RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:        14 DECEMBER 2004
      DOCKET NUMBER:  AR2004104623


      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. Kenneth H. Aucock             |     |Senior Analyst       |

      The following members, a quorum, were present:

|     |Ms. Jennifer Prater               |     |Chairperson          |
|     |Mr. Lester Echols                 |     |Member               |
|     |Ms. Diane Armstrong               |     |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 the record of nonjudicial punishment and
allied documents be expunged from his OMPF (Official Military Personnel
File).

2.  The applicant states that the time period for retention has expired.

3.  The applicant provides no evidence.

CONSIDERATION OF EVIDENCE:

1.  The applicant is requesting correction of an alleged error or injustice
which occurred on 31 January 1990.  The application submitted in this case
is dated   26 February 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 served on active duty as an enlisted Soldier from 1967 to
1976. On 5 March 1976 he was appointed a Reserve warrant officer.  His
personnel qualification record shows assignments in various locations
throughout the world, to include Fort Lewis, Washington, Germany, Fort
Hood, Texas, Jordan, Fort McNair, Virginia, and Fort Richardson, Alaska.
He completed numerous military courses throughout his military career.  His
awards include the Meritorious Service Medal, three awards of the Army
Commendation Medal, and the Armed Forces Expeditionary Medal.  The
applicant was a supply technician and was promoted to Chief Warrant Officer
Three on 1 September 1982.

4.  The applicant retired from the Army on 31 January 1990 with more than
    21 years of active federal service.

5.  On 8 November 1989 while assigned to Fort Richardson, the applicant
received nonjudicial punishment under Article 15, UCMJ (Uniform Code of
Military Justice) for wrongfully appropriating three computer systems,
miscellaneous related computer hardware and software, office supplies, and
office equipment, of a total value of $23,490.00, the property of the
United States government; and stealing computer paper of a total value
greater than $100.00, military property of the United States government.
The punishment imposed was a written reprimand and forfeiture of $1,259.00
pay per month for two months.  The officer administering the punishment
directed that the record of nonjudicial punishment be filed in the
performance fiche of the applicant's OMPF.  The applicant elected not to
appeal.

9.  Army Regulation 600-8-104 governs the composition of the OMPF, and
states in pertinent part that the performance fiche is used for filing
performance, commendatory and disciplinary data.  Once placed in the OMPF,
the document becomes a permanent part of that file.  The document will not
be removed from a fiche or moved to another part of the fiche unless
directed by certain agencies, to include this Board.

DISCUSSION AND CONCLUSIONS:

1.  The record of nonjudicial punishment was properly filed and is now
properly maintained in the applicant's OMPF.  Notwithstanding the
applicant's contention, the retention period has not expired, but is a
permanent part of his record.

2.  There is no injustice in the continued maintenance of the record of
nonjudicial punishment in his OMPF, and the applicant has not provided any
good reason, other than his own desires, for the Board to expunge the
record from his OMPF.

3.  Consequently, there is no basis to expunge the record of nonjudicial
punishment from is OMPF.  Therefore, his request to do so is not granted.


4.  Records show the applicant should have discovered the alleged error or
injustice now under consideration on 31 January 1990; therefore, the time
for the applicant to file a request for correction of any error or
injustice expired on          30 January 1993.  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

___JP___  ___LE __  ___DA __   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.




                                  _____ Jennifer Prater______
                                            CHAIRPERSON



                                    INDEX

|CASE ID                 |AR2004104623                            |
|SUFFIX                  |                                        |
|RECON                   |YYYYMMDD                                |
|DATE BOARDED            |20041214                                |
|TYPE OF DISCHARGE       |(HD, GD, UOTHC, UD, BCD, DD, UNCHAR)    |
|DATE OF DISCHARGE       |YYYYMMDD                                |
|DISCHARGE AUTHORITY     |AR . . . . .                            |
|DISCHARGE REASON        |                                        |
|BOARD DECISION          |DENY                                    |
|REVIEW AUTHORITY        |                                        |
|ISSUES         1.       |126.04                                  |
|2.                      |                                        |
|3.                      |                                        |
|4.                      |                                        |
|5.                      |                                        |
|6.                      |                                        |


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