RECORD OF PROCEEDINGS

	IN THE CASE OF:       

	BOARD DATE:             20 November 2003                  
	DOCKET NUMBER:     AR2003085199

	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:

	Ms. Joann H. Langston		Chairperson	
	Ms. Linda D. Simmons		Member	
	Mr. Robert L. Duecaster		Member	

	The applicant and counsel if any, did not appear before the Board.

	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, reinstatement of his rank to specialist/E-4 (SPC/E-4). 

2.  The applicant states, in effect, that he should not have been reduced to private/E-1 (PV1) because he informed Army officials that he was using drugs.  He states that his only wish is that his separation document list his rank as 
SPC/E-4.  

3.  The applicant provides no supporting documents.  

CONSIDERATION OF EVIDENCE: 

1.  The applicant is requesting correction of a reduction action which occurred on 14 March 1992.  The application submitted in this case is dated 7 January 2003.  

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 limitation if the ABCMR 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 record shows that he initially enlisted in the Army and entered active duty on 28 February 1989.  He was trained in, awarded, and served in military occupational specialty (MOS) 19K (M-1 Armor Crewman).  

4.  The applicant’s Personnel Qualification Record (DA Form 2-1) shows that the applicant was promoted to SPC/E-4 on 1 November 1990, and this was the highest rank he held while serving on active duty.  Item 18 (Appointments and Reductions) also shows that he was reduced from SPC/E-4 to PV1 on 14 March 1992.  

5.  On 14 March 1992, the applicant after deciding not to demand trial by 
court-martial, accepted nonjudicial punishment (NJP) under the provisions of Article 15 of the Uniform Code of Military Justice (UCMJ), for wrongfully using a controlled substance, to wit cocaine, on or about 18 February 1992.  The resultant punishment included a reduction to PV1.  The applicant also elected not to appeal the punishment imposed.  

6.  The record further shows that the applicant was ultimately discharged under other than honorable conditions under the provisions of chapter 14, Army Regulation 635-200, by reason of misconduct.  At the time of his discharge, he had completed a total of 3 years, 4 months, and 26 days of active military service.  

7.  On 13 June 2003, the Army Discharge Review Board voted to upgrade the applicant’s discharge to fully honorable based on his overall record of service.  

DISCUSSION AND CONCLUSIONS:

1.  The evidence of record confirms the imposition of NJP under the provisions of Article 15 of the UCMJ was properly accomplished in accordance with the applicable law and regulation.  

2.  The record further shows that the applicant elected not to demand trial by 
court-martial and accepted the NJP action administered by his commander.  In addition, he chose not to appeal the punishment imposed, which included his reduction to PV1.  Therefore, there appears to be no error or injustice related to the applicant’s reduction to PV1.  

3.  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.  The applicant has failed to submit evidence that would satisfy this requirement.  

BOARD VOTE:

________  ________  ________  GRANT RELIEF 

________  ________  ________  GRANT FORMAL HEARING

__JHL__  __LDS__  __RLD     _  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

The Board determined that the evidence presented and the merits of this case are insufficient to warrant the relief requested, and therefore, it would not 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.    

		______________________
		        CHAIRPERSON

INDEX

CASE ID	AR2003085199	
SUFFIX		
RECON		
DATE BOARDED	2003/11/	
TYPE OF DISCHARGE	HD	
DATE OF DISCHARGE	1992/07/28	
DISCHARGE AUTHORITY	AR 635-200 C14	
DISCHARGE REASON	Misconduct	
BOARD DECISION	DENY	
REVIEW AUTHORITY		
ISSUES         1.  803	144.9213	
2.		
3.		
4.		
5.		
6.