BOARD DATE: 8 June 2017 DOCKET NUMBER: AR20160000677 BOARD VOTE: _________ _______ ________ GRANT FULL RELIEF ________ ________ ________ GRANT PARTIAL RELIEF ________ ________ ________ GRANT FORMAL HEARING __x______ ___x_____ __x___ DENY APPLICATION 2 Enclosures 1. Board Determination/Recommendation 2. Evidence and Consideration BOARD DATE: 8 June 2017 DOCKET NUMBER: AR20160000677 BOARD DETERMINATION/RECOMMENDATION: The evidence presented does not demonstrate the existence of a probable error or injustice. Therefore, the Board determined 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. BOARD DATE: 8 June 2017 DOCKET NUMBER: AR20160000677 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, in effect, correction of his records to show he was separated in the rank of sergeant (SGT) in May 1955 vice private (PVT). 2. The applicant states: a. He was drafted in May 1953 and had 16 weeks of infantry basic training at Camp Polk, Louisiana, with the Company G, 148th Infantry Regiment, 37th Infantry Division. Louisiana was a different world for a person from Brooklyn, New York. During basic training, he became the company guidon bearer. Afterward, he was promoted to private first class (PFC). The 37th Infantry Division started a 32-week training on efficiencies (TOE) and he was asked to remain the company’s guidon bearer. As a result, he received the rank of corporal (CPL). Within 3 weeks of the TOE training, he was offered a squad leader position and was promoted to SGT. He was a good Soldier and he enjoyed being in the military. b. The company had a 15-mile march scheduled before a 37th Infantry Division maneuver called Operation Flashburn. During the full-pack march, a Soldier in his squad fell to the ground. He put his CPL in charge of the squad while he helped the fallen Soldier. The company first sergeant (1SG) told him to "fall in" and not to worry about the fallen Soldier. He could not just leave the fallen Soldier on the ground without giving him some help. The 1SG became very angry and ordered him to "fall in." He was afraid that the fallen Soldier was going to die, so he told the 1SG that he would not leave him in this condition. Therefore, he stayed with the Soldier until a jeep arrived to pick him up and brought the injured Soldier to the hospital. He joined his company and continued back to the camp. The fallen Soldier was also a New Yorker and it has always been his assessment that his race had an influence on the 1SG's decision. c. After 1 week, he was told to immediately report to the company commander's office. The company commander at that time was a National Guardsman. When he reported, the commander informed him that the 1SG had filed charges against him for disobeying a direct order while on the 15-mile march. The commander explained the two types of courts-martial: summary and general. The summary court-martial (SCM) is a trial at the company-grade officer level and if he pled guilty, he would be demoted to PVT, have 1 month of guard duty, and be restricted to the barracks for 1 month, with no stockade time. At a general court-martial (GCM) hearing, however, he would be found guilty and would be sentenced to stockade time, and he would also be given a dishonorable discharge (DD). d. At 20 years of age, he was afraid. He did not want to serve time in the Army stockade and he did not want to get a DD. Therefore, he agreed to the SCM. e. He was recently informed that his SCM hearing was not properly followed by the company commander and 1SG. He was not informed about the right to have a lawyer in his defense or that the action taken against him was completely out of order. f. He is now 82 years old with many health issues. When he passes on, he would like to be laid to rest in Calverton National Cemetery in Long Island, NY. He would like to have the rank of SGT listed on his headstone. 3. The applicant provides his DD Form 214 (Report of Separation from the Armed Forces of the United States). 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 complete 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 some of his 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. On 12 May 1953, the applicant was inducted into the Army of the United States. His rank upon entry was as a PVT/E-1. 4. Special Orders Number 108, issued by Headquarters, Quartermaster Training Command, Fort Lee, VA, dated 10 May 1955, show he was released from active duty and transferred him to the U.S. Army Reserve (USAR) Control Group (Reinforcement). The orders listed his grade as PVT-/E-2. 5. On 11 May 1955, the applicant was released from active duty service and issued a general discharge under honorable conditions. He was transferred to the USAR to complete his 8-year service obligation under the Universal Military Training and Service Act. 6. The applicant's DD Form 214 shows in: * item 3 (Grade, Rate, Rank and Date of Appointment) – PVT/E-2 (Permanent), 15 April 1955 * item 5 (Qualifications – Specialty Number or Symbol) – 4204 (Shoe Repairman) * item 18 (Grade, Rate, or Rank at time of Entry into Active Service) – PVT/E-1 * item 19 (Date and Place of Entry into Active Service) – 12 May 1953, New York, NY REFERENCES: Special Regulation Number 615-360-1 (Enlisted Personnel Separation), dated 24 June 1953, established the procedures to be followed in the separation of enlisted personnel from active military service and described the proper method of execution and disposition of the various forms, records, and reports required. Paragraph 13(e) stated to enter the grade in which serving at time of separation, indicating whether permanent or temporary, and date of appointment. If the date of rank is different from date of appointment, enter the date of rank in remarks. DISCUSSION: 1. The evidence of record shows the applicant served on active duty from 12 May 1953 to 11 May 1955. It is possible he was placed in positions or performed the duties of more advanced ranks; however, there are no records to corroborate his contention that he was advanced to the rank of PFC, CPL, or SGT. 2. The applicant’s separation orders and his DD Form 214 show he held the rank of PVT/E-2 at the time of his separation on 11 May 1955 and his date of appointment to that grade was 15 April 1955. There are no other promotions or appointment documents that confirm he held a higher rank on the date he was separated from active duty. Absent such evidence, it must be presumed the rank listed on his DD Form 214 is correct. //NOTHING FOLLOWS// ABCMR Record of Proceedings AR20150000953 Enclosure 1 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS ABCMR Record of Proceedings (cont) AR20160000677 2 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 1 ABCMR Record of Proceedings (cont) AR20160000677 4 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 2