MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:   

	BOARD DATE:           29 August 2002
	DOCKET NUMBER:   AR2002074092

	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. Margaret K. Patterson		Chairperson	
	Mr. Christopher J. Prosser		Member	
	Mr. Harry B. Oberg		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 his undesirable discharge (UD) be upgraded to an honorable discharge (HD).

APPLICANT STATES:  In effect, that his UD should be upgraded to an HD because he was sodomized by a sergeant and his only crime was being too young and afraid.  In support of his application, he submits a copy of his certificate of birth.

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 7 May 1993, published by the NPRC, National Archives and Records Administration (NARA).  

A discharge packet, containing the specific facts and circumstances surrounding the applicant’s discharge from the Army was not available to the Board for review.  However, there was a copy of a NA Form 13038 on file, dated 7 May 1993, which verified the applicant’s military service in the Army. 

The NA Form 13038 confirmed that the applicant entered the Regular Army on 20 July 1955, and that he continuously served on active duty until 5 June 1956, at which time he was undesirably discharged, in the rank of private.  This document does not provide the authority and reason for his discharge or any other information in regard to the facts and circumstances surrounding his discharge or separation processing.  

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, and it is concluded:

1.  The Board notes the contentions of the applicant that his discharge should be upgraded because he was sodomized by a sergeant and his only crime was being too young and afraid.  However, it finds insufficient evidence to support this claim. 

2.  By regulation, the applicant must prove error or injustice by a preponderance of the evidence that a material error or injustice exists in the military record in order for the Board to recommend a correction to the military records.  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 discharge from the Army.  Therefore, lacking evidence to the contrary, the Board is compelled to presume government regularity in the discharge process, and it finds insufficient evidence has been provided 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

__MKP__  __CJP __  _  _HBO __  DENY APPLICATION

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

INDEX

CASE ID	AR2002074092	
SUFFIX		
RECON	YYYYMMDD	
DATE BOARDED	2002/08/29	
TYPE OF DISCHARGE	UD	
DATE OF DISCHARGE	19560605	
DISCHARGE AUTHORITY	AR .  .  .  .  .  	
DISCHARGE REASON		
BOARD DECISION	DENY	
REVIEW AUTHORITY		
ISSUES         1. 144.9301	105.0100	
2.		
3.		
4.		
5.		
6.