MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:     

	BOARD DATE:           30 April 2002 
	DOCKET NUMBER:   AR2001064259

	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	
	Mr. G. E. Vandenberg		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 opinions, if any).

APPLICANT REQUESTS:  That he be restored to Sergeant (E-5), the highest grade he held. 

The applicant indicates that the date of discovery of the alleged error or injustice was October 2001.  He states it would be in the interest of justice for the Board to consider this application because he did not know that he could make this type of request.

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 that:

The applicant entered active duty on 16 November 1970.  He completed basic combat training and advanced individual training with award of the military occupational specialty (MOS) 71B (Clerk Typist). 

The applicant had continuous service from the date of his enlistment until he was medically retired in April 1986.  His assignments included 7 months in Vietnam, two tours in Germany, 35 months and 24 months respectfully, and a 12-month tour in Korea.  The applicant was promoted to sergeant (E-5), highest pay grade he held, on 10 November 1979.

On 3 October 1983, while serving in Mainz, Germany, the applicant acknowledged that the battalion commander was considering nonjudicial punishment (NJP) under Article 15, Uniformed Code Military Justice (NJP) for selling US Tax Free Goods to an unauthorized person.  

The applicant consulted with counsel and waived his right to demand a trial by court-martial.  He requested a closed hearing, declined to have another person speak in his behalf, and he indicated that matters in defense, mitigation and/or extenuation would be presented in person.  

On 3 October 1983, the battalion commander imposed punishment consisting solely of a reduction to the grade of E-4 and directed that the DA Form 2627 be filed on the performance fiche of the applicant’s Official Military Personnel File.  The applicant appealed the NJP to the brigade commander and the NJP action was upheld.

The applicant developed chronic mastoiditis and hypertension, which resulted in his referral to a medical evaluation board (MEB) and physical evaluation board (PEB) in 1985.  The PEB found that the applicant’s conditions significantly impaired his ability to serve and recommended that he be medically retired.
On 14 April 1986, the applicant was medically retired and placed on the permanent physical disability list with a 50% evaluation, in pay grade E-4.

The Army Grade Determination Review Board (AGDRB) reviewed the applicant’s file on 9 October 1986, and in a unanimous decision held that the applicant’s service as an E-5 was unsatisfactory based on the two NJP actions.  The first NJP is not of record but is reported as occurring 27 July 1976 for bartering of US tax free items. 

Army Regulation 27-10 provides policy for the administration of military justice.  Chapter 3 provides that nonjudicial punishment is appropriate in all cases involving minor offenses in which non-punitive measures are considered inadequate or inappropriate.  It is a tool available to commanders to correct, educate and reform offenders whom the commander determines cannot benefit from less stringent measures; to preserve a member's record of service from unnecessary stigma by record of court-martial conviction; and to further military efficiency by disposing of minor offenses in a manner requiring fewer resources than trial by court-martial.  The imposing commander is not bound by the formal rules of evidence and may consider any matter, including un-sworn statements the commander reasonably believed to be relevant to the case.  Furthermore, whether to impose punishment and the nature of the punishment are the sole decisions of the imposing commander.

Chapter 3 of the regulation further provides that an NJP may be set aside upon a determination that, under all the circumstances of the case a clear injustice has resulted.  A clear injustice means that an unwaived legal or factual error has clearly and affirmatively injured the substantial rights of the soldier.  New evidence unquestionably exculpating the individual is a cited example whereas the fact that a soldier's subsequent performance has been exemplary or that the punishment adversely affects career potential is expressly excluded from the definition of clear injustice.

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 9 October 1986, the date of the AGDRB decision.  The time for the applicant to file a request for correction of any error or injustice expired on 9 October 1989.

The application is dated 19 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	AR2001064259	
SUFFIX		
RECON		
DATE BOARDED	20020430	
TYPE OF DISCHARGE		
DATE OF DISCHARGE		
DISCHARGE AUTHORITY		
DISCHARGE REASON		
BOARD DECISION	Deny	
REVIEW AUTHORITY		
ISSUES         1.	129.06	
2.		
3.		
4.		
5.		
6.