MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:     

	BOARD DATE:           30 APRIL 2002                   
	DOCKET NUMBER:   AR2002067659

	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. Arthur A. Omartian		Chairperson	
	Mr. Hubert O. Fry, Jr.		Member	
	Mr. Thomas E. O’Shaughnessy, Jr.		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, that his rank of Specialist (pay grade E-4) be restored.  The applicant states, in a self-authored statement, that he and another soldier were told by a sergeant (pay grade E-5) to help return some records to their section when they were finished with customers they were then assisting.  He notes that “a few minutes” later that same sergeant returned and angrily questioned the applicant and the other soldier regarding why they had not yet gone to assist in returning the records.  The applicant indicated that he told the sergeant that she had instructed them to finish with their customers first.  He notes that she became more upset and told him that he had “failed to carryout a direct order so therefore, [she was] recommending that [he] be given a Summarized Article 15.”  The applicant states that he received the UCMJ (Uniform Code of Military Justice) action on 29 October 1991 and that his punishment included reduction to pay grade E-1, forfeiture, restriction and extra duty (which was suspended).  The applicant indicated that on 4 November his unit commander told him he had been a little hasty in imposing punishment but felt that while he could suspend the extra duty and restriction he could not suspend the reduction and forfeiture because it could make his leadership abilities appear weak.  The applicant stated that he then “requested to exit the service” and his commander told him “granted.”  In addition to the self-authored statement regarding the circumstances of the UCMJ action, the applicant also submits a lengthy statement regarding his overall military service, a copy of his resume, and copies of documents reflecting his personal achievement following his release from active duty.

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 8 March 1983.  He successfully completed training and was initially assigned to Fort Campbell, Kentucky, in the military personnel arena. He was promoted to pay grade E-4 in March 1985 and in January 1986 was transferred to Germany.  By the time the applicant departed Germany, in February 1990, he had been awarded two Army Good Conduct Medals, an Army Achievement Medal, and reenlisted for a second time.  His scheduled separation date, as a result of his last reenlistment in 1989, was 27 December 1992.

The applicant’s records indicate that he was removed from the Primary Leadership Development Course (PLDC) in March 1988 for academic reasons.  His academic evaluation report notes that the applicant failed the “Second-Week Examination three consecutive times.”  It noted specifically that the applicant “experienced difficulties” in the area of after action review, keeping seniors and subordinates informed, the character of a leader, problem solving and decision making, leadership styles, and principles of motivation.  In April 1989 the applicant was re-enrolled in PLDC and completed the course after he “achieved course standards.”

The applicant arrived at Fort Carson, Colorado in April 1990 and was ultimately assigned to the Customer Service Section of the 4th Personnel Services Company.

On 29 October 1991 the applicant was punished under Article 15 of the UCMJ for being “disrespectful in deportment toward SGT D, an NCO then known by your [sic] to be an NCO, who was in the execution of her office, by cursing and arguing with her.”  Contrary to the applicant’s contention it was not a “summarized” proceeding.  The proceedings were recorded on a DA Form 2627 (Record of Proceedings under Article 15, UMCJ) and not a DA Form 2627-1 (Summarized Record of Proceedings Under Article 15, UCMJ).  His punishment included reduction to pay grade E-1, forfeiture, restriction, and extra duty (which was suspended for 30 days).

The applicant indicated his intention not to appeal the UCMJ action on 
4 November 1991.

On 7 November 1991 the applicant submitted a request to be administratively separated from the Army under the provisions of the FY 92 Enlisted Voluntary Early Transition Program.  He requested a separation date of 28 January 1992.

His request was approved, and on 28 January 1992 the applicant was released from active duty, in pay grade E-1, with an honorable characterization of service.

Army Regulation 27-10, then in effect, stated that nonjudicial punishment is imposed to correct misconduct in violation of the UCMJ.  Such conduct may result from intentional disregard of or failure to comply with prescribed standards of military conduct.  The regulation also provides, in pertinent part, that the imposing commander can “mitigate a reduction in grade to a forfeiture of pay,” up to 4 months after the punishment has been executed.  It notes that mitigation is appropriate when the recipient has, by the recipient’s subsequent good conduct, merited a reduction in the severity of the punishment or the punishment imposed was disproportionate to the offense of the offender.

There is no evidence, nor has the applicant provided any, that his UCMJ action was in error or unjust.  His contention that his commander subsequently informed him that he would like to suspend the reduction but was concerned about the appearance of such an action, is not supported by any evidence of record, nor submitted by the applicant.  

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 28 January 1992, 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 28 January 1995.

The application is dated 26 October 2001 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.  Prior to reaching this determination the Board looked at the applicant's entire file.  It was only after all aspects of his case had been considered and it had been concluded that there was no basis to recommend a correction of his record that the Board considered the statute of limitations.  Had the Board determined that an error or injustice existed it would have recommended relief in spite of the applicant's failure to submit his application within the three-year time limit.

BOARD VOTE:

________  ________  ________  EXCUSE FAILURE TO TIMELY FILE

________  ________  ________  GRANT FORMAL HEARING

__AAO__  __HOF __  __TEO __  CONCUR WITH DETERMINATION

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

INDEX

CASE ID	AR2002067659	
SUFFIX		
RECON	YYYYMMDD	
DATE BOARDED	20020430	
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.