IN THE CASE OF:	

		BOARD DATE:	  2 December 2008

		DOCKET NUMBER:  AR20080012232 


THE BOARD CONSIDERED THE FOLLOWING EVIDENCE:

1.  Application for correction of military records (with supporting documents provided, if any).

2.  Military Personnel Records and advisory opinions (if any).


THE APPLICANT'S REQUEST, STATEMENT, AND EVIDENCE:

1.  The applicant requests that his rank of sergeant be restored.

2.  The applicant states that he was ordered to leave his radio equipment aboard ship because a backpack radio would be used instead.  He was then reduced in rank from sergeant to private first class for losing his equipment.  The officer who demoted him had an intense dislike for Jewish Soldiers.

3.  The applicant does not provide any additional documents in support of his request.

CONSIDERATION OF EVIDENCE:

1.  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.  This provision of law also allows the Army Board for Correction of Military Records (ABCMR) to excuse an applicant’s failure to timely file within the 3-year statute of limitations if the ABCMR determines it would be in the interest of justice to do so.  While it appears the applicant did not file within the time frame provided in the statute of limitations, the ABCMR has elected to conduct a substantive review of this case and, only to the extent relief, if any, is granted, has determined it is in the interest of justice to excuse the applicant’s failure to timely file.  In all other respects, there are insufficient bases to waive the statute of limitations for timely filing.

2.  The applicant's military records could not be located, and are presumed to have been destroyed at the fire at the records repository at St. Louis, Missouri, in 1973.  The information contained herein was derived from alternative sources, primarily from the applicant's health records.

3.  The applicant was inducted on 27 June 1942 and entered active duty on 11 July 1942.  He was awarded the military occupational specialty of high speed radio operator.

4.  The applicant served in Luzon, New Guinea and the Southern Philippines and was promoted from private to private first class to technician 5 (corporal) and finally to technician 4 (sergeant).

5.  The applicant's records do not contain any information concerning his reduction in rank.

6.  On 25 December 1945, the applicant was honorably discharged for the convenience of the Government (demobilization).  His separation document shows that he was separated in the rank of private first class.

DISCUSSION AND CONCLUSIONS:

1.  Since the applicant's records are not available to review, the reason for his reduction in rank is not a matter of record.

2.  As such, a presumption of regularity must be applied, that what the Army did was correct.  The burden for proving otherwise lies with the applicant.

3.  In view of the foregoing, there is insufficient basis to grant the applicant's request.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

__X_____  ___X____  ___X___  DENY APPLICATION



BOARD DETERMINATION/RECOMMENDATION:

1.  The evidence presented does not demonstrate the existence of a probable error or injustice.  Therefore, the Board determined that the overall merits of this case are insufficient as a basis for correction of the records of the individual concerned.

2.  The Board wants the applicant and all others concerned to know that this action in no way diminishes the sacrifices made by the applicant in service to our Nation.  The applicant and all Americans should be justifiably proud of his service in arms.




      _______ _  X _______   ___
               CHAIRPERSON
      
I certify that herein is recorded the true and complete record of the proceedings of the Army Board for Correction of Military Records in this case.

ABCMR Record of Proceedings (cont)                                         AR20080012232



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ABCMR Record of Proceedings (cont)                                         AR20080012232



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