RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:           19 April 2005
      DOCKET NUMBER:  AR20040004348


      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. Nancy L. Amos                |     |Analyst              |

      The following members, a quorum, were present:

|     |Mr. Raymond J. Wagner             |     |Chairperson          |
|     |Mr. Larry C. Bergquist            |     |Member               |
|     |Mr. Larry J. Olson                |     |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 that his Article 15, dated March 1987, be
determined to have been invalid, that his rank of Staff Sergeant, E-6 be
restored, and that he be advanced on the retired list to Sergeant First
Class, E-7.

2.  The applicant states that he received the Article 15 while his unit was
attached to the 4th Battalion, 40th Armor for a training exercise.  Major
P___ administered the Article 15 to him, which was not in accordance with
Army Regulation 27-10, paragraph 3-7(b)(3) which states that delegations of
authority to exercise field grade Article 15 power will be made in writing;
e.g. a disposition form or a letter.

3.  The applicant states that he feels he was treated unjustly based on the
fact he was not a member of the battalion first of all and the alleged
allegations were unfounded and unproven.  If the allegation was true, his
battalion commander could have administered the punishment.  He sought
legal counsel from the Staff Judge Advocate's (SJA's) office at Fort
Carson.  Someone at the SJA called the 4th Battalion, 40th Armor personnel
center and informed them he was seeking legal counsel.  He was then told by
the battalion sergeant major that he (the sergeant major) was going to make
sure he got what was coming to him and no one on Fort Carson was going to
help him.  He continued to address this injustice after he was sent to
Korea and also after he was reassigned from Korea to Fort Benning, GA.  His
20 years in the military were not perfect, but he did serve his country
with dignity and pride, receiving two meritorious service medals.

4.  The applicant provides a 16 July 1991 letter from the U. S. Army Trial
Defense Service (TDS), Fort Benning, GA; an 18 November 1990 letter from
TDS, Headquarters, 24th Infantry Division; a 12 December 1990 1st
endorsement from the Director of Information Management, Fort Carson, CO; a
 9 May 1991 letter from the Records Management Officer, Fort Carson, CO; an
 11 September 1991 letter from the Brigade Executive Officer, 3d Brigade,
24th Infantry Division, Fort Benning, GA; a 5 September 1991 letter from
the applicant's company commander; a 26 September 1991 letter from the
applicant's battalion commander; a letter to the Assistant Secretary of the
Army (Manpower and Reserve Affairs), dated 6 July 2004; and his Certificate
of Retirement.

COUNSEL'S REQUEST, STATEMENT AND EVIDENCE:

Counsel states, in effect, that in a previous case the Board did not
address the issue regarding due process and the proper convening authority
for the Article 15.  In that light, counsel offers that the evidence of
record will demonstrate that it is in the interest of justice to review
this application for a determination on this issue.

CONSIDERATION OF EVIDENCE:

1.  The applicant is requesting correction of an alleged error or injustice
which occurred on 31 July 1993.  The application submitted in this case is
dated 19 July 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 limitations 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 military records are not available to the Board.  This
case is being considered using reconstructed records, which primarily
consist of the documents provided by the applicant, a previous ABCMR case
(Docket Number AC89-02917, dated 16 May 1990), and an Army Grade
Determination Review Board case, dated 20 June 2003.

4.  According to the Grade Determination Worksheet, the applicant enlisted
in the Regular Army on 3 July 1973.  He was promoted to Staff Sergeant, E-6
on
9 June 1980.

5.  According to the Department of the Army Suitability Evaluation Board
(DASEB) Summary, the applicant accepted nonjudicial punishment (NJP) under
Article 15, Uniform Code of Military Justice (UCMJ) on 10 September 1985
for making a false statement, failing to obey a lawful general regulation,
failing to obey a lawful order, and driving after drinking.  This Article
15 was filed in the restricted portion of his Official Military Personnel
File (OMPF).

6.  The Article 15 in question was accepted on 12 March 1987 for wrongfully
borrowing $20.00 from a private.  The DA Form 2627 (Record of Proceedings
under Article 15,UCMJ) had a continuation sheet but it is not available.
The Grade Determination worksheet indicates the total amount borrowed from
several subordinates was $665.00.  The Article 15 was issued by Major P___,
Commander, 4th Battalion, 40th Armor, Fort Carson, CO.  The punishment was
a reduction to Sergeant, E-5.

7.  The applicant appealed the punishment.  A Staff Judge Advocate captain
considered his appeal and opined that the proceedings were conducted in
accordance with law and regulations and the punishment imposed was not
unjust or disproportionate to the offenses committed.  His appeal was
denied by the Commander, 3d Brigade, 4th Infantry Division, a colonel, O-6.


8.  The applicant was promoted to Staff Sergeant, E-6 on 1 August 1988 but
his promotion was revoked on 5 August 1988, apparently because he was in a
nonpromotable status following a drunk driving offense on 2 June 1988 (for
which he received a letter of reprimand on 4 October 1988).

9.  On 14 October 1988, a Department of the Army Qualitative Management
Program bar to reenlistment was imposed against the applicant based upon
the March 1987 Article 15 and a related relief-for-cause Enlisted
Evaluation Report.  As the restricted portion of the OMPF is normally not
available to selection boards for review, the September 1985 Article 15 was
not considered by the board that imposed the bar to reenlistment.  The
applicant appealed the bar to reenlistment but his appeal was denied.

10.  On an unknown date, the applicant was recommended for separation under
the provisions of Army Regulation 635-200, chapter 13 for unsatisfactory
performance.  He apparently appeared before a board of officers which
recommended he be retained on active duty.  The recommendation was
approved, and he remained on active duty.

11.  On 18 November 1990, while he was deployed in support of Operation
Desert Shield/Storm, the applicant's TDS defense counsel requested, from
the Directorate of Information Management, 4th Infantry Division and Fort
Carson, Fort Carson, CO, assistance in verifying the existence of Major
P___'s temporary assumption of command around March 1986.

12.  On 12 December 1990, the Fort Carson Director of Information
Management responded to the 18 November 1990 request by stating that a
document concerning Major P___'s temporary assumption of command could not
be located.

13.  On or about 16 July 1991, the applicant initiated a request to the
Department of the Army Suitability Evaluation Board (DASEB) for removal of
the March 1987 Article 15 from his records due to the fact Major P___ did
not possess the authority (because no assumption of command document had
been issued) to impose it.

14.  The DASEB denied the applicant's request to remove the March 1987
Article 15 around January 1992.

15.  The applicant retired, as a Sergeant, E-5, on 1 August 1993.

16.  On 6 May 2003, the applicant requested he be advanced on the retired
list to the highest grade that he satisfactorily held while on active duty.
 On 20 June 2003, the Army Grade Determination Review Board denied his
request.  It noted his March 1987 Article 15 and related relief-for-cause
Enlisted Evaluation Report and his bar to reenlistment.  It did not note
his September 1985 Article 15.  It did note a January 1993 Article 15 for
use of cocaine (however, according to the applicant, this Article 15
belonged to another Soldier and was misfiled in the applicant's records).

17.  Army Regulation 27-10 (Military Justice) prescribes policies and
procedures pertaining to the administration of military justice.  Paragraph
3-7a of the version in effect at the time (effective 1 August 1984, with
change 3 dated 25 September 1986 and effective 1 October 1986), stated
that, unless otherwise specified in this regulation or if authority to
impose NJP had been limited or withheld by a superior commander, any
commander is authorized to exercise the disciplinary powers conferred by
Article 15.

18.  Army Regulation 27-10, paragraph 3-7b stated that the authority given
to a commander under Article 15 is an attribute of command and, except as
provided in this paragraph, could not be delegated.  Paragraph 3-7b(1)
stated that any commander authorized to exercise general court-martial
jurisdiction or any commanding general could delegate his or her powers
under Article 15 to the commissioned officer actually exercising the
function of deputy or assistant commander or to the chief of staff of the
command, provided the chief of staff was a general officer.  Paragraph 3-
7b(3) stated that delegations of authority to exercise Article 15 powers
would be made in writing, e.g., a disposition form or letter.

19.  Army Regulation 600-20 (Army Command Policy and Procedures), paragraph
3-1b of the version in effect at the time (dated 20 August 1986 and
effective 19 September 1986) stated that assumption of command would be
announced in a memorandum, military letter, or disposition form.  Paragraph
     3-1b(1) stated that oral assumption of command could be used by units
that did not use orders or other documentation to announce assumption of
command or with proper authority when other circumstances necessitated.

DISCUSSION AND CONCLUSIONS:

1.  The applicant acknowledges that his unit was attached to the 4th
Battalion, 40th Armor for a training exercise.  In the absence of evidence
to the contrary, the Board presumes that the 4th Battalion, 40th Armor was
given UCMJ jurisdiction over the applicant's unit for the period of the
attachment.

2.  The applicant provides no evidence to show that the "alleged
allegations" against him were unfounded and unproven.

3.  Army Regulation 27-10, paragraph 3-7a stated that any commander was
authorized to exercise the disciplinary powers conferred by Article 15
unless otherwise specified in the regulation or if authority to impose NJP
had been limited or withheld by a superior commander.  Paragraph 3-7b
stated that the authority given to a commander under Article 15 was an
attribute of command and, except as provided in this paragraph, could not
be delegated.

4.  Army Regulation 27-10, paragraph 3-7b(1) made an exception to the
provision that a commander's authority under Article 15 could not be
delegated.  It stated that any commander authorized to exercise general
court-martial jurisdiction or any commanding general could delegate his or
her powers under Article 15 to the commissioned officer actually exercising
the function of deputy or assistant commander or to the chief of staff of
the command (emphasis added), provided the chief of staff was a general
officer.  Paragraph 3-7b(3) stated that delegations of authority to
exercise Article 15 powers would be made in writing, e.g., a disposition
form or letter.

5.  Major P___'s authority to issue the March 1987 Article 15 to the
applicant fell under Army Regulation 27-10, paragraph 3-7a and 3-7b.  As he
was a commander, and not the command's deputy or assistant commander or
chief of staff, he did not need Article 15 powers to be delegated to him.

6.  In accordance with Army Regulation 600-20, paragraph 3-1b(1) of the
version in effect at the time, oral assumption of command could be used by
units that did not use orders or other documentation to announce assumption
of command.  The fact that assumption of command orders or other
documentation could not be located is insufficient evidence that Major P___
was not the lawful commander.

7.  The fact that the Staff Judge Advocate's office reviewed the March 1987
Article 15 and found the proceedings to have been conducted in accordance
with
law and regulations, and the fact that the 3d Brigade commander signed the
DA Form 2627 denying the applicant's appeal without questioning Major
P___'s authority to issue the Article 15, show by a preponderance of the
evidence that Major P___ had the authority to issue the Article 15.

8.  Since there is insufficient evidence to show that the applicant's March
1987 Article 15 was invalid, there is insufficient evidence on which to
show that his rank of Staff Sergeant, E-6 should be restored or that he be
advanced on the retired list to Sergeant First Class, E-7.

9.  Records show the applicant should have discovered the alleged error or
injustice now under consideration on 31 July 1993; therefore, the time for
the applicant to file a request for correction of any error or injustice
expired on         30 July 1996.  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 timely file in this case.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF

________  ________  ________  GRANT PARTIAL RELIEF

________  ________  ________  GRANT FORMAL HEARING

__rjw___  __lcb___  __ljo___  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.




            ___Raymond J. Wagner__
                    CHAIRPERSON

                                    INDEX

|CASE ID                 |AR20040004348                           |
|SUFFIX                  |                                        |
|RECON                   |                                        |
|DATE BOARDED            |20050419                                |
|TYPE OF DISCHARGE       |                                        |
|DATE OF DISCHARGE       |                                        |
|DISCHARGE AUTHORITY     |                                        |
|DISCHARGE REASON        |                                        |
|BOARD DECISION          |DENY                                    |
|REVIEW AUTHORITY        |Mr. Chun                                |
|ISSUES         1.       |126.00                                  |
|2.                      |131.00                                  |
|3.                      |136.06                                  |
|4.                      |                                        |
|5.                      |                                        |
|6.                      |                                        |


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