IN THE CASE OF: BOARD DATE: 31 May 2018 DOCKET NUMBER: AR20180003992 BOARD VOTE: Mbr 1 Mbr 2 Mbr 3 : : : GRANT FULL RELIEF : : : GRANT PARTIAL RELIEF : : : GRANT FORMAL HEARING :X :X :X DENY APPLICATION 2 Enclosures 1. Board Determination/Recommendation 2. Evidence and Consideration IN THE CASE OF: BOARD DATE: 31 May 2018 DOCKET NUMBER: AR20180003992 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/grade of sergeant (SGT)/E-5 vice private first class (PFC)/E-3. He also requests a personal appearance before the Board. 2. The applicant states he deployed to the Philippines as a pole lineman running a 2-man crew instead of as a radio operator. Since he ran a crew, his rank should have been SGT. He wishes to be buried carrying his deserved rank. 3. The applicant provides: * WD AGO Form 53-55 (Enlisted Record and Report of Separation - Honorable Discharge) * Honorable Discharge Certificate * Letter from his son * Letter to his Member of Congress * Photographs * Letter from his spouse to a Member of Congress regarding land zoning * Privacy Act Release Form 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 his records were lost or destroyed in that fire. However, the documents the applicant provided were sufficient to conduct a fair and impartial review of this case. 3. The applicant's WD AGO Form 53-55 shows he enlisted in the Regular Army and entered active duty on 19 February 1946. At the time of his separation: * he held military occupational specialty (MOS) 766 (Radio Operator, Low Speed) * he was assigned to Battery B, 18th Field Artillery Battalion 4. His WD AGO Form 53-55 also shows he departed the continental United States on 12 November 1946 and arrived in Manila, Philippine Islands, on 3 December 1946. He departed the Philippines on 22 May 1947 and arrived in the continental United States on 6 June 1947. 5. He completed 11 months and 8 days of continental service and 6 months and 25 days of foreign service. He was honorably separated on 21 August 1947 and issued an Honorable Discharge Certificate that listed his rank as "PFC." His WD AGO Form 53-55 shows in: * item 3 (Grade) – "PFC, 18 September 1946" * item 38 (Highest Grade Held) – "PFC" 6. His WD AGO Form 100 (Separation Qualification Record) shows the following entries: a. Following 2 months of service as a private (PVT), he served 12 months in the grade of PFC as a Radio Operator, MOS 766. b. He installed and operated tactical field radio transmitting and receiving equipment and received messages by International Morse Code. c. He was separated on 21 August 1947 at the Separation Detachment, Fort Sill, OK, in the grade of PFC. 7. His WD AGO Form 372B (Final Payment-Worksheet-Memorandum Copy), shows he was separated in the grade of PFC on 21 August 1947. 8. The applicant provides: a. A letter from his son wherein he states his father simply asks for his rightfully-earned rank before he dies. He was deployed from the Philippines on the day he was to be promoted. b. A letter from the applicant to a Member of Congress wherein he states he is a veteran of World War II who served in the Philippines in 1945, as a PFC at that time, but holding down a staff sergeant position. He was in charge of a pole line crew of six men repairing communication lines, but he was never given his SGT rank. He wants his stripes. c. Honorable Discharge Certificate, dated 21 August 1947, reflecting his name and grade of PFC. d. Photographs of Soldiers in a truck and Soldiers climbing communication lines. e. Letter from the applicant's spouse to a Member of Congress in relation to zoning requirements. f. Letter from the applicant wherein he states when he was sent to the Philippines, he was not sent as a radio operator. He volunteered as a pole lineman and wound up running a crew as a PFC. He should have had his SGT rating but they had to be out of the company area by 6:00 am and the names for the rating tests posted at 7:00 am. Therefore, he missed his exam, and with that went his rating. REFERENCES: 1. War Department Technical Manual 12-236 (Preparation of Separation Forms) provided that the appropriate separation form would be prepared for all enlisted personnel separated from the service by reason of discharge, retirement, or release from active duty or transfer to a Reserve Component. This manual stated that item 3 shows the grade held by the enlisted member at the time of separation and item 38 shows the highest grade held by the enlisted member during the current period of active duty service. 2. Army Regulation 615-5 (Enlisted Men-Appointment and Reduction of Noncommissioned Officers (NCO) and Privates, First Class) governed the promotion, appointment of enlisted men to PFC and NCO grades. The effective date of an appointment is the date of the instrument of appointment unless confirmed by oral orders previously issues. When an authorized commander/ promotion authority makes an oral order and the order is confirmed in writing, the effective date cannot be earlier than the oral order as confirmed by the written instrument. 3. The Enlisted Grade Structure in the Army has changed several times since 1942. a. Prior to 1 September 1942, the Army employed the following enlisted grade structure: * Grade 1 – Master Sergeant * Grade 2 – Technical Sergeant and First Sergeant * Grade 3 – Staff Sergeant and Technician 3rd Grade * Grade 4 – SGT and Technician 4th Grade * Grade 5 – Corporal and Technician 5th Grade * Grade 6 – PFC * Grade 7 – PVT b. During the period 1 September 1942 through 1 August 1948, the Army employed the following enlisted grade structure: * Grade 1 – Master Sergeant * Grade 2 – Technical Sergeant * Grade 3 – Staff Sergeant and Technician 3rd Grade * Grade 4 – SGT and Technician 4th Grade * Grade 5 – Corporal and Technician 5th Grade * Grade 6 – PFC * Grade 7 – PVT 4. AR 15-185 (ABCMR) prescribes the policies and procedures for correction of military records by the Secretary of the Army, acting through the ABCMR. a. Paragraph 2-9 contains guidance on the burden of proof. It states, in pertinent part, that the ABCMR begins its consideration of each case with the presumption of administrative regularity, which is that what the Army did was correct. b. The ABCMR is not an investigative body and decides cases based on the evidence that is presented in the military records provided and the independent evidence submitted with the application. The applicant has the burden of proving an error or injustice by a preponderance of the evidence. c. The ABCMR may, in its discretion, hold a hearing or request additional evidence or opinions. Additionally, it states in paragraph 2-11 that applicants do not have a right to a hearing before the ABCMR. The Director or the ABCMR may grant a formal hearing whenever justice requires. DISCUSSION: 1. By regulation, an applicant is not entitled to a hearing before the ABCMR. Hearings may be authorized by a panel of the ABCMR or by the Director of the ABCMR. In this case, it appears the evidence of record and independent evidence provided by the applicant is sufficient to render a fair and equitable decision at this time. 2. The available evidence shows the applicant served on active duty from 19 February 1946 to 21 August 1947. The policy in effect at the time provided for entering the rank a member held on the date of separation in Item 3 and the highest rank a member held in Item 38 of the WD AGO Form 53-55. The applicant's WD AGO Form 53-55 as well as his WD AGO Form 100 show he held the rank of PFC at the time of separation and the highest rank he held while on active duty was PFC. 3. It is possible the applicant was promised promotion to SGT or may have even performed the duties of a SGT. Nonetheless, the available records are void of official orders or other documentary evidence confirming appointment, advancement, or promotion to SGT. The evidence does not confirm that he held a higher grade than that shown on his WD AGO Form 53-55. BOARD DETERMINATION/RECOMMENDATION: 1. 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. 2. The Board wants the applicant and all others concerned to know this action in no way diminishes the sacrifices made by him in service to our Nation. The applicant and all Americans should be justifiably proud of his service in arms. 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. //NOTHING FOLLOWS// ABCMR Record of Proceedings (cont) AR20180003992 2 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS ABCMR Record of Proceedings (cont) AR20180003992 2 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 2