MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:	 

	BOARD DATE:             7 July 1999                
	DOCKET NUMBER:	AR1999014829

	I certify that hereinafter is recorded the record of consideration of the Army Board for Correction of Military Records in the case of the above-named individual.

	Mr. Loren G. Harrell		Director	
	Mr. G. E. Vandenberg		Analyst	

  The following members, a quorum, were present:

	Ms. Irene N. Wheelwright 		Chairperson	
	Mr. James E. Anderholm		Member	
	Ms. Meta Waller		Member	

	The Board, established pursuant to authority contained in 10 U.S.C. 1552, convened at the call of the Chairperson on the above date.  In accordance with Army Regulation 15-185, the application and the available military records pertinent to the corrective action requested were reviewed to determine whether to authorize a formal hearing, recommend that the records be corrected without a formal hearing, or to deny the application without a formal hearing if it is determined that insufficient relevant evidence has been presented to demonstrate the existence of probable material error or injustice.

	The applicant requests correction of military records as stated in the application to the Board and as restated herein.

	The Board considered the following evidence:

	Exhibit A - Application for correction of military 
                       records
	Exhibit B - Military Personnel Records (including
	            advisory opinion, if any)

APPLICANT REQUESTS:  Reconsideration of his previous application to correct his records by reinstating his rank to sergeant.

APPLICANT STATES:  In effect, he was improperly demoted on a charge of fraternizing with the Germans.  He contends that he was not given the opportunity to explain the situation to the officer who demoted him.  He indicates that his unit’s morning reports show no disciplinary actions were formally taken against him which indicates that proper procedures were not followed to demote him.

NEW EVIDENCE OR INFORMATION:  The applicant’s case is reopened in accordance with the Army Board for Correction of Military Records Reconsideration Project (ABCMR-RP) criteria.  The applicant’s previous requests, beginning in1993, were administratively closed due to the loss or destruction of his records in the 1973 NPRC fire.

The applicant’s report of separation (WD AGO Form 53-55) shows his rank as private.  He authenticated that document as correct with his signature and thumb print on the date of his discharge, 1 September 1945.  In 1984 the applicant requested that he be issued his authorized awards and medals but did not request that his rank be changed.

A phone conversation with a senatorial staff indicates a review of the morning reports disclosed no notation of a reduction in rank for the applicant, therefore, it is contend that the reduction was not proper and the applicant warrants relief. 

The applicant submits copies of his two envelops dated May 21, 1945 and June 1, 1945.  The first shows a return address listing him as a sergeant and the second as a private.  

A statement from a fellow soldier states “ He told me he was busted from sergeant to private for no good reason….”

DISCUSSION:  Considering all the evidence, allegations, and information presented by the applicant, together with the evidence of record, applicable law and regulations, it is concluded:

1.  Without records this Board is unable to make an informed and truly impartial decision.  Normally, in such cases, the Board declines to formally review the case and administratively closes it without action.  However, due to the strong interest voiced by the senator’s office this case is presented for Board action.

2.  An absence of a record of the reduction in the unit morning reports is not evidence of an improper action.  While there may not be any evidence of the reduction, there is also no evidence that applicant was advanced to the permanent rank of sergeant.  During this time frame it was not uncommon for a soldier to receive a temporary promotion to fill a unit vacancy until someone with proper grade could be obtained.  Upon the filling of vacancy with a person of the proper rank the person formally in that position reverted to their former permanent grade. 

3.  In 1945 the applicant signed the document that he now wants changed.  He had approximately 27 years before the records were burned to request a correction.  Instead, he waited another 20 years despite making a request for medals in the interim.

4.  The presumption of regularity is a legal principle under which this Board must operate.  The burden of proving that an error or injustice occurred is the responsibility of the applicant.  In the absence of evidence to the contrary, it must be presumed that such records as exist are correct.

5.  Further, expressions of dissatisfaction with previous decisions, contentions, unsubstantiated assertions, interpretations and argument, (except those that set forth a new factual basis for the requested relief) do not constitute rational for reconsideration by the Board.

6.  In view of the foregoing, there is no basis for granting the applicant's request.

DETERMINATION:  The applicant has failed to submit sufficient relevant evidence to demonstrate the existence of probable error or injustice.

BOARD VOTE:

________  ________  ________  GRANT

________  ________  ________  GRANT FORMAL HEARING

__INW__  __JEA___  __MW___  DENY APPLICATION

						Loren G. Harrell
						Director

INDEX

CASE ID	AR1999014829	
SUFFIX		
RECON	 	
DATE BOARDED	19990707  	
TYPE OF DISCHARGE	 	
DATE OF DISCHARGE	 	
DISCHARGE AUTHORITY	AR . . . . .  	
DISCHARGE REASON		
BOARD DECISION	DENY	
REVIEW AUTHORITY		
ISSUES        1.	129	
2.		
3.		
4.		
5.		
6.