RECORD OF PROCEEDINGS

	IN THE CASE OF

	BOARD DATE:            15 January 2004                  
	DOCKET NUMBER:    AR2003091305

	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. Klaus P. Schumann		Analyst	

  The following members, a quorum, were present:

	Ms. Margaret K. Patterson		Chairperson	
	Mr. Allen L. Raub		Member	
	Mr. William D. Powers		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 the grade on his separation document (WD AGO Form 53-55) be changed from Private First Class (PFC) to Staff Sergeant (SSG).

2.  The applicant states, in effect, that during his service in World War II he was informed by his immediate superior the he had nominated him for promotion to SSG and assignment as a Squad Leader.  However, the grade of SSG was not properly reflected on his separation document.

3.  The applicant provides, in support of his application, an unsigned and undated letter of support, a copy of a separation qualification record (WD AGO Form 100), a WD AGO Form 53-55, dated 30 April 1946, and an honorable discharge certificate, dated 30 April 1946.

CONSIDERATION OF EVIDENCE: 

1.  The applicant is requesting correction of error which occurred during his active duty service, which ended on 30 April 1946.  The application submitted in this case is dated 8 May 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.  The records available were obtained from alternate sources and show that the applicant entered active duty on 23 August 1944.  They also show that he was trained and served in military occupational specialty (MOS) 745 (Squad Leader).  The records further confirm that he served in the European Theater of Operations (ETO) from 14 January 1945 through 2 July 1945, and that he was honorably separated from active duty on 30 April 1946. 

4.  Item 33 (Decorations and Citations) of the applicant's separation document shows that he was awarded the Good Conduct Medal, American Theater Service Medal, European-African-Middle Eastern Service Ribbon with two bronze service stars, the World War II Victory Ribbon, the Army of Occupation Ribbon (Germany) and one Overseas Service Bar.  Item 31 (Military Qualification and Date) shows that he also received the Combat Infantryman Badge.

5.  The applicant's separation document shows in Item 3 (Grade) that the applicant was a PFC at the time of his separation from the Army on 30 April 1946.  Item 38 (Highest Grade Held) shows that the highest grade the applicant held during his time in military service was PFC.

6.  The applicant's military records contain a final payment work sheet
(WD Form 372A), which indicates that he was paid as a PFC when he was separated from the Army in April 1946.  Further, the applicant's separation qualification record shows that while he was serving in the position of squad leader he held the grade of PFC.

7.  The applicant's military records contain an honorable discharge certificate, dated 30 April 1946, which further shows that he was a PFC when he was separated from the Army

DISCUSSION AND CONCLUSIONS:

1.  The evidence provided by the applicant does not establish a basis to support his contention that he was a SSG at the time he was separated from the Army on 30 April 1946.  Further, the available evidence includes a properly constituted separation document, a final pay worksheet, a separation qualification record and an honorable discharge certificate that confirm he held the rank of PFC on the date of his separation.  Therefore, there is an insufficient evidentiary basis to support granting the requested relief. 

2.  The records show the applicant should have discovered the error or injustice now under consideration on 30 April 1946, 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

__AR__  __WDP__  _MKP  __    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.  

		Margaret K. Patterson
		    CHAIRPERSON

INDEX

CASE ID	AR2003091305	
SUFFIX		
RECON		
DATE BOARDED	2004/01/15	
TYPE OF DISCHARGE	HD	
DATE OF DISCHARGE	1946/08/30	
DISCHARGE AUTHORITY	AR . . . .	
DISCHARGE REASON		
BOARD DECISION	(DENY)	
REVIEW AUTHORITY		
ISSUES         1.PayGrd	129.0500.0000	
2.		
3.		
4.		
5.		
6.