RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:           19 May 2005
      DOCKET NUMBER:  AR20040006210


      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. Raymond J. Wagner             |     |Chairperson          |
|     |Ms. Barbara J. Ellis              |     |Member               |
|     |Ms. LaVerne M. Douglas            |     |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, reinstatement of his rank, payment
of separation pay and medical records concerning treatment of his knees.

2.  The applicant states, in effect, that the medical treatment he received
for knee pain during the month of December 1997 was not included in his
medical record. He further states that his medical profile was violated by
the nonjudicial punishment (NJP) he received in November 1997, and that his
separation due to reduction in force was improper and could not be
implemented based on his retention control point (RCP) and misconduct.

3.  The applicant provides a self-authored statement, physical profile form
and separation document (DD Form 214) in support of his application.

CONSIDERATION OF EVIDENCE:

1.  The applicant is requesting correction of an alleged error or injustice
that occurred on 9 January 1998.  The application submitted in this case is
dated
5 August 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 record shows that he enlisted in the Regular Army and
entered active duty on 8 September 1993.  He was trained in, awarded and
served in military occupational specialty (MOS) 19K (Armor Crewman) and the
highest rank he attained while serving on active duty was specialist (SPC).


4.  The applicant’s record shows that during his active duty tenure, he
earned the Army Achievement Medal (3rd Award), National Defense Service
Medal, Army Service Ribbon, Marksman Qualification Badge with Rifle Bar and
Army Lapel Button.  There are no acts of valor documented in his record.
5.  On 29 October 1997, while serving as a SPC at Fort Carson, Colorado,
the applicant was notified that the Commander, 2nd Squadron, 3rd Armored
Cavalry Regiment (ACR), a lieutenant colonel, was considering whether he
should be punished under Article 15 of the Uniform Code of Military Justice
(UCMJ) for being disrespectful in language toward a noncommissioned officer
(NCO) on or about 13 June 1997.

6.  The applicant provides a physical profile form, dated 29 October 1997,
the same date he was notified of the contemplated NJP action.  This
document indicates that he was issued a temporary 3 (T3) profile based on
painful flat feet, for which he was being treated.

7.  On 4 November 1997, the applicant elected not to demand a trial by
court-martial, and instead chose for the matter to be handled by the
2nd Squadron, 3rd ACR Commander under NJP provisions of the UCMJ at a
closed hearing.

8.  On 4 November 1997, the 2nd Squadron, 3rd ACR 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 private/E-1 (PV1), forfeiture of $450.00 per month for two
months and 45 days restriction and extra duty.  On the same day, the
applicant elected not to appeal the punishment imposed.

9.  Headquarters, Fort Carson Orders Number 007-001, dated 7 January 1998,
reassigned the applicant to the transition point for transition processing
on
9 January 1998.  The additional instructions of these orders stipulated
that the applicant was not entitled to separation pay.

10.  On 9 January 1998, the applicant was honorably separated under the
provisions of paragraph 16-8, Army Regulation 635-200, by reason of
reduction in force. The DD Form 214 he was issued at the time confirms he
completed a total of 4 years, 4 months and 2 days of active military
service.

11.  The applicant’s records that were made available to the Board include
no medical treatment records.
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.  Paragraph 3-18 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 also stipulates that the 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.

13.  Paragraph 3-18 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,
to present evidence, to request to be accompanied by a spokesperson, to 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.  Department of the Army Circular 635-92-1, in effect at the time,
provided guidance on separation pay.  Paragraph 2-1 provided the basic
eligibility criteria. It stated, in pertinent part, that in order to
qualify for separation pay, a Soldier must have completed at lease six
years of active service.
DISCUSSION AND CONCLUSIONS:

1.  The contention of the applicant that his receiving an Article 15 was in
violation of his profile was considered.  However, there is insufficient
evidence to support this claim.  The evidence of record confirms that the
applicant was notified of the squadron commander’s intent to handle the
offense in question under the provisions of Article 15.  It further
confirms that 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 the squadron commander.  Subsequent to the hearing, at
which the applicant presented matters of defense, mitigation, and/or
extenuation, NJP was imposed.  The applicant elected not to appeal the
punishment imposed.

2.  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.  In this case, the record clearly shows
the NJP action on the applicant was accomplished in accordance with the
governing regulation.  All requirements of law and regulation were met and
the rights of the applicant were fully protected throughout the NJP
process.  There is no evidence of record that suggests the NJP imposed on
the applicant resulted in a clear injustice.  Therefore, there is an
insufficient evidentiary basis to support restoring his rank at this time.


3.  The applicant’s contention that he was entitled to an RCP bonus, which
is assumed to mean separation pay, was also carefully considered.  However,
the policy in effect at the time required Soldiers to complete at least six
years of active military service in order to qualify for separation pay.
The record confirms the applicant completed just 4 years, 4 months and 2
days of active military service at the time of his separation.  As a
result, he was not eligible to receive separation pay at the time he was
released from active duty.

4.  Further, the applicant’s request for medical treatment records could
not be satisfied.  The military records made available for Board review did
not include medical treatment records, and the Board is not a records
custodian and does not maintain military records.  It conducts its review
with the military records provided by the National Personnel Records Center
and the independent records and evidence provided by applicants.

5.  Records show the applicant should have discovered the alleged error or
injustice now under consideration on 9 January 1998.  Therefore, the time
for him to file a request for correction of any error or injustice expired
on 8 January 2001. 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

___RJW_  __BJE___  ___LMD _  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                 |AR20040006210                           |
|SUFFIX                  |                                        |
|RECON                   |                                        |
|DATE BOARDED            |2005/05/19                              |
|TYPE OF DISCHARGE       |HD                                      |
|DATE OF DISCHARGE       |1998/01/09                              |
|DISCHARGE AUTHORITY     |AR 635-200                              |
|DISCHARGE REASON        |RIF                                     |
|BOARD DECISION          |DENY                                    |
|REVIEW AUTHORITY        |                                        |
|ISSUES         1.       |128.0500                                |
|2.                      |                                        |
|3.                      |                                        |
|4.                      |                                        |
|5.                      |                                        |
|6.                      |                                        |


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