ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS IN THE CASE OF: BOARD DATE: 28 October 2019 DOCKET NUMBER: AR20190004195 APPLICANT, THE SON OF A DECEASED FORMER SERVICE MEMBER (FSM), REQUESTS, IN EFFECT: * amendment of the FSM’s Honorable Discharge Certificate, dated 9 December 1944, to reflect the rank second lieutenant in lieu of technical sergeant * amendment of the FSM’s Honorable Discharge Certificate, dated 9 December 1944, to add reference to acceptance of a battlefield commission * issuance of a General Discharge Certificate for the period of service from 10 December 1944 through 12 April 1949 APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: * DD Form 149 (Application for Correction of Military Record) * FSM’s birth certificate * FSM’s platoon photograph, 1943 * FSM’s handwritten note regarding platoon photograph * Morning Report, dated 9 December 1944 * Honorable Discharge Certificate, dated 9 December 1944 * Headquarters, 44th Infantry Division General Orders Number 21, dated 13 February 1945 * Medical Record Brief extracts, dated 23 June 1948 * Record of Trial, General Court Martial, dated 17 August 1948 * War Department, Adjutant General’s Office memorandum, dated 15 December 1948 * FSM’s self-authored memorandum, dated 27 January 1949 * Headquarters Fort Jay Special Orders Number 73, dated 13 April 1949 * applicant’s birth certificate, dated 1 September 1961 * Army Board for Correction of Military Records (ABCMR) Record of Proceedings for Docket Number AR1998013780, dated 27 January 1999, pertaining to unrelated applicant * FSM’s death certificate, dated 8 October 2001 * photograph of FSM’s headstone * National Personnel Records Center (NPRC) web article, “The 1973 Fire at the National Personnel Records Center (St. Louis, MO)” * Certification of Military Service, dated 27 August 2015 * NPRC letter, dated 25 January 2018 * National Guard Bureau letter, dated 28 May 2018 FACTS: 1. The applicant did not file within the three year time frame provided in Title 10, United States Code (USC), section 1552(b); however, the ABCMR conducted a substantive review of this case and determined it is in the interest of justice to excuse the applicant's failure to timely file. 2. The FSM’s complete military service record is not available to the Board for review. A request was made of the NPRC to obtain the applicant’s service record, but his records were in part unavailable. A fire destroyed approximately 18 million service members’ records at the National Personnel Records Center in 1973 and his records were potentially affected by the fire. His case is being considered using the available evidence provided by the NPRC and that which the applicant provided. 3. The applicant states: a. A fire at the National Archives in July 1973 destroyed his father’s military records. He sees in photocopies of original records on microfilm, to include a Morning Report from Company G, 114th Infantry Regiment, dated 9 December 1944, his father accepted a commission as a second lieutenant. Headquarters, 44th Infantry Division orders, dated February 1944, also list his father as a second lieutenant in the second to last paragraph in which he is recognized with award of a Silver Star for his actions. b. Headquarters Fort Jay at Governors Island, NY orders, dated 12 April 1949, show his father was released from the Army without loss of rank. He has tried many times after his father’s death to find his military records confirming this information and only received copies within the past 2 years. 4. The FSM’s records contain War Department Form Number 870 (Final Statement), which shows he enlisted in the Army of the United States on 6 July 1939. 5. The applicant provided a photograph of his father’s platoon and an accompanying handwritten note written by his father, which states the photograph was taken in 1943 by a combat reporter from Newark, NJ, when the 44th Infantry Division was moving from one part of the front line to another. The note further states only 3 of the 42 men in the FSM’s platoon came out alive. God bless them. 6. A Morning Report for Company G, 114th Infantry Regiment, dated 9 December 1944, shows the FSM was honorably discharged in the rank of technical sergeant to accept a commission. 7. The FSM’s records do not contain a WD AGO Form 53-55 (Enlisted Record and Report of Separation – Honorable Discharge) or a WD AGO Form 53 (Report of Separation) detailing his discharge. 8. War Department Form Number 870 shows he was honorably discharged in the rank of technical sergeant on 9 December 1944, under the provisions of Army Regulation 615-360 (Enlisted Men – Discharge, Release from Active Duty), Section X, and Headquarters 44th Infantry Division orders, dated 8 December 1944 for the convenience of the Government to accept a commission as a second lieutenant. 9. An Honorable Discharge Certificate shows the applicant was honorably discharged from the Army of the United States in the rank of technical sergeant on 9 December 1944. This certificate was awarded as a testimonial of his honest and faithful service to his country. 10. The FSM was presumably commissioned as a second lieutenant on 10 December 1944, but documentation corroborating his date of commissioning is not in his available records for review. 11. Headquarters 44th Infantry Division General Orders Number 21, dated 23 February 1945, awarded the FSM the Silver Star for gallantry in action in France on 6 January 1945. The orders refer to the FSM as a second lieutenant. 12. Extracts from a Medical Record Brief, dated 23 June 1948, show: * the FSM was admitted to Tilton General Hospital, Fort Dix, NJ, on 25 August 1945 because of chronic bilateral otitis media (middle ear infection) * the original spontaneous onset of this condition occurred in May 1939 and he had had six recurrences of aural discharge since that time with no hearing impairment and intact drumheads * nurses’ treatment notes show the FSM was on the ward on 25 and 26 August 1945 and not on the ward from 27 August 1945 through 2 September 1945 * he was declared absent without leave on 31 August 1945 13. A Record of Trial by General Court-Martial shows the FSM was sentenced on 17 August 1948 to dismissal from the service, forfeiture of all pay and allowances due or to become due, and confinement at hard labor at such place as the reviewing authority may direct for 5 years. 14. The complete facts and circumstances surrounding the FSM’s trial by general court-martial, including the charges leading to his arraignment and trial and specific findings of guilt, are not in his available records for review. 15. A 15 December 1948 memorandum from the War Department’s Office of the Adjutant General, informed the FSM’s Commanding General of the FSM’s trial by general court-martial at Fort Dix, NJ on 17 August 1948 and of the resulting sentence of dismissal from the service, forfeiture of all pay and allowances due or to become due, and confinement at hard labor for 5 years. It also advised the FSM would not be separated from the service until the final completion of action on his case and notification by the Department of the Army. 16. A memorandum from the FSM to the Chief of Finance, dated 27 January 1949, requested information as to the reason for the delay in the payment of his base pay from 1 July 1947 through 31 January 1949. 17. Headquarters Fort Jay, Governors Island, NY Special Orders number 73, dated 13 April 1949 show: * the FSM was dismissed from the service in the rank of second lieutenant effective 12 April 1949 per the sentence of a general court-martial * he was not entitled to a formal discharge certificate per Department of the Army Circular 36, dated 1948 * he was not entitled to compensation for unused accrued leave, mileage or pay allowance to home, or transportation in kind from his place of separation 18. The applicant provided a copy of the ABCMR Record of Proceedings in Docket Number AR1998013780, dated 27 January 1999, pertaining to an unrelated applicant who requested and was granted an upgrade of his bad conduct discharge. 19. The applicant provided a death certificate which shows the FSM passed away on 8 October 2001. 20. NPRC provided a Certification of Military Service on 27 August 2015, which shows the FSM served in the Army of the United States from 6 July 1939 through 9 December 1944, when he was honorably discharged in the rank of technical sergeant to accept a commission as a second lieutenant. BOARD DISCUSSION: 1. After reviewing the application and all supporting documents, the Board found the requested relief is not warranted. 2. When the FSM was discharged to be accept a commission on 9 December 1944, he was discharged from his status as a technical sergeant. Because he had not yet been commissioned, the Board agreed it would not be appropriate to correct the record to show he held an officer rank on that date. The Board agreed that the conditions under which he was commissioned, i.e., a "battlefield" commission, is not information that would have been a matter of record in the manner the applicant requests. 3. Per the governing policy effective in 1949, issuance of discharge certificates was not authorized for Soldiers who were dismissed from the Army. The Board agreed that there was no error or injustice in the decision that the FSM would not be issued a discharge certificate in 1949. BOARD VOTE: Mbr 1 Mbr 2 Mbr 3 : : : GRANT FULL RELIEF : : : GRANT PARTIAL RELIEF : : : GRANT FORMAL HEARING :XX :XX :XX DENY APPLICATION 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. 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. REFERENCES: 1. Title 10, USC, section 1552(b), provides that applications for correction of military records must be filed within three years after discovery of the alleged error or injustice. This provision of law also allows the ABCMR to excuse an applicant's failure to timely file within the three-year statute of limitations if the ABCMR determines it would be in the interest of justice to do so. 2. Army Regulation 615-360 (Enlisted Men – Discharge, Release from Active Duty), in effect at the time, provided the general provisions for the discharge and release from active duty of enlisted men from the Army of the United States. a. Section X (Convenience of the Government) states enlisted men will be discharged for the convenience of the Government by authority of the Secretary of War. Discharge for the convenience of the Government will be approved to accept commission in the armed forces. Prior to such discharge, the discharging authority will be in possession of documentary evidence from the proper authority that the enlisted man is acceptable and will be appointed as above, and will be called to active duty immediately if discharged from the Army of the United States. b. A WD AGO Form Number 53 (Report of Separation) will not be prepared for an enlisted man discharged to accept a commission in any of the armed forces or to accept an appointment as a commissioned warrant officer in the U.S. Coast Guard, chief warrant officer in the U.S. Marine Corps, commissioned warrant officer in the U.S. Navy , or appointment as a warrant officer in the Army of the United States. 3. Special Regulation 605-290-1 (Officer Separation Certificates), in effect at the time, provided guidance of the issuance of separation certificates for officers. It states no formal discharge certificate will be issued in the following circumstances: * removal from office under the Criminal Code of the United States * dropped from the rolls of the Army * vacation of commission by reason of acceptance of another incompatible military or civil status * dismissal as a result of sentence of court martial 4. Department of the Army Circular 36 (Military Records – Officers’ Separation Certificates) in effect at the time, also provided guidance on the issuance of separation certificates for officers. It states no formal discharge certificate will be issued in the following circumstances: * dismissal * removal from office under the provisions of the Criminal Code of the United States * dropped from the rolls of the service * constructive resignation (upon accepting appointment or enlistment in the Navy, Marine Corps, Coast Guard, Public Health Service, or in the Foreign Service, employment by a foreign nation, or acceptance of service in a foreign armed force) * vacation of commission, upon authorized acceptance of another inconsistent military status * in the case of dual status personnel, discharge from one status and placed on inactive status in the other, for which a certificate of service is authoirized NOTHING FOLLOWS ABCMR Record of Proceedings (cont) AR20190004195 6 1