RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:                              05 JANUARY 2006
      DOCKET NUMBER:         AR20050003611


      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. Jessie B. Strickland          |     |Analyst              |

      The following members, a quorum, were present:

|     |Mr. William Powers                |     |Chairperson          |
|     |Mr. Thomas Ray                    |     |Member               |
|     |Mr. Randolph Fleming              |     |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 he be relieved of pecuniary liability in
regards to a Report of Survey initiated against him on 18 April 1996.

2.  The applicant states, in effect, that he is being charged with the loss
of two pair of coveralls that he in fact did turn in to the supply sergeant
for re-issue to his replacement.  However, the supply sergeant did not
annotate his records accordingly and he is now being charged for those
items.  He goes on to state that he believes that the action was taken
against him because he (the applicant) reported the supply sergeant to the
Inspector General’s office because of shoddy record keeping and because his
commander had refused to process his request for transfer until ordered to
do so by the battalion commander.

3.  The applicant provides an enclosure sheet listing the 24 (list shows
21) enclosures he provides with his application.

CONSIDERATION OF EVIDENCE:

1.  The applicant is requesting correction of an alleged injustice which
occurred on 31 October 1996.  The application submitted in this case was
received on 10 March 2005.

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.  He was born on 4 June 1955 and graduated from the State University of
New York – Oswego in 1982.  He enlisted in the Regular Army in the pay
grade of E-3 on 17 January 1984, for a period of 3 years and training as a
unit supply specialist.

4.  He completed his basic training at Fort Knox, Kentucky and his advanced
individual training (AIT) at Fort Lee, Virginia.  Upon completion of his
AIT he was transferred to Fort Dix, New Jersey for duty as a supply
specialist in the office of the Post Chaplain.  He was advanced to the pay
grade of E-4 on 17 May 1984.

5.  On 19 November 1984, nonjudicial punishment was imposed against him for
dereliction in his duties as a supply specialist.  His punishment consisted
of a reduction to the pay grade of E-3 (suspended), a forfeiture of pay,
extra duty, restriction, and an oral reprimand.

6.  On 21 December 1984, the applicant’s commander informed him that he was
initiating action to discharge him from the Army under the provisions of
Army Regulation 635-200, chapter 13, for unsatisfactory performance.  He
cited as the basis for his recommendation, the applicant’s repeated
unsatisfactory and substandard performance related to poor property
accountability practices, failure to respond to repeated counseling
sessions, his lackadaisical attitude, and his inability to get along with
others.

7.  After consulting with counsel, the applicant waived all of his rights
and declined the opportunity to submit matters in his own behalf.

8.  The appropriate authority approved the recommendation for discharge and
directed that he be furnished a general discharge.  Accordingly, he was
discharged under honorable conditions on 31 December 1984, under the
provisions of Army Regulation 635-200, chapter 13, for unsatisfactory
performance.  He had served 11 months and 14 days of total active service.

9.  He applied to the Army Discharge Review Board (ADRB) for an upgrade of
his discharge and on 1 February 1988, the ADRB in a three to two split
decision granted his request to upgrade the character of his service to
honorable.

10.  On 17 December 1990, he enlisted in the New York Army National Guard
(NYARNG) for a period of 4 years.  He was initially assigned as a tank
crewman with Company D, 1st Battalion, 127th Armor Regiment in Cortland,
New York.  He remained there until 15 December 1995 when he was transferred
to the 204th Engineer Battalion in Binghampton, New York.  At the time of
his transfer, the supply sergeant cleared him from supply with a statement
indicating that a report of survey had been initiated against the applicant
for the missing supply items.

11.  On 18 July 1996, a Report of Survey was completed at the request of
the applicant’s former commander (Company D, 127th Armor Regiment) in which
the applicant was found pecuniary liable for the negligent loss of two sets
of coveralls valued at $213.03.  The applicant was provided the approved
Report of Survey on 23 September 1996 for completion and rebuttal if
necessary.

12.  The applicant responded to the Report of Survey on 10 October 1996
asserting that he had turned the items in to the supply sergeant who had
indicated that his records would be annotated and failed to do so.  He
further indicated that the coveralls had been immediately reissued to his
replacement.  However, a review of his replacement’s clothing records
indicate that he was issued his coveralls on 3 and 4 June 1995,
approximately 2 months after the       7 – 9 April 1995 date the applicant
claimed to have turned his coveralls in to the supply sergeant.

13.  On 31 October 1996, he was honorably discharged on the expiration of
his term of service (ETS).  He had served 5 years, 10 months, and 14 days
of service.

14.  A review of the documents provided by the applicant fail to establish
conclusively that he turned in the two pairs of coveralls he was issued.

15.  Army Regulation 735-5 provides policies and procedures for
accountability of Army property and provides the procedures for conducting
reports of survey.  It provides, in pertinent part, that a report of survey
documents the circumstances concerning the loss, damage, or destruction of
government property and serves as, or supports a voucher for adjusting
property from accountable records.  It also documents a charge of financial
liability assessed against an individual or entity, or provides for relief
from financial liability.  A report of survey is mandatory when negligence
or willful misconduct is suspected as the cause, and the individual does
not admit liability and refuses to make voluntary reimbursement to the
government for the full value of the loss, less depreciation.
Supplementation of the regulation is prohibited without prior approval from
the Director, United States (U.S.) Army Logistics Integration Agency in New
Cumberland, Pennsylvania.

DISCUSSION AND CONCLUSIONS:

1.  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.

2.  The applicant’s contention that he turned in the coveralls to the
supply sergeant and trusted the sergeant to annotate his records
accordingly has been noted and found to be without merit.  This is
especially true given the fact that the applicant has provided sufficient
documentation to establish the turn-in of other items that were originally
deemed outstanding.  However, he has failed to do so with the coveralls.

3.  It is also noted that the applicant was formally trained as a supply
specialist and should have been familiar with the procedures for supply
accountability, more so than the average Soldier.

4.  Therefore, lacking sufficient evidence to establish that the missing
items were in fact turned in as the applicant contends, there appears to be
no basis to relieve him of pecuniary liability in this matter.

5.  Records show the applicant should have discovered the alleged error or
injustice now under consideration on 31 October 1996; therefore, the time
for the applicant to file a request for correction of any error or
injustice expired on 30 October 1999.  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

____WP_  ____TR__  ___RF __  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.




            _____William Powers_________________
                    CHAIRPERSON

                                    INDEX

|CASE ID                 |AR20050003611                           |
|SUFFIX                  |                                        |
|RECON                   |                                        |
|DATE BOARDED            |2006/01/05                              |
|TYPE OF DISCHARGE       |HD                                      |
|DATE OF DISCHARGE       |19961031                                |
|DISCHARGE AUTHORITY     |NGR 600-200. . . . .                    |
|DISCHARGE REASON        |ETS                                     |
|BOARD DECISION          |(DENY)                                  |
|REVIEW AUTHORITY        |AR 15-185                               |
|ISSUES                  |1024/ros                                |
|1.116.0100              |                                        |
|2.                      |                                        |
|3.                      |                                        |
|4.                      |                                        |
|5.                      |                                        |
|6.                      |                                        |


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