MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:   

	BOARD DATE:           27 March 2001                  
	DOCKET NUMBER:   AR2000049914

	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. Carl W. S. Chun		Director	
	Mr. W. W. Osborn, Jr.		Analyst	

  The following members, a quorum, were present:

	Mr. Roger W. Able		Chairperson	
	Ms. Gail J. Wire		Member	
	Mr. Allen L. Raub		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:  That his rank at the time of his discharge be changed to corporal.  

APPLICANT STATES:  In effect, that he was a corporal until he was reduced as punishment for gambling with his subordinates.  Even though he was reduced he continued to perform all the duties and responsibilities of a corporal.  He states that he has always known that this situation existed.  However, in discussing it with his children and grandchildren he should have requested relief long ago.

EVIDENCE OF RECORD:  The applicant's military records were damaged in the 1973 fire at the National Personnel Records Center.  However, they are largely intact and usable.  His military records show:

He enlisted on 9 September 1941.  Following training he was assigned duty as a heavy machine gunner with M Company, 116th Infantry Regiment.  He was promoted to corporal on 4 October 1942 and assigned duty as a liaison agent.  On 1 December 1943 he was made a squad leader.  The applicant was reduced to private on 17 February 1944.  There are no available details.  His duty assignment was changed to fire control instrument operator on 13 May 1944.  

On 12 July 1944 the applicant suffered a disabling injury to his left hand as the result of fragments from an enemy artillery shell.  He was hospitalized, evacuated 
and subsequently separated.  On 23 December 1944 the applicant was discharged as a private on a certificate for disability.

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.  Failure to file within 3 years may be excused by a correction board if it finds it would be in the interest of justice to do so.  The Board was established in the post World War II era and became effective on 2 January 1947.

Army Regulation 15-185 sets forth the policy and procedures for the ABCMR.  It provides that, if a request for a reconsideration is received within one year of the prior consideration and the case has not been previously reconsidered, it will be resubmitted to the Board if there is evidence (including but not limited to any facts or arguments as to why relief should be granted) that was not in the record at the time of the Board’s prior consideration.  The staff of the Board is authorized to determine whether or not such evidence has been submitted.

The regulation provides further guidance for reconsideration requests that are received more than 1 year after the Board’s original consideration or after the Board has already reconsidered the case.  In such cases, the staff of the Board 
submitted that shows fraud, mistake in law, mathematical miscalculation, manifest error, or if there exists substantial relevant new evidence discovered contemporaneously with or within a short time after the Board’s original decision. If the staff finds such evidence, the case will be resubmitted to the Board.  If no such evidence is found, the application will be returned without action.

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

1.  The alleged error or injustice was, or with reasonable diligence should have been discovered on the date of the discharge.  However, in view of the fact that the Board was not established until 2 January 1947, the 3 year period in which the former serviceman or someone acting in his behalf to file an application for correction of military records expired on 2 January 1950; 3 years from the date the Board was established.

2.  The application is dated 26 June 2000 and the applicant has not explained or otherwise satisfactorily demonstrated by competent evidence that it would be in the interest of justice to excuse the failure to apply within the time allotted.

3.  Aside from his assertions, no details concerning the applicant’s reduction in rank are available.  However, there is no reason to doubt his account.  By his own admission the applicant was reduced as punishment.  

4.  The Board finds no error or injustice in the fact that the applicant continued to serve in a position of authority after the reduction.  Indeed, the fact that he was not reassigned to duties commensurate with the rank of private tended, in the Board’s opinion, to lessen the punishment.

5.  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

__RWA _  __GJW__  ___ALR__  DENY APPLICATION

		    Carl W. S. Chun
		    Director, Army Board for Correction
    of Military Records

INDEX

CASE ID	AR2000049914	
SUFFIX		
RECON		
DATE BOARDED	20010327	
TYPE OF DISCHARGE		
DATE OF DISCHARGE		
DISCHARGE AUTHORITY		
DISCHARGE REASON		
BOARD DECISION	DENY	
REVIEW AUTHORITY		
ISSUES         1.	131.00	
2.		
3.		
4.		
5.		
6.