BOARD DATE: 11 August 2009 DOCKET NUMBER: AR20090004717 THE BOARD CONSIDERED THE FOLLOWING EVIDENCE: 1. Application for correction of military records (with supporting documents provided, if any). 2. Military Personnel Records and advisory opinions (if any). THE APPLICANT'S REQUEST, STATEMENT, AND EVIDENCE: 1. The applicant requests a promotion to private first class. 2. The applicant states that he was separated from the service on 16 October 1946 in the rank of private, that he served 20 months, and that he was told that promotions were frozen at the time in question. He contends that after 20 months of honorable service he should have been separated from the service at lease as a private first class. 3. The applicant provides a copy of his WD AGO Form 53-55 (Enlisted Record and Report of Separation) in support of his application. CONSIDERATION OF EVIDENCE: 1. 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 also allows the Army Board for Correction of Military Records (ABCMR) to excuse an applicant’s failure to timely file within the 3-year statute of limitations if the ABCMR determines it would be in the interest of justice to do so. While it appears the applicant did not file within the time frame provided in the statute of limitations, the ABCMR has elected to conduct a substantive review of this case and, only to the extent relief, if any, is granted, has determined it is in the interest of justice to excuse the applicant’s failure to timely file. In all other respects, there are insufficient bases to waive the statute of limitations for timely filing. 2. 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, there were sufficient documents remaining in a reconstructed record for the Board to conduct a fair and impartial review of this case. 3. The applicant was inducted into the Army of the United States on 6 February 1945. He served as a guard patrolman and he was honorably discharged on 16 October 1946. 4. Item 3 (Grade) on the applicant’s WD AGO Form 53-55 (Enlisted Record and Report of Separation) shows the entry "PVT" [private]. Item 38 (Highest Grade Held) on his WD AGO Form 53-55 shows the entry "PVT." 5. Discharge orders, dated 16 October 1946, show the applicant's rank was private. 6. There is no evidence of record which shows that a vacancy for a private first class existed at the time in question. 7. There is no evidence in the available records which shows the applicant held the rank of private first class temporarily or was promoted to private first class prior to his discharge on 16 October 1946. 8. Army Regulation 615-5 (Enlisted Men, Appointment and Reduction of Noncommissioned Officers and Private First Class), in effect at the time, stated that in order to provide an opportunity to observe the performance of candidates for higher grade, unit commanders were authorized to exceed their authorized allotments in any grade by the number of vacancies that existed in a higher grade pending the promotion of the best qualified candidate or candidates. DISCUSSION AND CONCLUSIONS: The applicant's WD AGO Form 53-55 shows he was a private at the time of his discharge on 16 October 1946. There is no evidence of record which shows that a vacancy for a private first class existed at the time in question and there is no evidence of record which shows that the applicant was promoted to private first class prior to his discharge. Regrettably, there is no basis for granting the applicant's requested relief. BOARD VOTE: ________ ________ ________ GRANT FULL RELIEF ________ ________ ________ GRANT PARTIAL RELIEF ________ ________ ________ GRANT FORMAL HEARING __x_____ ___x____ ____x___ DENY APPLICATION BOARD DETERMINATION/RECOMMENDATION: 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. ___________x___________ CHAIRPERSON I certify that herein is recorded the true and complete record of the proceedings of the Army Board for Correction of Military Records in this case. ABCMR Record of Proceedings (cont) AR20090004717 3 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1 ABCMR Record of Proceedings (cont) AR20090004717 3 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1