RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:           10 February 2005
      DOCKET NUMBER:  AR20040001245


      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:

|     |Mr. Fred Eichorn                  |     |Chairperson          |
|     |Mr. Joe R. Schroeder              |     |Member               |
|     |Ms. Laverne V. Berry              |     |Member               |

      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, retroactive restoration of his rank
of staff sergeant (SSG) and back pay and allowances due as a result.

2.  The applicant states, in effect, that he is requesting full restoration
of his rank with back pay from the date he was unjustly reduced in rank.
He states he served his country well and went to war.  He claims he was
never in any trouble throughout his military career and it does not make
sense that he would wait until it was time for him to retire to disobey a
lawful order.  He also indicates that given the Army restored his rank in
2001 and gave him back pay to the date he submitted his request, it would
be appropriate to provide him back pay from the date he was reduced in
rank.

3.  The applicant provides a Grade Determination Worksheet from the Army
Grade Determination Review Board (AGDRB) in support of his application.

CONSIDERATION OF EVIDENCE:

1.  The applicant is requesting correction of an alleged error or injustice
that occurred on 31 October 1992.  The application submitted in this case
is dated
29 April 2004.

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 entered active duty on
16 October 1972.  He was trained in awarded and served in military
occupational specialty (MOS) 91B (Medical Specialist).

4.  The applicant’s Personnel Qualification Record (DA Form 2-1) shows, in
Item 18 (Promotions and Reductions), that he was promoted to SSG on 2
August 1982 and this was the highest rank he attained while service on
active duty.  Item 18 also shows that on 9 March 1988, the applicant was
reduced to the rank of sergeant (SGT) for cause.

5.  On 2 March 1988, while he was serving as a SSG at Fort Stewart,
Georgia, the applicant was notified that his battalion commander was
considering whether he should be punished under Article 15 of the Uniform
Code of Military Justice (UCMJ) for disobeying a lawful order.  Additional
offenses may have been involved; however, while the DA Form 2627 (Record of
Proceedings Under Article 15, UCMJ) on file indicates there was an attached
sheet, this attachment is not on file the applicant’s Official Military
Personnel File (OMPF).

6.  On 9 March 1988, the applicant elected not to demand a trial by court-
martial, and instead chose for the matter to be handled by his battalion
commander at a closed hearing.

7.  On 9 March 1988, the applicant’s battalion commander, after having
considered all matters presented in defense, mitigation and/or extenuation
at a closed hearing, imposed the following punishment on the applicant:
reduction to the grade of E-5 and a forfeiture of $250.00 pay per month for
two months.  The total forfeiture was suspended until 9 September 1988.

8.  On 9 March 1988, the applicant appealed the punishment imposed.  On
15 March 1988, the Judge Advocate (JA) representative, after considering
the appeal, opined that the proceedings were conducted in accordance with
law and regulation and the punishment imposed was not unjust or
disproportionate to the offense committed.

9.  On 21 March 1988, the appellate authority considered all matters
presented and denied the applicant’s appeal.

10.  On 2 October 1992, the applicant was honorably released from active
duty for the purpose of voluntary retirement.  The separation document
(DD Form 214) he was issued at the time confirms he held the rank of SGT
and that he had completed a total of 20 years and 15 days of active
military service.

11.  On 31 July 2003, the AGDRB reviewed the applicant’s case and voted to
advance him to the rank of SSG on the Retired List under the provisions of
Title 10 of the United States Code, section 3964 (10 USC 3964).

12.  Army Regulation 27-10 (Military Justice) prescribes the policies and
procedures pertaining to the administration of military justice.  Chapter 3
implements and amplifies Article 15, UCMJ.

13.  Paragraph 3-18 of the military justice regulation contains guidance on
notification procedures and explanation of rights.  It states, in pertinent
part, that the imposing commander will ensure that the Soldier is notified
of the commander's intention to dispose of the matter under the provisions
of Article 15. It further stipulates that Soldier will be informed of the
following:  the right to remain silent, that he/she is not required to make
any statement regarding the offense or offenses of which he/she is
suspected, that any statement made may be used against the Soldier in the
Article 15 proceedings or in any other proceedings, including a trial by
court-martial.  It further states the Soldier will be informed of the right
to counsel, to demand trial by court-martial, to fully present his/her case
in the presence of the imposing commander, to call witnesses, present
evidence, request to be accompanied by a spokesperson, an open hearing and
to examine available evidence.

14.  Paragraph 3-28 of the military justice regulation provides guidance on
setting aside punishment and restoration of rights, privileges, or property
affected by the portion of the punishment set aside.  It states, in
pertinent part, that the basis for any set aside action is a determination
that, under all the circumstances of the case, the punishment has resulted
in a clear injustice.  "Clear injustice" means that there exists an
unwaived legal or factual error that clearly and affirmatively injured the
substantial rights of the soldier.  An example of clear injustice would be
the discovery of new evidence unquestionably exculpating the Soldier.

15.  Paragraph 3-28 further states that clear injustice does not include
the fact that the Soldier's performance of service has been exemplary
subsequent to the punishment or that the punishment may have a future
adverse effect on the retention or promotion potential of the soldier.  It
further states that normally, the Soldier's uncorroborated sworn statement
will not constitute a basis to support the setting aside of punishment.

16.  Army Regulation 635-200 sets forth the basic authority for the
separation of enlisted personnel.  Chapter 12 sets policies and procedures
for voluntary retirement of soldiers because of length of service.
Paragraph 12-3b states, in pertinent part, that retirement will be in the
Regular or Reserve grade the soldier holds on the date of retirement as
directed in 10 USC 3961.

17.  Paragraph 12-6 (Advancement on the Retired List) contains guidance on
the advancement of soldiers on the Retired List.  It states, in pertinent
part, that retired soldiers are entitled to be advanced on the Retired List
to the highest grade they held and in which they satisfactorily served on
active duty when their active service plus service on the retired list
totals 30 years.  The legal authority for this action is provided by 10 USC
3964.
DISCUSSION AND CONCLUSIONS:

1.  The applicant’s contention that his reduction was unjust and that he
should have his rank restored and receive back pay from the date of the
reduction was carefully considered.  However, there is insufficient
evidence to support this claim.

2.  The evidence of record confirms that the applicant was notified of the
battalion commander’s intent to handle the offense(s) in question under the
provisions of Article 15.  After being afforded the opportunity to consult
with legal counsel, the applicant elected not to demand a trial by court-
martial and chose to have his case disposed of through Article 15
proceedings at a closed hearing with his battalion commander.  Subsequent
to the hearing, at which the applicant presented matters of defense,
mitigation, and/or extenuation, punishment was imposed.  The applicant
appealed the punishment and after a legal review determined it was legally
sufficient, the appellate authority denied his appeal.

4.  By regulation, the basis for any set aside action is a determination
that, under all the circumstances of the case, the punishment resulted in a
clear injustice. "Clear injustice" means that there exists an unwaived
legal or factual error that clearly and affirmatively injured the
substantial rights of the Soldier.  There is no such evidence of a fatal
legal or factual error that would support setting aside the punishment
imposed on the applicant, to include the reduction now in question.

5.  The applicant’s claim that the advancement action of the AGDRB supports
his request for back pay was also considered.  However, the AGDRB
advancement action was accomplished under the provisions of 10 USC 3964,
which provides the legal authority to advance enlisted members to the
highest rank in which they satisfactorily served on the Retired List.
Advancement under this provision of the law is authorized only after the
member’s active duty service plus service on the Retired List totals 30
years.  This authority is limited to advancement on the Retired List after
30 years and does not support reinstatement to a rank and back pay to the
date of reduction as requested by the applicant.

6.  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.
7.  Records show the applicant should have discovered the alleged error or
injustice now under consideration on 31 October 1992.  Thus, the time for
him to file a request for correction of any error or injustice expired on
30 October 1995.  However, he failed to 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
timely file in this case.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF

________  ________  ________  GRANT PARTIAL RELIEF

________  ________  ________  GRANT FORMAL HEARING

___JRS _  ___FE __  ___LVB__  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

1.  The Board determined that the evidence presented does not demonstrate
the existence of a probable error or injustice.  Therefore, the Board
determined that the overall merits of this case are insufficient as a basis
for correction of the records of the individual concerned.

2.  As a result, the Board further determined that there is no evidence
provided which shows that it would 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.  Therefore, there is insufficient
basis to waive the statute of limitations for timely filing or for
correction of the records of the individual concerned.




            ____Fred Eichorn_______
                    CHAIRPERSON




                                    INDEX

|CASE ID                 |AR20040001245                           |
|SUFFIX                  |                                        |
|RECON                   |                                        |
|DATE BOARDED            |2005/02/10                              |
|TYPE OF DISCHARGE       |HD                                      |
|DATE OF DISCHARGE       |1992/10/31                              |
|DISCHARGE AUTHORITY     |AR 635-200                              |
|DISCHARGE REASON        |Retirement                              |
|BOARD DECISION          |DENY                                    |
|REVIEW AUTHORITY        |                                        |
|2.  310                 |131.0000                                |
|2.                      |                                        |
|3.                      |                                        |
|4.                      |                                        |
|5.                      |                                        |
|6.                      |                                        |


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