MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:   

	BOARD DATE:            1 March 2001                  
	DOCKET NUMBER:   AR2001051730

	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	
	Ms. Deborah L. Brantley		Senior Analyst	

  The following members, a quorum, were present:

	Mr. John H. Kern 		Chairperson	
	Mr. Curtis L. Greenway 		Member	
	Mr. Richard T. Dunbar 		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:  In effect, that a 1945 court-martial be expunged from his military file.

APPLICANT STATES:  In effect, that he was not adequately represented by counsel at the time of the court-martial, that his rights were not fully explained to him, and his witnesses were not "fairly listened to."  He notes that he was powerless to do anything about it.  He states that he was charged with disobeying an order but contends that it was a case of mistaken identity.  He indicated that he had several witnesses who testified in contradiction to the sentry who said he "did not stop when he ordered [the applicant] to do so.”

The applicant states that this unfortunate incident has "never completely left [his] mind."  He notes that he has been married for over 50 years, raised three children, completed his education and worked for the U.S. Treasury Department for 18 years and in banking for 20 years.  He notes that he is now 79 years old and in poor health and would like to clear his record for himself and for his children and grandchildren.

In support of his request he submits copies of three letters written in 1943 attesting to his loyal and faithful service as an enlisted soldier, a copy of his biographical information, and several letters from the 1960s recognizing his work with the U.S. Treasury Department.

EVIDENCE OF RECORD:  The majority of the applicant's military records were apparently lost or destroyed during the 1973 fire at the National Personnel Records Center in St. Louis.  Information contained herein was reconstructed from information provided by the applicant.

The applicant enlisted as a member of the New York Army National Guard on 
26 January 1937 and entered active duty on 3 February 1941 where he served as a member of a heavy artillery battalion.  He served in the European Theater of Operations between 1942 and 1945 where he was awarded the Army Good Conduct Medal and participated in at least one designated campaign period.

According to information provided by the applicant he was court-martialed in February 1945 while aboard the "troop transport 'Queen Elizabeth' as a member of the gun crew."  He notes that he met briefly with an Army captain who he "was to led to believe that [he] had to accept him as [his] attorney" in spite of the fact that he did not know anything about him or his qualifications.  He stated that during the trial he was disappointed in the lack of preparation by his attorney and was told by the clerk of the court that members of the court-martial panel discounted the testimony of his witnesses because they were all members of the same unit and "they would be prejudiced."  He also indicated that because he was so distraught over his legal counsel that he did not testify in his own behalf and was also told that "was being held against [him]."   He states that as a result of the court-martial he was "reduced to the rank of private, fined two thirds of a months pay, and sentenced to serve thirty days in the guardhouse" but only served 24 because of prior confinement and good behavior.

On 25 October 1945 he was honorably discharged from active duty in the grade of private first class with a date of rank of 21 June 1945.  His Adjutant General Office Form 01254 (Transcript of Military Record) indicates that his highest grade held was "sergeant" and that he had 24 days of lost time.

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.  Although a copy of the applicant's court-martial was not in records available to the Board, the Board contends that the applicant has not provided any evidence, except his own statement, which would confirm that the court-martial was in error or unjust.

2.  While the Board notes that the applicant was well thought of by members of his organization in statements rendered in 1943 and has been a solid citizen and contributing member of his community since his discharge those issues do not provide an adequate basis upon which the Board would grant relief.

3.  In order to justify correction of a military record the applicant must show to the satisfaction of the Board, or it must otherwise satisfactorily appear, that the record is in error or unjust.  The applicant has failed to submit evidence that would satisfy that requirement.

4.  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

___jhk___  ___rtd___  ___clg___  DENY APPLICATION

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

INDEX

CASE ID	AR2001051730	
SUFFIX		
RECON	YYYYMMDD	
DATE BOARDED	20010301	
TYPE OF DISCHARGE	(HD, GD, UOTHC, UD, BCD, DD, UNCHAR)	
DATE OF DISCHARGE	YYYYMMDD	
DISCHARGE AUTHORITY	AR .  .  .  .  .  	
DISCHARGE REASON		
BOARD DECISION	DENY	
REVIEW AUTHORITY		
ISSUES         1.  281	110.00	
2.		
3.		
4.		
5.		
6.