MEMORANDUM OF CONSIDERATION

	IN THE CASE OF: 

	BOARD DATE:            17 October 2000
	DOCKET NUMBER:   AR2000038913

	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	
	Ms. Deborah L. Brantley .		Senior Analyst	

  The following members, a quorum, were present:

	Mr. Raymond V. O’Connor		Chairperson	
	Ms. Barbara J. Ellis		Member	
	Ms. Linda d. Simmons		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 the application was filed within the time established by statute, and if not, whether it would be in the interest of justice to waive the failure to timely file.

	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, restoration to pay grade E-6.  He states, in effect, that he was not guilty of the AWOL (Absent Without Leave) which resulted in his reduction to pay grade E-5.  He notes he was "actually taking the unit bowling team to a tournament."  He states that he believes his 20 years of "honorable service" and his command’s recommendation for promotion to E-6 shows that he is "deserving of E-6."  In support of his request he submits a copy of a June 1982 appeal to his 1982 UCMJ (Uniform Code of Military Justice) action which resulted in his reduction to pay grade E-5 as well as several documents extracted from his Official Military Personnel File attesting to his honorable service.

PURPOSE:  To determine whether the application was submitted within the time limit established by law, and if not, whether it is in the interest of justice to excuse the failure to timely file.

EVIDENCE OF RECORD:  The applicant's military records show:

He entered active duty on 21 December 1964 and served continuously until his retirement for length of service on 31 December 1984. 

The applicant was promoted to pay grade E-6 on 15 November 1975.  He was punished under Article 15 of the UCMJ in July 1981 for failing to go to his appointed place of duty.  His punishment included forfeiture of $100.00 for 
2 months.  In August 1981 he was punished under Article 15 of the UCMJ for disobeying a lawful order.  His punishment included forfeiture of $100.00 for 
2 months and suspended reduction to pay grade E-5.

In June 1982 the applicant was punished under Article 15 of the UCMJ for failing to go to his appointed place of duty.  The applicant requested a closed hearing, indicated that he would not be accompanied by any individuals who would speak on his behalf, and elected to present matters in his own defense.  His punishment included reduction to pay grade E-5.

On 26 June 1982 the applicant appealed the UCMJ action.  In his appeal he noted, in effect, that he had accompanied the unit bowling team to a tournament, as he did annually, but that there was some confusion as to whether he had been allowed to participate as a member of the team or if he was required to report for SQT (Skill Qualification Test) testing as scheduled.  He admits in his appeal that he was at “fault in not properly clearing [his] departure from [his] duty section prior to [his] departure” but notes that he was unable to locate his supervisor.  He also stated that he felt that the reduction in grade “after over 17 years of honorable service” was too severe.

His appeal was denied and the reviewing legal official noted that the “proceedings were conducted in accordance with law and regulation and the punishment imposed was not unjust or disproportionate to the offense committed.”

On 23 November 1983 a Department of the Army bar to reenlistment was imposed on the applicant.  As a result of the bar his name was removed from an E-6 promotion standing list.  At the time the bar was imposed the applicant had over 18 years of active Federal service.  He was, however, permitted to reenlist with a waiver in order to obtain 20 years of active Federal service for the purpose of retirement. 

On 31 December 1984 the applicant was honorably discharged from active duty. His name was placed on the retired rolls in pay grade E-5 the following day.

Army Regulation 27-10 states, in pertinent part, that the decision whether to impose punishment and the nature of the punishment are the sole decisions of the imposing commander.  It also states that pursuant to the authority of the Secretary as set forth in paragraph 5a, Part V, MCM (Manual for Courts-Martial), the grade from which reduced must be within the promotion authority of the imposing commander or of any officer subordinate to the imposing commander. For the purposes of this regulation, the imposing commander or any subordinate commander has "promotion authority" within the meaning of Article 15(b) if the imposing commander has the general authority to appoint to the grade from which reduced or to any higher grade.  Additionally, when a person is reduced in grade as a result of an unsuspended reduction, the date of rank in the grade to which reduced is the date the punishment of reduction was imposed.

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.  Failure to file within 3 years may be excused by a correction board if it finds it would be in the interest of justice to do so.

DISCUSSION:  The alleged error or injustice was, or with reasonable diligence should have been discovered on 31 December 1984, the date the applicant was released from active duty.  The time for the applicant to file a request for correction of any error or injustice expired on 31 December 1987.

The application is dated 26 February 2000 and the applicant has not explained or otherwise satisfactorily demonstrated by competent evidence that it would be in the interest of justice to excuse the failure to apply within the time allotted.

DETERMINATION:  The subject application was not submitted within the time required.  The applicant has not presented and the records do not contain sufficient justification to conclude that it would be in the interest of justice to grant the relief requested or to excuse the failure to file within the time prescribed by law.

BOARD VOTE:

________  ________  ________  EXCUSE FAILURE TO TIMELY FILE

________  ________  ________  GRANT FORMAL HEARING

___bje__  ____lds  ___rvo__  CONCUR WITH DETERMINATION

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

INDEX

CASE ID	AR2000038913	
SUFFIX		
RECON	YYYYMMDD	
DATE BOARDED	20001017	
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.	142.00	
2.		
3.		
4.		
5.		
6.