MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:   

	BOARD DATE:           9 May 2002
	DOCKET NUMBER:   AR2002069610

	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. William Blakely		Analyst	

  The following members, a quorum, were present:

	Ms. JoAnn H. Langston		Chairperson	
	Mr. John N. Slone		Member	
	Mr. Terry L. Placek		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 he be compensated for the money lost due to his reduction in rank for misconduct. 

APPLICANT STATES:  In effect, that he was punished for the acts of misconduct of another, in an attempt to follow orders.  He states that the punishment he received was an injustice and feels he should be compensated for the anxiety he now suffers.  In support of his application, he submits the following documents: Special Orders 138 dated 12 December 1942, issued by Headquarters, 53rd Signal Battalion; Honorable Discharge Certificate; Meritorious Service Unit Citation; one Letter of Commendation; orders for the Army Commendation Medal; award recommendation for the Bronze Star Medal; General Orders 125, Headquarters, Mediterranean Theater of Operations, dated 6 November 1944; and a newspaper article from the Cox New Service.

EVIDENCE OF RECORD:  The applicant's military records were lost or destroyed in a fire at the National Personnel Records Center (NPRC) fire in 1973.  The information herein was gleaned from a copy of a Certification of Military Service (NA Form 13038), dated 31 January 2001, published by the NPRC, National Archives and Records Administration (NARA).

The NA Form 13038 confirmed that the applicant entered the Regular Army on 
5 March 1941, and that he continuously served on active duty until 14 September 1945, at which time he was honorably discharged in the rank of technical sergeant.  

Special Orders 138, dated 12 December 1942, issued by Headquarters, 53rd Signal Battalion provided by the applicant, confirms he was reduced from the rank of staff sergeant to the rank of private.  In addition, the applicant’s reduction was for misconduct as the noncommissioned office in charge, who allowed a soldier to operate a government vehicle in excess of authorized speed. 

Army Regulation 15-185, the regulation that governs the operation of the Board, sets forth the procedures for processing requests to correct military records.  Paragraph 2-9 states, in pertinent part, that the Army Board for Correction of Military Records begins its consideration of each case with the presumption of administrative regularity and the burden of proving error or injustice by a preponderance of the evidence rests with the applicant.

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.  The Board notes the contentions of the applicant that he should be compensated for the anxiety that he now suffers due to his reduction for misconduct, but finds this claim lacks merit.  

2.  By regulation, the applicant must prove error or injustice by a preponderance of the evidence.  The evidence of record confirms that the applicant was reduced to the rank of private for misconduct.  Because his records were lost or destroyed in the fire at the NPRC, the applicant’s record is void of facts and circumstances concerning events that led to his reduction.  Therefore, lacking evidence to the contrary, the Board is compelled to presume government regularity in that the applicant’s reduction to private for misconduct, was accomplished in accordance with applicable laws and regulations and it finds there is insufficient evidence to support the requested relief in this case.

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 this 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

    JHL          JNS           TLP        DENY APPLICATION

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

INDEX

CASE ID	AR2002069610	
SUFFIX		
RECON	YYYYMMDD	
DATE BOARDED	2002/05/09	
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.	133.0100	
2.		
3.		
4.		
5.		
6.