RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:                 02 MARCH 2006
      DOCKET NUMBER:         AR20050005857


      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. Jerome Pionk                  |     |Member               |
|     |Ms. Peguine Taylor                |     |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 report of separation (DD Form 214) be
corrected to reflect his rank as SP4.

2.  The applicant states that nonjudicial punishment (NJP) was imposed
against him just a couple of months prior to his discharge and he was
reduced in grade from SP4 to Private First Class.  He goes on to state that
he was supposed to get his rank back in about 2 months; however, he was
discharged for an “Early Out” before it was restored.  He goes on to state
that he completed his technical school and although it was after his
discharge, he should have received his rank back and gotten a new DD Form
214.

3.  The applicant provides no additional documents with his application.

CONSIDERATION OF EVIDENCE:

1.  The applicant is requesting correction of an alleged or injustice which
occurred on 23 December 1970.  The application submitted in this case was
received on 7 April 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 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.  He was inducted in Newark, New Jersey, on 19 March 1969.  He completed
his training and was transferred to Fort Carson, Colorado, on 29 October
1969, for duty as an ambulance driver.  He was advanced to the pay grade of
E-3 on 17 November 1969 and to the pay grade of E-4 on 27 May 1970.

4.  On 26 October 1970, NJP was imposed against him for disobeying a lawful
order from a superior noncommissioned officer.  His punishment consisted of
a reduction to the pay grade of E-3 (suspended for 90 days, unless sooner
vacated), a forfeiture of pay (suspended for 90 days) and extra duty for 14
days.  The applicant did not appeal the punishment.

5.  Although not explained in the available records, on 18 November 1970,
the applicant’s commander vacated the suspended punishment pertaining to
his reduction to the pay grade of E-3.

6.  On 24 November 1970, the applicant submitted a request for early
separation to attend a Vocational School in New Jersey.  He requested a
separation date of 23 December 1970.

7.  His company commander recommended disapproval of the applicant’s
request, indicating that the applicant had not earned the privilege of an
early separation, as evidenced by receiving NJP twice for misconduct and
his failure to respond to counseling regarding his attitude and his
actions.  Nevertheless, his request was approved by the appropriate
authority on 11 December 1970.

8.  Accordingly, he was honorably discharged on 23 December 1970 in the pay
grade of E-3, under the provisions of Army Regulation 635-200, chapter 5,
due to early release to attend school.  He had served 1 year, 9 months and
5 days of total active service.

9.  AR 27-10, Military Justice provides, in pertinent part, that punishment
will not be imposed unless the commander is convinced beyond a reasonable
doubt that the soldier committed the offense.  If the commander decides to
impose the punishment he or she will announce the punishment to the soldier
and explain the soldier’s appellate rights and procedures.  Paragraph 3-23
of that regulation provides, in pertinent part, that the imposing
commander, a successor in command or the next superior authority may remit,
mitigate, suspend, vacate or set aside punishments imposed under NJP.

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.  It appears that the NJP was imposed in compliance with applicable laws,
regulations, and policies by a commander empowered to do so.  The
punishment was not disproportionate to the offense and there is no evidence
of any violations of the applicant’s rights.

3.  It also appears that his sentence was properly vacated and that he was
reduced to the pay grade of E-3 due to subsequent misconduct while he was
serving on a suspended punishment.

4.  The applicant has failed to show through the evidence submitted with
his application or the evidence of record that he was improperly reduced to
the pay grade of E-3 or that his rank should have been restored.
Accordingly, there appears to be no basis to approve his request.

5.  Records show the applicant should have discovered the alleged error or
injustice now under consideration on 23 December 1970; therefore, the time
for the applicant to file a request for correction of any error or
injustice expired on 22 December 1973.  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__  ___JP___  ___PT  __  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                 |AR20050005857                           |
|SUFFIX                  |                                        |
|RECON                   |                                        |
|DATE BOARDED            |20060302                                |
|TYPE OF DISCHARGE       |HD                                      |
|DATE OF DISCHARGE       |19701223                                |
|DISCHARGE AUTHORITY     |AR 635-200                              |
|DISCHARGE REASON        |Early Release to Attend School          |
|BOARD DECISION          |DENY                                    |
|REVIEW AUTHORITY        |AR 15-185                               |
|ISSUES                  |322/RED IN RK                           |
|1.133.0000              |                                        |
|2.                      |                                        |
|3.                      |                                        |
|4.                      |                                        |
|5.                      |                                        |
|6.                      |                                        |


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