner, and that he supported his efforts to be promoted to first lieutenant; and a copy of a 1 February 2003 statement from another former officer, who indicated that the documents he had showed that the applicant was in Company A of the battalion, while he was in Company C, and at no time was he the applicant's commanding officer, and although they were in the same unit, he had little contact with the applicant, other than socially.  

17.  Army Regulation 135-155, then in effect, provides for the promotion of officers in the Army Reserve in the grade of second lieutenant, and states that each officer who is considered qualified for promotion by promotion authorities will be promoted when he completes 3 years of promotion service regardless of grade vacancy.  

DISCUSSION AND CONCLUSIONS:

1.  The available evidence shows that the applicant completed the necessary service in order to be promoted to first lieutenant.  His former commanding officer stated that the applicant performed his duties satisfactorily and supported his request for relief.  

2.  Lacking, however, is any evidence of any error in the applicant's record, or any injustice done to him.  The applicant himself states that he appeared before a promotion board but was turned down for promotion, an indication that the promotion authority did not deem him qualified for promotion.         

3.  Fifty years have gone by since the applicant was discharged, and other than as indicated herein, the applicant's records are not available.  Without those records and absent any evidence of error or unfairness, there must be a compelling reason to grant the applicant's request.  The applicant, however, has submitted neither probative evidence nor a convincing argument in support of his request.   
   
4.  Records show the applicant should have discovered the error or injustice now under consideration on 14 November 1953; therefore, the time for the applicant to file a request for correction of any error or injustice expired on 14 November 1956.  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

__WTM__  __ALR __  __KWL__  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, and 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.  

		___Walter T. Morrison____
		        CHAIRPERSON

INDEX

CASE ID	AR2003090645	
SUFFIX		
RECON	YYYYMMDD	
DATE BOARDED	20031204	
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.	131.00	
2.		
3.		
4.		
5.		
6.