BOARD DATE:	  16 July 2009

		DOCKET NUMBER:  AR20090007424 


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 reconsideration of his previously denied multiple requests that his military records be corrected to show that all findings of guilty for the charges and specifications for which he was convicted by special court-martial (SPCM) on 24 July 1968 were set aside with restoration of all rights, privileges, property, forfeitures, back pay, and allowances.

2.  The applicant states, in effect, that in 1968 he held the grade of sergeant first class (SFC)/pay grade E-7 and was stationed in the Republic of Vietnam.  He also states that not only did he attain the rank of SFC faster than any other African American at the time, but he was selected for warrant officer at a time when very few African Americans were in leadership positions within the Army.  He further states that all of the people involved in his case in 1968 were White Americans and racial bias resulted in the Department of the Army, Headquarters, Americal Division Support Command, wrongfully convicting him by SPCM with the following charges which appear on Headquarters, Americal Division Support Command, SPCM Order (SPCMO) Number 31, dated 10 August 1968:

	a.  Charge I and Specification:  Violation of Article 121 of the Uniform Code of Military Justice (UCMJ), misappropriation of a 3/4 ton government truck;

	b.  Charge II and Specification:  Violation of Article 80 of the UCMJ, attempting to violate a regulation (against black marketing) by transporting and negotiating the sale of 75 cases of beer; and

	c.  Charge III and Specification:  Violation of Article 92 of the UCMJ, violating a lawful order by visiting a village during restricted time period.

3.  The applicant states that he was sentenced to reduction to the rank of corporal (CPL)/pay grade E-4.  He contends that all charges and specifications were subsequently set aside by SPCMO Number 80, dated 24 November 1968; SPCMO Number 83, dated 26 November 1968; and SPCMO Number 12, dated 12 March 1975.  The applicant contends that although all charges and specifications were set aside and in spite of several third party statements, the Department of the Army refuses to recognize the validity of SPCMO Number 80, dated 24 November 1968, and thus refuses to correct his official military record and restore his privileges.

4.  The applicant contends, in effect, that he has not been afforded a fair appeal during the past 40 years due to the fact that the former Staff Judge Advocate (SJA) for the Americal Division, retired Colonel (COL (Ret)) R____t F. C____u, had the authority to deny or approve his request at every level of the appeal process.  He states that COL (Ret) C____u has been in legal conflict from the very beginning because he served as counsel to both the prosecution and the defense during his court-martial in 1968.  He further states that COL (Ret) C____u was instrumental in the disapproval of his initial appeal to the Army Board for Correction of Military Records (ABCMR) in 1968.  The applicant also states that COL (Ret) C____u ordered a United States Army Criminal Investigation Command (USACIDC, also known as CID) investigation of his appeal in the 1983/1984 time period.  He further states that COL (Ret) C____u served in the Office of The Judge Advocate General (OTJAG) that provided a legal opinion, dated 28 February 1985, to the ABCMR recommending that his ABCMR request be denied on the grounds of the validity of SPCMO Number 80.

5.  The applicant contends that, to date, none of the appeal authorities have:

	a.  acknowledged and accepted the numerous affidavits, testimonies, and statements in opposition to COL (Ret) C____u's alleged possession of the fraudulent order; 

	b.  accepted CID findings that he had conducted no illegal activities;

	c.  accepted that COL (Ret) C____u was in legal conflict by providing counsel to both the defense and the prosecutor at his court-martial; and

	d.  accepted that COL (Ret) C____u was in legal conflict by serving on his subsequent appeals.

6.  The applicant concludes that a more in-depth investigation of his case will show COL (Ret) C____u's involvement on behalf of the OTJAG and the SJA as well as many other inconsistencies pertinent to dates, places, and times as related to physical evidence.

7.  The applicant provides the following documents as evidence in support of this application:

	a.  the four aforementioned SPCMOs;

	b.  a DD Form 491 (Summarized Record of Trial by Special Court-Martial), dated 24 July 1968;

	c.  four affidavits, dated:  12 August 1975, 2 March 1976, 10 June 1977, and 16 June 1977;

	d.  four DA Forms 2823 (Witness Statement), dated June 1968 (two) and 20 August 1968 (two);

	e.  five third party statements, dated:  4 June 1968, 8 June 1968 (two),           8 August 1968, and 7 December 1969;

	f.  a request to authorize the applicant to purchase 75 cases of beer and a certification that it was purchased;

	g.  five letters, dated:  10 January 1969, 10 December 1980, 14 January 1981, 7 April 1982, and 5 September 2006;

	h.  two DA Forms 2-2 (Insert Sheet to DA Form 2-1 - Record of Court-Martial Conviction);

	i.  a cover sheet for an application for appointment as a warrant officer, dated 31 December 1967, and four letters of recommendation dated:  17 February 1968, 3 May 1968 (two), and 1 June 1968;

	j.  two memoranda, dated:  17 July 1985 and 29 July 1985;

	k.  a legal opinion, dated 28 February 1985; and

	l.  two CID reports, dated:  25 August 1981 and 20 October 1981.


8.  The applicant indicated that he provided the following supporting documents which were not enclosed with his application:

	a.  a statement from Staff Sergeant J___y J. B__d, dated 5 June 1968;

	b.  a DA Form 2077 (Petroleum Products Laboratory Analysis Report), dated 3 June 1968; and

	c.  a statement from Staff Sergeant W_____e H____n, dated 18 May 1976.

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 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.  Incorporated herein by reference are military records which were summarized in the previous consideration of the applicant's case by the ABCMR initially in February 1973 and subsequently in Docket Number AC85-00160 on 17 July 1985.

3.  The applicant provides a new argument that his request should be approved based upon his contention that he has not been afforded a fair appeal during the past 40 years due to the fact that the former SJA for the Americal Division, COL (Ret) C____u, had the authority to deny or approve his request at every level of the appeal process.  The applicant also contends that his request should be approved because he believes he was a victim of racial discrimination.  These arguments were not previously considered by the ABCMR.  Therefore, they are considered new evidence and as such warrant consideration by the Board.

4.  The applicant's record shows that he was inducted into the Army of the United States on 8 July 1958 and served on active duty in military occupational specialty (MOS) 111 (Light Weapons Infantryman) until he was released from active duty and transferred to the United States Army Reserve on 23 June 1960.  He enlisted in the Regular Army and entered active duty in August 1960.  The applicant held MOS 56C (Petroleum Storage Specialist), MOS 76W (Petroleum Supply Specialist), and MOS 94B (Food Service Specialist) during this period of active duty.  The applicant was released from active duty and transferred to the United States Army Reserve Control Group (Retired) effective 30 November 1987.  At the time of his retirement, the applicant held the rank of master sergeant (MSG)/pay grade E-8.

5.  Although the applicant provides 37 documents as evidence in support of this application, all but one of them was present in his record and previously taken into consideration by the Board.  The only document not previously taken into consideration by the Board is Department of the Army, Office of The Judge Advocate General, Rosslyn, Virginia, letter, dated 5 September 2006.  This letter will be addressed in detail later in these proceedings.

6.  The applicant's record shows he served a tour of duty in the Republic of Vietnam during the period of 25 September 1967 through 18 September 1968.  Evidence shows that during this time period the applicant was recommended for appointment as a warrant officer.  On 2 June 1968, the applicant's unit commander requested authorization for him to purchase 75 cases of beer from the post exchange for battalion recreational purposes.  

7.  The applicant's DD Form 491, dated 24 July 1968, and associated statements show that while operating a military vehicle on 2 June 1968, the applicant was stopped by military police who accused him of entering an area which had been declared off-limits and attempting to sell the beer that he was transporting to the local nationals.  The military police held the applicant at gunpoint, confiscated the beer, and arrested the applicant.

8.  The applicant's DD Form 491, dated 24 July 1968, in pertinent part, shows the persons who were present and/or absent during the applicant's SPCM proceedings.  COL (Ret) C____u's name does not appear anywhere on this document or on any of the associated statements.  This form also shows that defense counsel had stated that no member of the defense had acted as the accuser, a member of the prosecution, investigating officer, law officer, or member of the court in this case.

9.  Headquarters, Americal Division Support Command, SPCMO 31, dated        10 August 1968, shows the applicant was tried and found guilty of the following charges and specifications:

	a.  Charge I and Specification:  Violation of Article 121 of the UCMJ, misappropriation of a three-quarter ton government truck;
	b.  Charge II and Specification:  Violation of Article 80 of the UCMJ, attempting to violate a regulation (against black marketing) by transporting and negotiating the sale of 75 cases of beer; and

	c.  Charge III and Specification:  Violation of Article 92 of the UCMJ, violating a lawful order by visiting a village during a restricted time period.

10.  SPCMO Number 31 also shows the applicant was sentenced to be reduced to the rank of specialist four (SP4)/pay grade E-4 and to forfeit $150.00 per month, for six months.  The sentence was adjudged on 24 July 1968.  On 10 August 1968, the court-martial convening authority approved the sentence and directed the execution of only so much of the sentence that provided for reduction to the rank of corporal (CPL)/pay grade E-4 and forfeiture of $150.00 per month, for six months.

11.  Statements provided by the applicant's chain of command, noncommis-sioned officers (NCO) in his support channel, members of his unit, and third party witnesses all attested that the applicant was utilizing a government vehicle which was, in effect, permanently dispatched to him to transport 75 cases of beer, which the applicant had purchased with his own money.  The statements also attested that the vehicle in question was routinely used for nonofficial functions, such as trips to the post exchange for the purchase of personal items.  The statements also attested that the black marketing story was contrived as a cover-up for the fact that members of the military police confiscated the beer for their personal consumption.  Statements further attested that the confiscated beer was consumed by members of the military police prior to the date of the applicant's court-martial.

12.  Department of the Army, Headquarters, 23d Infantry Division (Americal), SPCMO Number 80, dated 24 November 1968, set aside the findings of guilty of Charge I and its specification adjudged in the applicant's SPCM case on 24 July 1968 and promulgated in Headquarters, Americal Division Support Command, SPCMO 31, dated 10 August 1968, for failure of the evidence to establish beyond a reasonable doubt that the accused wrongfully appropriated a three-quarter ton truck.  This order stated that the sentence was unaffected and also directed that all rights, privileges and property of which the accused had been deprived by virtue of that portion of the findings having been set aside be returned.  This order was authenticated by Chief Warrant Officer Two W_____m R. M_______n in the capacity of Acting Assistant Adjutant General.


13.  Department of the Army, Headquarters, 23d Infantry Division (Americal), SPCMO Number 83, dated 26 November 1968, set aside the findings of guilty of Charge III and its specification adjudged in the applicant's SPCM case on 24 July 1968 and promulgated in Headquarters, Americal Division Support Command, SPCMO 31, dated 10 August 1968, for failure of the evidence to establish beyond a reasonable doubt that the accused had knowledge of the order violated.  This order stated that the sentence was unaffected and also directed that all rights, privileges and property of which the accused had been deprived by virtue of that portion of the findings having been set aside be returned.  This order was authenticated by Chief Warrant Officer Two W_____m R. M_______n in the capacity of Acting Assistant Adjutant General.

14.  The applicant provides a 547th Engineer Battalion 1st Indorsement, dated 10 January 1969, addressed to the Commanding Officer of Headquarters and Headquarters Company (HHC) of the 95th Service and Support (S&S) Battalion, Subject:  Special Court-Martial Order No. [Number] 80.  In this indorsement, J__n N. B______s, Junior, an assistant adjutant of the 547th Engineer Battalion, informed the Commander of HHC, 95th S&S Battalion, in effect, that the applicant had visited a United States Senator in Washington, D.C. in order to appeal his SPCM prior to arriving at the 547th Engineer Battalion.  He continued that SPCMO Number 80 was forwarded to the 547th Engineer Battalion as a result of a Congressional Inquiry on 20 December 1968.  The assistant adjutant concluded that a copy of SPCMO 80 should be placed in the applicant's 201 file (Military Personnel Records Jacket).

15.  The applicant also provides a letter, dated 4 March 1982, from J. N. B______s, addressed to the applicant.  This letter was written in response to a query from the applicant, and in this letter, J. N. B______s informs the applicant that, "Yes, I am the same B______s and I was assigned to the 547th Engr [Engineer] Bn [Battalion] during the time frame you mentioned in your letter."  A copy of the applicant's letter was not provided.

16.  Headquarters, Department of the Army, Washington, D.C., SPCMO Number 12, dated 21 March 1975, set aside the findings of guilty of Charge II and its specification, and so much of the sentence as was in excess of reduction to the rank of corporal, E-4, in the applicant's SPCM case adjudged on 24 July 1968 and promulgated in Headquarters, Americal Division Support Command, SPCMO Number 31, dated 10 August 1968, as modified by SPCMO Number 83 issued by the same authority, dated 26 November 1968.  This order dismissed Charge II and its specification and also directed that all rights, privileges and property of which the accused had been deprived by virtue of that portion of the findings having been set aside be returned.

17.  The applicant's record contains a DA Form 20B (Insert Sheet to DA Form 20 - Record of Court-Martial Conviction) which indicates that both Charge II and Charge III of SPCMO Number 31, dated 10 August 1968, had been set aside and cited SPCMO Number 12, dated 21 March 1975, as the catalyst for the most recent modification of the applicant's trial results.

18.  The applicant provides two DA Forms 2-2 which indicate that Charge I, Charge III, and Charge II (all three charges) of SPCMO Number 31, dated 10 August 1968, had been set aside by SPCMOs Numbered 80, 83, and 12.  These forms cited SPCMO Number 12, dated 21 March 1975, as the catalyst for the most recent modification of the applicant's trial results.

19.  In an affidavit, dated 12 August 1975, COL L___s B. T____r, stated that on 20 August 1968, he, in his capacity as Acting Chief of Staff, directed an investigation into the circumstances surrounding the applicant's court-martial charges.  COL T____r stated, in effect, that the investigation revealed that the black marketing allegations were a cover-up to get the beer from the applicant and that the applicant did have an open dispatch for use of a three-quarter ton truck for use at all hours of the day.  He also stated that Charge I was set aside by SPCMO Number 80, dated 24 November 1968 and Charge III was set aside by SPCMO Number 83, dated 26 November 1968.  COL T____r concluded by stating the applicant was an NCO in whom he placed much trust and confidence.

20.  The applicant provides five letters dated between 10 December 1980 and 7 April 1982 which show the applicant and his counsel corresponded with Mr. W_____m R. M_______n in order to validate the authenticity of SPCMO Number 80, dated 24 November 1968.  This correspondence shows that Mr. W_____m R. M_______n acknowledged that he had some recollection of the applicant's case and that it was his signature that appeared on the order in question.  He also stated that all orders that he personally signed were based on action by that convening authority and were, or should have been, retired.

21.  An initial CID report, dated 25 August 1981, shows the applicant was investigated for false swearing and falsifying official documents.  The catalyst for this investigation was information received from TJAG through CID Headquarters that the applicant had submitted documentation for relief of court-martial findings against him.  During a review of the request by TJAG, it was found that a copy of one of the promulgating orders the applicant had submitted (SPCMO Number 80, dated 24 November 1968) was fraudulent and that SPCMO Number 80 had in fact been issued on 25 November 1968 for a PV2 [private] C_____s B___n.  It was suspected that the applicant had authored the fraudulent order.

22.  A second CID status report, dated 20 October 1981, shows the investigation revealed that the SJA records of the Americal Division had been destroyed, eliminating the possibility of cross referencing the suspected fraudulent promulgation order.  The report also shows that efforts to interview Mr. W_____m R. M_______n, the legal administrative technician during the period the fraudulent order was allegedly printed, were unsuccessful due to his death on 23 April 1981.  The report further shows a request to have COL (Ret) C____u interviewed and for him to provide his personal records pertaining to promulgating orders for the Americal Division during the time period when the applicant was court-martialed had been forwarded to Fort Sam Houston, Texas.  The report concluded by noting that according to a representative based at Fort Benjamin Harrison, Indiana, SPCMO Number 80 was added to the applicant's OMPF [Official Military Personnel File] on 6 June 1980 and there was no copy of the order located in his official finance records.

23.  A DD Form 149, dated 30 April 1984, shows the applicant requested consideration by the ABCMR for correction of all military records to reflect that all findings of guilty to the charges and specifications set forth in Department of the Army, Headquarters, Americal Division Support Command, SPCMO Number 31, dated 10 August 1968, had been set aside with restoration of all rights, privileges, and property of which he had been deprived as a result of this injustice in 1968.  The basis of the applicant's request was his contention that all of the guilty charges and specifications had been set aside by SPCMOs Numbered 80, 83, and 12.  He continued that SPCMO Number 80, dated 24 November 1968, which set aside Charge I and its specification, had never been placed in his military personnel file and that its existence was first discovered by him while reviewing his finance records in 1976.  

24.  On 28 February 1985, during the processing of the applicant's 30 April 1984 request for correction of military records, a legal opinion was rendered by COL W___e R. I___a, Chief of the Criminal Law Division of OTJAG.  COL I___a opined the applicant had failed to substantiate his claim and recommended that his request for relief be denied.  The catalyst for this recommendation was COL I___a's contention that there was substantial evidence that SPCMO Number 80, dated 24 November 1968, was not authentic.  He cited the following reasons:

	a.  "The former SJA of the Americal Division, Col. R____t F. C____u, indicated that he maintained a file of court-martial orders from the relevant time period, and that SPCMO No. 80 did not relate to the applicant.

	b.  "The applicant was examined by polygraph on 11 Feb 82 concerning the suspicious origin of SPCMO No. 80.  Five charts were run; the applicant's responses showed, 'deception indicated.'
	c.  "A CID lab report, done in conjunction with a CID investigation into this matter, indicated that 'documents had been altered.'  The applicant was titled in the CID report for false swearing, and altering a public document.  No disciplinary action was taken against the applicant.

	d.  "In addition to the above, the attachments to the instant application provide substantial evidence against the applicant relative to the merits of charge I.  The sworn statements clearly reflect that the applicant did wrongfully appropriate a military vehicle when he used it to engage in black marketing activities."

25.  The applicant provides Department of the Army, Office of The Judge Advocate General, Rosslyn, Virginia, letter, dated 5 September 2006, which was rendered by Lieutenant Colonel (LTC) M_____l J. H___y, the Deputy Chief of the Criminal Law Division of OTJAG, in response to an inquiry by a Member of Congress on behalf of the applicant.  LTC H___y, in effect, informed the Member of Congress that on 26 November 1968, the SPCM Convening Authority set aside the findings of guilty as to Charge III and its Specifications in the applicant's case.  LTC H___y also informed the Member of Congress that the applicant had submitted a request for relief to TJAG which was denied on 13 April 1974.  On 27 February 1975, the applicant renewed his application and on 4 March 1975, TJAG granted relief in the form of setting aside and dismissing the findings of guilty of Charge II and its Specification and so much of the sentence in excess of reduction to the grade of E-4.  A third application for relief was denied by TJAG on 23 September 1976.  LTC H___y continued that during 1977, the applicant submitted a fourth application to TJAG wherein he contended that the evidence was insufficient to prove his guilt of wrongful appropriation and that he was denied his right to counsel as guaranteed by the Sixth Amendment.  TJAG found the applicant's allegations without merit and denied his request on 18 August 1977.  On 1 September 2006, TJAG reviewed and denied the applicant's fifth request for relief.  LTC H___y concluded by informing the Member of Congress that the applicant was referred to the ABCMR if he desired to further petition his request for relief.

26.  ABCMR, Arlington, Virginia, letter, dated 19 April 2007, informed the applicant that his 25 August 2006 request for reconsideration of ABCMR Docket Number AC85-00160, which was considered by the ABCMR on 17 July 1985, was being returned without further action.  The catalyst for this decision was the fact that the applicant had failed to submit his request for reconsideration within the time constraint provided by Army Regulation 15-185 (Boards, Commissions, and Committees - Army Board for Correction of Military Records), which is within one year of the ABCMR's original decision.  This letter also informed the applicant that the ABCMR would not consider any further requests for reconsideration of this matter and that he had the option of seeking relief in a court of appropriate jurisdiction.

27.  ABCMR, Arlington, Virginia, letter, dated 3 December 2007, informed a Member of Congress that the Board's decision regarding the applicant's 25 August 2006 request for reconsideration of ABCMR Docket Number AC85-00160, which was considered by the ABCMR on 17 July 1985, had not changed.
This letter also informed the Member of Congress that the applicant had exhausted his appeal rights with the Department of the Army and that he had the option of seeking relief in a court of appropriate jurisdiction.

28.  ABCMR, Arlington, Virginia, letter, dated 18 December 2008, informed the applicant that his 28 August 2008 request for reconsideration of ABCMR Docket Number AC85-00160, which was considered by the ABCMR on 17 July 1985, was, once again, being returned without further action.  The catalyst for this decision was the fact that the applicant had failed to submit his request for reconsideration within the time constraint provided by Army Regulation 15-185 (Boards, Commissions, and Committees - Army Board for Correction of Military Records), which is within one year of the ABCMR's original decision.  This letter also reiterated to the applicant that the ABCMR would not consider any further requests for reconsideration of this matter and that his only recourse was to seek relief in a court of appropriate jurisdiction.

29.  Section 1552, Title 10, U. S. Code prescribes that with respect to records of courts-martial and related administrative records pertaining to court-martial cases tried or reviewed, the ABCMR is limited to correction of a record to reflect actions taken by reviewing authorities under chapter 47 of this title (or under the UCMJ (Public Law 506 of the 81st Congress) or action on the sentence of a court-martial for purposes of clemency.

30.  Army Regulation 15-185, in pertinent part, provides that the ABCMR will decide cases on the evidence of record.  It is not an investigative body.  This regulation also provides that if the ABCMR receives a request for reconsideration within one year of the ABCMR's original decision and if the ABCMR has not previously reconsidered the matter, the ABCMR staff will review the request to determine if it contains evidence (including, but not limited to, any facts or arguments as to why relief should be granted) that was not in the record at the time of the ABCMR's prior consideration.  If new evidence has been submitted, the request will be submitted to the ABCMR for its determination of whether the new evidence is sufficient to demonstrate material error or injustice.  If no new evidence is found, the ABCMR staff will return the application to the applicant without action.  The regulation also provides that if the ABCMR receives a request for reconsideration more than one year after the ABCMR's original decision or after the ABCMR has already considered one request for reconsideration, then the case will be returned without action and the applicant will be advised the next remedy is appeal to a court of appropriate jurisdiction.  

DISCUSSION AND CONCLUSIONS:

1.  The applicant requests reconsideration of his previously denied multiple requests that his military records be corrected to show that all findings of guilty for the charges and specifications for which he was convicted by a SPCM on    24 July 1968 were set aside with restoration of all rights, privileges, property, forfeitures, back pay, and allowances.  He contends that he is entitled to relief based upon the fact that he was a victim of racial discrimination and that he was never afforded an opportunity for a fair appeal during the past 40 years due to the fact that the former SJA for the Americal Division, COL (Ret) R____t F. C____u, had the authority to deny or approve his request at every level of the appeal process.  

2.  A thorough review of the applicant's military personnel file, record of trial, and the documents provided by the applicant failed to reveal any previous allegations or evidence of racial discrimination or that COL (Ret) C____u played any role in his initial trial proceedings.

3.  Evidence shows that although COL (Ret) C____u provided information to TJAG and the CID regarding the authenticity of SPCMO Number 80, dated 24 November 1968, he was not in a position to render a decision on the applicant's appeals for relief to TJAG or the ABCMR.

4.  The preponderance of contemporaneous evidence shows that SPCMO Number 80, dated 24 November 1968, was not authentic.  The former SJA of the Americal Division attested that SPCMO No. 80 did not relate to the applicant.  The applicant's responses during a polygraph examination consistently indicated deception regarding the suspicious origin of SPCMO Number 80.  A CID lab report, done in conjunction with a CID investigation into this matter, indicated that "documents had been altered."  The applicant was titled in the CID report for false swearing, and altering a public document.

5.  The preponderance of evidence, to include statements rendered on the applicant's behalf, reflect that the applicant did wrongfully appropriate a military vehicle when he used it to transport beer.


6.  Army Regulation 15-185, in pertinent part, provides that the ABCMR is not an investigative body.  The Board will decide cases on the evidence of record.  In light of the fact that the order in question was rendered over 40 years ago and the pertinent official records have since been destroyed, the Board must rely on the previous investigations which were conducted by CID and TJAG.

7.  In order to justify correction of a military record the applicant must show, 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.  In absence of evidence to the contrary, the preponderance of evidence in the available records supports presumption of regularity in the personnel records maintenance process.

8.  Based on the foregoing, it would be inappropriate to grant the requested relief.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

____x___  ___x_____  ___x____  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

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.



      _______ _   _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.



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