RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:           24 March 2005
      DOCKET NUMBER:  AR20040003082


      I certify that hereinafter is recorded the true and complete record
of the proceedings of the Army Board for Correction of Military Records in
the case of the above-named individual.

|     |Mr. Carl W. S. Chun               |     |Director             |
|     |Mr. Joseph A. Adriance            |     |Analyst              |

      The following members, a quorum, were present:

|     |Mr. Allen L. Raub                 |     |Chairperson          |
|     |Mr. Ronald E. Blakely             |     |Member               |
|     |Mr. Robert Rogers                 |     |Member               |

      The Board considered the following evidence:

      Exhibit A - Application for correction of military records.

      Exhibit B - Military Personnel Records (including advisory opinion,
if any).

THE APPLICANT'S REQUEST, STATEMENT, AND EVIDENCE:

1.  The applicant requests, in effect, that his discharge rank be corrected
to read Technician Four (Tec 4).

2.  The applicant states, in effect, that nonjudicial punishment (NJP)
action that resulted in his reduction was illegal, invalid and not
enforceable on the basis of administrative errors, omissions, and
transgressions that materially injured his substantial rights.  These
factors mandate that the charge be set aside and voided in the interest of
fairness and justice.

3.  The applicant provides a self-authored statement, separation document
(WD AGO Form 53-55) and Discharge Certificate in support of his
application.

CONSIDERATION OF EVIDENCE:

1.  The applicant is requesting correction of an alleged error or injustice
that occurred on 29 May 1945.  The application submitted in this case is
dated
16 June 2004.

2.  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 allows the Army
Board for Correction of Military Records (ABCMR) to excuse failure to file
within the 3-year statute of limitations if it determines that it would be
in the interest of justice to do so.  In this case, the ABCMR will conduct
a review of the merits of the case to determine if it would be in the
interest of justice to excuse the applicant’s failure to timely file.

3.  The applicant’s military records are not available to the Board for
review.  A fire destroyed approximately 18 million service members’ records
at the National Personnel Records Center in 1973.  It is believed that the
applicant’s records were lost or destroyed in that fire.  However, there
were sufficient documents remaining in a reconstructed record for the Board
to conduct a fair and impartial review of this case.  This case is being
considered using reconstructed records that primarily consist of the
applicant’s separation document.

4.  The WD AGO 53-55 issued to the applicant on the date of his separation,

29 May 1945, shows that he was inducted into the Army and entered active
duty on 24 February 1942.  It also shows he served in the Pacific Theater
of Operations (PTO) from 15 July 1942 through 25 April 1945, and that he
participated in the Papuan and New Guinea campaigns.  Further, it indicates
that during his active duty tenure, he was awarded the Army Good Conduct
Medal,
Asiatic-Pacific Campaign Medal and Distinguished Unit Citation.
5.  The facts and circumstances surrounding the applicant’s reduction are
not on file.  However, his separation document shows that the highest grade
he held while serving on active duty was Tec 4, as indicated in Item 38
(Highest Grade Held).  It also confirms, in Item 3 (Grade), that he held
the rank of private first class (PFC) on the date of his separation.  He
authenticated the WD AGO Form 53-55 with his signature in Item 56
(Signature of Person Being Separated) on
29 May 1945, the date of his separation from active duty.

6.  Technical Manual 12-235, which prescribed the policy and procedure for
the preparation and distribution of separation documents during the period
in question, and contained item by item entry instructions.  These
instructions indicated that the highest grade a member held while serving
on active duty would be entered in Item 38 (Highest Grade Held).  However,
it stipulated that the grade held on the date of separation would be
entered in Item 3 (Grade).

DISCUSSION AND CONCLUSIONS:

1.  The applicant’s claim that his reduction was illegal and the supporting
statement he provided were carefully considered.  However, there is
insufficient evidence to support this claim.  The evidence of record is
void of the facts and circumstances surrounding the NJP action that
resulted in the applicant’s reduction.

2.  However, the evidence includes a properly constituted WD AGO Form 53-
55, which the applicant authenticated with his signature on the date of his
separation from active duty.  His signature indicates he verified that the
information contained in the separation document, to include the rank
listed in Item 3 (Grade) was correct at the time the WD AGO Form 53-55 was
prepared and issued.

3.  Absent any evidence of record to corroborate the applicant’s claim that
his reduction was illegal, the rank listed on the WD AGO Form 53-55, to
include the rank entries, carries with it a presumption of Government
regularity.  As a result, there is an insufficient evidentiary basis to
support granting the requested relief.

4.  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.  Notwithstanding his current
assertion that his reduction was unjust, he has failed to submit evidence
that would satisfy this requirement.
5.  The records show the applicant should have discovered the error or
injustice now under consideration on 29 May 1945, the date of his
separation from active duty.  Therefore, based on the date the Board was
established, 2 January 1947, the time for the applicant to file a request
for correction of any error or injustice expired on 1 January 1950.
However, he did not file within the 3-year statute of limitations and has
not provided a compelling explanation or evidence to show that it would be
in the interest of justice to excuse failure to file.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF

________  ________  ________  GRANT PARTIAL RELIEF

________  ________  ________  GRANT FORMAL HEARING

___RR __  ___REB_  ___ALB__  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

1.  The Board determined that 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.  As a result, the Board further determined that there is no evidence
provided which shows that it would be in the interest of justice to excuse
the applicant's failure to timely file this application within the 3-year
statute of limitations prescribed by law.  Therefore, there is insufficient
basis to waive the statute of limitations for timely filing or for
correction of the records of the individual concerned.




            ____Allen L. Raub_______
                    CHAIRPERSON

                                    INDEX

|CASE ID                 |AR20040003082                           |
|SUFFIX                  |                                        |
|RECON                   |                                        |
|DATE BOARDED            |2005/03/24                              |
|TYPE OF DISCHARGE       |HD                                      |
|DATE OF DISCHARGE       |1945/05/29                              |
|DISCHARGE AUTHORITY     |AR 615-365                              |
|DISCHARGE REASON        |Demobilization                          |
|BOARD DECISION          |DENY                                    |
|REVIEW AUTHORITY        |                                        |
|ISSUES         1.  803  |144.9213                                |
|2.                      |                                        |
|3.                      |                                        |
|4.                      |                                        |
|5.                      |                                        |
|6.                      |                                        |


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