RECORD OF PROCEEDINGS

	IN THE CASE OF:  

	BOARD DATE:                              
	DOCKET NUMBER:   AR2003090731

	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	
	Mrs. Victoria A. Donaldson		Analyst	

  The following members, a quorum, were present:

	Mr. Walter T. Morrison		Chairperson	
	Mr. Allen L. Raub		Member	
	Mr. Kenneth W. Lapin		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 that the Article 15, dated 31 January 1996, be expunged from his military records.

2.  The applicant states that he was "chaptered" out of the Army due to bias and prejudice by a Company Commander and a Battalion Commander who had not administered the Article 15.  The applicant continues that he believes that his reenlistment contract was wrongfully terminated.

3.  The applicant provides a copy of DA Form 4833 (Commander's Report of Disciplinary or Administrative Action), a copy of DA Form 3340-R (Request for Reenlistment or Extension in the Regular Army) and a copy of DD Form 4/1 (Enlistment/Reenlistment Document).

CONSIDERATION OF EVIDENCE: 

1.  The applicant is requesting correction of error which occurred on 30 April 1997.  The application submitted in this case is dated 5 May 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 records show that he served in the Virginia Army National Guard for the period 3 March 1989 through 2 March 1992 at which time he was honorably separated.  The applicant enlisted in the Regular Army on 5 February 1993.  He reenlisted on 8 November 1995 and served until he was honorably separated on 30 April 1997.

4.  DA Form 2627 (Record of Proceedings Under Article 15, UCMJ), dated 30 January 1996, shows that while assigned to C Company, 82nd Engineer Battalion, nonjudical punishment was imposed against the applicant for wrongful use of cocaine on or about 17 December 1995 and 20 December 1995.  His punishment consisted of reduction to private/pay grade (E-2), forfeiture of $478 per months for 2 months and extra duty for 45 days.

5.  There is no evidence in the available records which shows that the applicant received any other disciplinary actions.

6.  On 30 April 1997, the applicant was separated from active duty.  His DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge) contained in block 26 (Separation Code) the entry "JKQ" and in block 27 (Reentry Code) the entry "RE3."  Block 24 (Character of Service) of the applicant's DD Form 214 contains the entry "Under Honorable Conditions (General)."

7.  The applicant appealed to the Army Discharge Review Board Agency (ADRB) and that agency granted the applicant relief.  The applicant's DD Form 214 was corrected by amending block 26 to read "LFF" and block 27 to read "RE-1" and by amending block 24 to read "Honorable." 

8.  Army Regulation 27-10 (Military Justice), in pertinent part, states the applicable policies for nonjudicial punishment.  The regulation states that nonjudicial punishment may be imposed to correct, educate, and reform offenders who the imposing commander determines cannot benefit from less stringent measures; preserve a soldier’s record of service from unnecessary stigma by record of court-martial conviction; or further military efficiency by disposing of minor offenses in a manner requiring less time and personnel than trial by court-martial. All Article 15 actions, including notification, acknowledgment, imposition, filing determinations, appeal, action on appeal, or any other action taken prior to action being taken on an appeal, except summarized proceedings will be recorded on DA Form 2627.  The regulation also states that absent compelling evidence, a properly completed, valid DA Form 2627 will not be removed from a soldier’s record.     

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends that the Article 15 was erroneously used to remove him from the active Army by a battalion commander and a company commander. The applicant has failed to provide evidence that supports this contention.  Therefore, this claim is without merit.

2.  Evidence of record shows that the applicant received nonjudical punishment for unlawful use of cocaine.

3.  There is no evidence and the applicant has failed to provide evidence that the Article 15 was unjust or in error or that it was improperly tendered.  Therefore, there is no basis for removal of the Article 15.  

4.  Army Regulation 27-10 and Army Regulation 15-185 (Policy and Procedures for Applying to the Army Board for Correction of Military Records specifically preclude the removal of a valid DA form 2627 from a soldier's record, by the Army Board for Correction of Military Records, without compelling evidence.  There is no compelling evidence to support removal of the applicant's nonjudicial punishment; therefore, this record will not be expunged.

5.  Records show the applicant should have discovered the error or injustice now under consideration on 30 April 1997, the date of his separation; therefore, the time for the applicant to file a request for correction of any error or injustice expired on 29 April 2000.  However, the applicant 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 in this case.

BOARD VOTE:

________  ________  ________  GRANT RELIEF 

________  ________  ________  GRANT FORMAL HEARING

__WTM__  __ALR __  _KWL___  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	AR2003090731	
SUFFIX		
RECON	YYYYMMDD	
DATE BOARDED	2003/12/04	
TYPE OF DISCHARGE	(HD, GD, UOTHC, UD, BCD, DD, UNCHAR)	
DATE OF DISCHARGE	YYYYMMDD	
DISCHARGE AUTHORITY	AR . . . . .  	
DISCHARGE REASON		
BOARD DECISION	Deny	
REVIEW AUTHORITY	Mr. Chun	
ISSUES         1.		
2.		
3.		
4.		
5.		
6.