RECORD OF PROCEEDINGS

	IN THE CASE OF

	BOARD DATE:            December 16, 2003
	DOCKET NUMBER:    AR2003091243

	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. Joseph A. Adriance		Analyst	

  The following members, a quorum, were present:

	Mr. Samuel A. Crumpler		Chairperson	
	Ms. Shirley L. Powell		Member	
	Mr. John N. Slone		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, that his record be corrected to show he held the rank of staff sergeant (SSG) on the date of his separation.  

2.  The applicant states, in effect, that his separation document (WD AGO Form 53-55) should show his rank as SSG as opposed to private (PVT) as is currently listed.  

3.  The applicant provides a copy of his Separation Qualification Record 
(WD AGO Form 100) and a copy of his WD AGO Form 53-55 in support  of his application.  

CONSIDERATION OF EVIDENCE: 

1.  The applicant is requesting correction of a rank error on his separation document that he should have discovered on the date of his separation, 
21 November 1945.  The application submitted in this case is dated 23 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 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.  This case is being considered using reconstructed records, which primarily consist of the applicant’s WD AGO Form 53-55 and WD AGO Form 100.

4.  The WD AGO Form 100 that was prepared on the applicant during his separation processing lists his rank as PVT in Item 3 (Grade).  This indicates that he held that rank on the date of his separation, 21 November 1945.  It also lists all military occupational specialties (MOS) and ranks the applicant served in, which included an entry indicating that he served nine months as a SSG in MOS 745 (Squad Leader).  

5.  The WD AGO 53-55 issued to the applicant on the date of his separation, 
21 November 1945, also shows that the highest grade he held while serving on active duty was SSG, as indicated in Item 38 (Highest Grade Held).  However, Item 3 (Grade) confirms that he held the rank of PVT on the date of his separation.  

6.  The applicant authenticated the WD AGO Form 53-55 on file with his signature in Item 56 (Signature of Person Being Separated) on the date of his separation, 21 November 1945.  

7.  Technical Manual 12-235, which prescribed the policy and procedure for the preparation and distribution of separation documents during the period in question, and contained item by item entry instructions.  These instructions indicated that the highest grade a member held while serving on active duty would be entered in Item 38 (Highest Grade Held).  However, it stipulated that the grade held on the date of separation would be entered in Item 3 (Grade). 

DISCUSSION AND CONCLUSIONS:

1.  The available evidence does not include the facts and circumstances surrounding the applicant’s change in rank from SSG to PVT.  However, it does include a properly constituted WD AGO Form 53-55 that confirms that the highest grade the applicant held while serving on active duty was SSG, but that he held the grade of PVT on the date of his separation from active duty.  

2.  The evidence shows that the applicant authenticated his WD AGO Form 
53-55 with his signature on 21 November 1945, the date of his separation.  This indicates that he verified that the information contained in the separation document, to include the rank listed in Item 3 (Grade), was correct at the time the document was prepared and issued.  

3.  Notwithstanding the applicant’s current assertion that his separation document should list his rank as SSG, the evidence shows that the rank of PVT was properly listed in Item 3 (Grade) and the rank of SSG was properly listed in Item 38 (Highest Grade Held) of his 21 November 1945 WD AGO Form 53-55 in accordance with regulatory policy in effect at the time.  Therefore, there is an insufficient evidentiary basis to support granting the requested relief.   

4.  The records show the applicant should have discovered the error or injustice now under consideration on 21 November 1945, the date of his separation from active duty.  Therefore, based on the date the Board was established, 2 January 1947, the time for the applicant to file a request for correction of any error or injustice expired on 1 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.

BOARD VOTE:

________  ________  ___  GRANT RELIEF 

________  ________  ___  GRANT FORMAL HEARING

__SAC ___JS ___SLP  __  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.  

		Samuel A. Crumpler
		  CHAIRPERSON

INDEX

CASE ID	AR2003091243	
SUFFIX		
RECON		
DATE BOARDED	2003/12/16	
TYPE OF DISCHARGE	HD	
DATE OF DISCHARGE	1945/11/DD	
DISCHARGE AUTHORITY	AR 615-365	
DISCHARGE REASON	Demobilization	
BOARD DECISION	DENY	
REVIEW AUTHORITY		
ISSUES         1.  803	144.9213	
2.		
3.		
4.		
5.		
6.